Brown v. Entertainment Merchants Assn.

(Slip Opinion) OCTOBER TERM, 2010 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

BROWN, GOVERNOR OF CALIFORNIA, ET AL. v.

ENTERTAINMENT MERCHANTS ASSOCIATION ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

No. 08–1448. Argued November 2, 2010—Decided June 27, 2011

Respondents, representing the video-game and software industries,

filed a preenforcement challenge to a California law that restricts the

sale or rental of violent video games to minors. The Federal District

Court concluded that the Act violated the First Amendment and

permanently enjoined its enforcement. The Ninth Circuit affirmed.

Held: The Act does not comport with the First Amendment. Pp. 2–18.

(a) Video games qualify for First Amendment protection. Like pro

tected books, plays, and movies, they communicate ideas through fa

miliar literary devices and features distinctive to the medium. And

“the basic principles of freedom of speech . . . do not vary” with a new

and different communication medium. Joseph Burstyn, Inc. v. Wil

son, 343 U. S. 495, 503. The most basic principle—that government

lacks the power to restrict expression because of its message, ideas,

subject matter, or content, Ashcroft v. American Civil Liberties Un

ion, 535 U. S. 564, 573—is subject to a few limited exceptions for his

torically unprotected speech, such as obscenity, incitement, and fight

ing words. But a legislature cannot create new categories of

unprotected speech simply by weighing the value of a particular

category against its social costs and then punishing it if it fails the

test. See United States v. Stevens, 559 U. S. ___, ___. Unlike the

New York law upheld in Ginsberg v. New York, 390 U. S. 629, Cali

fornia’s Act does not adjust the boundaries of an existing category of

unprotected speech to ensure that a definition designed for adults is

not uncritically applied to children. Instead, the State wishes to cre

ate a wholly new category of content-based regulation that is permis

sible only for speech directed at children. That is unprecedented and

2 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Syllabus

mistaken. This country has no tradition of specially restricting chil

dren’s access to depictions of violence. And California’s claim that

“interactive” video games present special problems, in that the player

participates in the violent action on screen and determines its out

come, is unpersuasive. Pp. 2–11.

(b) Because the Act imposes a restriction on the content of pro

tected speech, it is invalid unless California can demonstrate that it

passes strict scrutiny, i.e., it is justified by a compelling government

interest and is narrowly drawn to serve that interest. R. A. V. v. St.

Paul, 505 U. S. 377, 395. California cannot meet that standard. Psy

chological studies purporting to show a connection between exposure

to violent video games and harmful effects on children do not prove

that such exposure causes minors to act aggressively. Any demon

strated effects are both small and indistinguishable from effects pro

duced by other media. Since California has declined to restrict those

other media, e.g., Saturday morning cartoons, its video-game regula

tion is wildly underinclusive, raising serious doubts about whether

the State is pursuing the interest it invokes or is instead disfavoring

a particular speaker or viewpoint. California also cannot show that

the Act’s restrictions meet the alleged substantial need of parents

who wish to restrict their children’s access to violent videos. The

video-game industry’s voluntary rating system already accomplishes

that to a large extent. Moreover, as a means of assisting parents the

Act is greatly overinclusive, since not all of the children who are pro

hibited from purchasing violent video games have parents who dis

approve of their doing so. The Act cannot satisfy strict scrutiny.

Pp. 11–18.

556 F. 3d 950, affirmed.

SCALIA, J., delivered the opinion of the Court, in which KENNEDY,

GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opin

ion concurring in the judgment, in which ROBERTS, C. J., joined. THO-

MAS, J., and BREYER, J., filed dissenting opinions.

Cite as: 564 U. S. ____ (2011) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1448

_________________

EDMUND G. BROWN, JR., GOVERNOR OF CAL-

IFORNIA, ET AL., PETITIONERS v. ENTERTAIN-

MENT MERCHANTS ASSOCIATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 27, 2011]

JUSTICE SCALIA delivered the opinion of the Court.

We consider whether a California law imposing restric

tions on violent video games comports with the First

Amendment.

I

California Assembly Bill 1179 (2005), Cal. Civ. Code

Ann. §§1746–1746.5 (West 2009) (Act), prohibits the sale

or rental of “violent video games” to minors, and requires

their packaging to be labeled “18.” The Act covers games

“in which the range of options available to a player in

cludes killing, maiming, dismembering, or sexually as

saulting an image of a human being, if those acts are

depicted” in a manner that “[a] reasonable person, consid

ering the game as a whole, would find appeals to a deviant

or morbid interest of minors,” that is “patently offensive to

prevailing standards in the community as to what is suit

able for minors,” and that “causes the game, as a whole, to

lack serious literary, artistic, political, or scientific value

for minors.” §1746(d)(1)(A). Violation of the Act is pun

ishable by a civil fine of up to $1,000. §1746.3.

2 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

Respondents, representing the video-game and software

industries, brought a preenforcement challenge to the Act

in the United States District Court for the Northern Dis

trict of California. That court concluded that the Act

violated the First Amendment and permanently enjoined

its enforcement. Video Software Dealers Assn. v. Schwar

zenegger, No. C–05–04188 RMW (2007), App. to Pet. for

Cert. 39a. The Court of Appeals affirmed, Video Software

Dealers Assn. v. Schwarzenegger, 556 F. 3d 950 (CA9

2009), and we granted certiorari, 559 U. S. ____ (2010).

II

California correctly acknowledges that video games

qualify for First Amendment protection. The Free Speech

Clause exists principally to protect discourse on public

matters, but we have long recognized that it is difficult to

distinguish politics from entertainment, and dangerous to

try. “Everyone is familiar with instances of propaganda

through fiction. What is one man’s amusement, teaches

another’s doctrine.” Winters v. New York, 333 U. S. 507,

510 (1948). Like the protected books, plays, and movies

that preceded them, video games communicate ideas—and

even social messages—through many familiar literary

devices (such as characters, dialogue, plot, and music) and

through features distinctive to the medium (such as the

player’s interaction with the virtual world). That suffices

to confer First Amendment protection. Under our Consti

tution, “esthetic and moral judgments about art and lit

erature . . . are for the individual to make, not for the

Government to decree, even with the mandate or approval

of a majority.” United States v. Playboy Entertainment

Group, Inc., 529 U. S. 803, 818 (2000). And whatever the

challenges of applying the Constitution to ever-advancing

technology, “the basic principles of freedom of speech and

the press, like the First Amendment’s command, do not

vary” when a new and different medium for communica

Cite as: 564 U. S. ____ (2011) 3

Opinion of the Court

tion appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S.

495, 503 (1952).

The most basic of those principles is this: “[A]s a general

matter, . . . government has no power to restrict expres

sion because of its message, its ideas, its subject matter, or

its content.” Ashcroft v. American Civil Liberties Union,

535 U. S. 564, 573 (2002) (internal quotation marks omit

ted). There are of course exceptions. “ ‘From 1791 to the

present,’ . . . the First Amendment has ‘permitted restric

tions upon the content of speech in a few limited areas,’

and has never ‘include[d] a freedom to disregard these

traditional limitations.’ ” United States v. Stevens, 559

U. S. ___, ___ (2010) (slip op., at 5) (quoting R. A. V. v. St.

Paul, 505 U. S. 377, 382–383 (1992)). These limited ar

eas—such as obscenity, Roth v. United States, 354 U. S.

476, 483 (1957), incitement, Brandenburg v. Ohio, 395

U. S. 444, 447–449 (1969) (per curiam), and fighting

words, Chaplinsky v. New Hampshire, 315 U. S. 568,

572 (1942)—represent “well-defined and narrowly limited

classes of speech, the prevention and punishment of which

have never been thought to raise any Constitutional prob

lem,” id., at 571–572.

Last Term, in Stevens, we held that new categories of

unprotected speech may not be added to the list by a

legislature that concludes certain speech is too harmful to

be tolerated. Stevens concerned a federal statute purport

ing to criminalize the creation, sale, or possession of cer

tain depictions of animal cruelty. See 18 U. S. C. §48

(amended 2010). The statute covered depictions “in which

a living animal is intentionally maimed, mutilated, tor

tured, wounded, or killed” if that harm to the animal was

illegal where the “the creation, sale, or possession t[ook]

place,” §48(c)(1). A saving clause largely borrowed from

our obscenity jurisprudence, see Miller v. California, 413

U. S. 15, 24 (1973), exempted depictions with “serious

religious, political, scientific, educational, journalistic,

4 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

historical, or artistic value,” §48(b). We held that statute

to be an impermissible content-based restriction on

speech. There was no American tradition of forbidding the

depiction of animal cruelty—though States have long had

laws against committing it.

The Government argued in Stevens that lack of a his

torical warrant did not matter; that it could create new

categories of unprotected speech by applying a “simple

balancing test” that weighs the value of a particular cate

gory of speech against its social costs and then punishes

that category of speech if it fails the test. Stevens, 559

U. S., at ___ (slip op., at 7). We emphatically rejected that

“startling and dangerous” proposition. Ibid. “Maybe there

are some categories of speech that have been historically

unprotected, but have not yet been specifically identified

or discussed as such in our case law.” Id., at ___ (slip op.,

at 9). But without persuasive evidence that a novel re

striction on content is part of a long (if heretofore unrec

ognized) tradition of proscription, a legislature may not

revise the “judgment [of] the American people,” embodied

in the First Amendment, “that the benefits of its restric

tions on the Government outweigh the costs.” Id., at ___

(slip op., at 7).

That holding controls this case.1 As in Stevens, Califor

——————

1 JUSTICE ALITO distinguishes Stevens on several grounds that seem to

us ill founded. He suggests, post, at 10 (opinion concurring in judg

ment), that Stevens did not apply strict scrutiny. If that is so (and we

doubt it), it would make this an a fortiori case. He says, post, at 9, 10,

that the California Act punishes the sale or rental rather than the

“creation” or “possession” of violent depictions. That distinction ap

pears nowhere in Stevens itself, and for good reason: It would make

permissible the prohibition of printing or selling books—though not the

writing of them. Whether government regulation applies to creating,

distributing, or consuming speech makes no difference. And finally,

JUSTICE ALITO points out, post, at 10, that Stevens “left open the possi

bility that a more narrowly drawn statute” would be constitutional.

True, but entirely irrelevant. Stevens said, 559 U. S., at ___ (slip op., at

Cite as: 564 U. S. ____ (2011) 5

Opinion of the Court

nia has tried to make violent-speech regulation look like

obscenity regulation by appending a saving clause re

quired for the latter. That does not suffice. Our cases

have been clear that the obscenity exception to the First

Amendment does not cover whatever a legislature finds

shocking, but only depictions of “sexual conduct,” Miller,

supra, at 24. See also Cohen v. California, 403 U. S. 15,

20 (1971); Roth, supra, at 487, and n. 20.

Stevens was not the first time we have encountered and

rejected a State’s attempt to shoehorn speech about vio

lence into obscenity. In Winters, we considered a New

York criminal statute “forbid[ding] the massing of stories

of bloodshed and lust in such a way as to incite to crime

against the person,” 333 U. S., at 514. The New York

Court of Appeals upheld the provision as a law against

obscenity. “[T]here can be no more precise test of written

indecency or obscenity,” it said, “than the continuing and

changeable experience of the community as to what types

of books are likely to bring about the corruption of public

morals or other analogous injury to the public order. ” Id.,

at 514 (internal quotation marks omitted). That is of

course the same expansive view of governmental power to

abridge the freedom of speech based on interest-balancing

that we rejected in Stevens. Our opinion in Winters, which

concluded that the New York statute failed a heightened

vagueness standard applicable to restrictions upon speech

entitled to First Amendment protection, 333 U. S., at 517–

519, made clear that violence is not part of the obscenity

that the Constitution permits to be regulated. The speech

reached by the statute contained “no indecency or obscen

ity in any sense heretofore known to the law.” Id., at 519.

——————

19), that the “crush-video” statute at issue there might pass muster if it

were limited to videos of acts of animal cruelty that violated the law

where the acts were performed. There is no contention that any of the

virtual characters depicted in the imaginative videos at issue here are

criminally liable.

6 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

Because speech about violence is not obscene, it is of no

consequence that California’s statute mimics the New

York statute regulating obscenity-for-minors that we

upheld in Ginsberg v. New York, 390 U. S. 629 (1968).

That case approved a prohibition on the sale to minors of

sexual material that would be obscene from the perspec

tive of a child.2 We held that the legislature could

“adjus[t] the definition of obscenity ‘to social realities by

permitting the appeal of this type of material to be as

sessed in terms of the sexual interests . . .’ of . . . minors. ”

Id., at 638 (quoting Mishkin v. New York, 383 U. S. 502,

509 (1966)). And because “obscenity is not protected

expression,” the New York statute could be sustained so

long as the legislature’s judgment that the proscribed

materials were harmful to children “was not irrational.”

390 U. S., at 641.

The California Act is something else entirely. It does

not adjust the boundaries of an existing category of unpro

tected speech to ensure that a definition designed for

adults is not uncritically applied to children. California

does not argue that it is empowered to prohibit selling

offensively violent works to adults—and it is wise not to,

since that is but a hair’s breadth from the argument re

jected in Stevens. Instead, it wishes to create a wholly

new category of content-based regulation that is permissi

ble only for speech directed at children.

That is unprecedented and mistaken. “[M]inors are

——————

2 The statute in Ginsberg restricted the sale of certain depictions of

“nudity, sexual conduct, sexual excitement, or sado-masochistic abuse,”

that were “‘[h]armful to minors.’ ” A depiction was harmful to minors if it:

“(i) predominantly appeals to the prurient, shameful or morbid

interests of minors, and

“(ii) is patently offensive to prevailing standards in the adult commu

nity as a whole with respect to what is suitable material for minors, and

“(iii) is utterly without redeeming social importance for minors.” 390

U. S., at 646 (Appendix A to opinion of the Court) (quoting N. Y. Penal

Law §484–h(1)(f)).

Cite as: 564 U. S. ____ (2011) 7

Opinion of the Court

entitled to a significant measure of First Amendment

protection, and only in relatively narrow and well-defined

circumstances may government bar public dissemination

of protected materials to them.” Erznoznik v. Jackson

ville, 422 U. S. 205, 212–213 (1975) (citation omitted). No

doubt a State possesses legitimate power to protect chil

dren from harm, Ginsberg, supra, at 640–641; Prince v.

Massachusetts, 321 U. S. 158, 165 (1944), but that does

not include a free-floating power to restrict the ideas to

which children may be exposed. “Speech that is neither

obscene as to youths nor subject to some other legitimate

proscription cannot be suppressed solely to protect the

young from ideas or images that a legislative body thinks

unsuitable for them.” Erznoznik, supra, at 213–214.3

——————

3 JUSTICE THOMAS ignores the holding of Erznoznik, and denies that

persons under 18 have any constitutional right to speak or be spoken to

without their parents’ consent. He cites no case, state or federal,

supporting this view, and to our knowledge there is none. Most of his

dissent is devoted to the proposition that parents have traditionally had

the power to control what their children hear and say. This is true

enough. And it perhaps follows from this that the state has the power

to enforce parental prohibitions—to require, for example, that the

promoters of a rock concert exclude those minors whose parents have

advised the promoters that their children are forbidden to attend. But

it does not follow that the state has the power to prevent children from

hearing or saying anything without their parents’ prior consent. The

latter would mean, for example, that it could be made criminal to admit

persons under 18 to a political rally without their parents’ prior written

consent—even a political rally in support of laws against corporal

punishment of children, or laws in favor of greater rights for minors.

And what is good for First Amendment rights of speech must be good

for First Amendment rights of religion as well: It could be made crimi

nal to admit a person under 18 to church, or to give a person under 18 a

religious tract, without his parents’ prior consent. Our point is not, as

JUSTICE THOMAS believes, post, at 16, n. 2, merely that such laws are

“undesirable.” They are obviously an infringement upon the religious

freedom of young people and those who wish to proselytize young

people. Such laws do not enforce parental authority over children’s

speech and religion; they impose governmental authority, subject only

8 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

California’s argument would fare better if there were a

longstanding tradition in this country of specially restrict

ing children’s access to depictions of violence, but there is

none. Certainly the books we give children to read—or

read to them when they are younger—contain no shortage

of gore. Grimm’s Fairy Tales, for example, are grim in

deed. As her just deserts for trying to poison Snow White,

the wicked queen is made to dance in red hot slippers “till

she fell dead on the floor, a sad example of envy and jeal

ousy.” The Complete Brothers Grimm Fairy Tales 198

(2006 ed.). Cinderella’s evil stepsisters have their eyes

pecked out by doves. Id., at 95. And Hansel and Gretel

(children!) kill their captor by baking her in an oven. Id.,

at 54.

High-school reading lists are full of similar fare.

Homer’s Odysseus blinds Polyphemus the Cyclops by

grinding out his eye with a heated stake. The Odyssey of

Homer, Book IX, p. 125 (S. Butcher & A. Lang transls.

1909) (“Even so did we seize the fiery-pointed brand and

whirled it round in his eye, and the blood flowed about the

heated bar. And the breath of the flame singed his eyelids

and brows all about, as the ball of the eye burnt away, and

the roots thereof crackled in the flame”). In the Inferno,

Dante and Virgil watch corrupt politicians struggle to stay

submerged beneath a lake of boiling pitch, lest they be

skewered by devils above the surface. Canto XXI, pp.

187–189 (A. Mandelbaum transl. Bantam Classic ed.

1982). And Golding’s Lord of the Flies recounts how a

schoolboy called Piggy is savagely murdered by other

——————

to a parental veto. In the absence of any precedent for state control,

uninvited by the parents, over a child’s speech and religion (JUSTICE

THOMAS cites none), and in the absence of any justification for such

control that would satisfy strict scrutiny, those laws must be unconsti

tutional. This argument is not, as JUSTICE THOMAS asserts, “circular,”

ibid. It is the absence of any historical warrant or compelling justifica

tion for such restrictions, not our ipse dixit, that renders them invalid.

Cite as: 564 U. S. ____ (2011) 9

Opinion of the Court

children while marooned on an island. W. Golding, Lord

of the Flies 208–209 (1997 ed.).4

This is not to say that minors’ consumption of violent

entertainment has never encountered resistance. In the

1800’s, dime novels depicting crime and “penny dreadfuls”

(named for their price and content) were blamed in some

quarters for juvenile delinquency. See Brief for Cato

Institute as Amicus Curiae 6–7. When motion pictures

came along, they became the villains instead. “The days

when the police looked upon dime novels as the most

dangerous of textbooks in the school for crime are drawing

to a close. . . . They say that the moving picture machine

. . . tends even more than did the dime novel to turn the

thoughts of the easily influenced to paths which some

times lead to prison.” Moving Pictures as Helps to Crime,

N. Y. Times, Feb. 21, 1909, quoted in Brief for Cato Insti

tute, at 8. For a time, our Court did permit broad censor

ship of movies because of their capacity to be “used for

evil,” see Mutual Film Corp. v. Industrial Comm’n of Ohio,

236 U. S. 230, 242 (1915), but we eventually reversed

course, Joseph Burstyn, Inc., 343 U. S., at 502; see also

Erznoznik, supra, at 212–214 (invalidating a drive-in

——————

4 JUSTICE ALITO accuses us of pronouncing that playing violent video

games “is not different in ‘kind’ ” from reading violent literature. Post,

at 2. Well of course it is different in kind, but not in a way that causes

the provision and viewing of violent video games, unlike the provision

and reading of books, not to be expressive activity and hence not to

enjoy First Amendment protection. Reading Dante is unquestionably

more cultured and intellectually edifying than playing Mortal Kombat.

But these cultural and intellectual differences are not constitutional

ones. Crudely violent video games, tawdry TV shows, and cheap novels

and magazines are no less forms of speech than The Divine Comedy,

and restrictions upon them must survive strict scrutiny—a question to

which we devote our attention in Part III, infra. Even if we can see in

them “nothing of any possible value to society . . . , they are as much

entitled to the protection of free speech as the best of literature.”

Winters v. New York, 333 U. S. 507, 510 (1948).

10 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

movies restriction designed to protect children). Radio

dramas were next, and then came comic books. Brief for

Cato Institute, at 10–11. Many in the late 1940’s and

early 1950’s blamed comic books for fostering a “preoccu

pation with violence and horror” among the young, leading

to a rising juvenile crime rate. See Note, Regulation of

Comic Books, 68 Harv. L. Rev. 489, 490 (1955). But efforts

to convince Congress to restrict comic books failed. Brief

for Comic Book Legal Defense Fund as Amicus Curiae 11–

15.5 And, of course, after comic books came television and

music lyrics.

California claims that video games present special

problems because they are “interactive,” in that the player

participates in the violent action on screen and determines

its outcome. The latter feature is nothing new: Since

at least the publication of The Adventures of You: Sugar

cane Island in 1969, young readers of choose-your-own

adventure stories have been able to make decisions that

determine the plot by following instructions about which

page to turn to. Cf. Interactive Digital Software Assn. v.

St. Louis County, 329 F. 3d 954, 957–958 (CA8 2003). As

for the argument that video games enable participation in

the violent action, that seems to us more a matter of de

gree than of kind. As Judge Posner has observed, all

——————

5 The crusade against comic books was led by a psychiatrist, Frederic

Wertham, who told the Senate Judiciary Committee that “as long as

the crime comic books industry exists in its present forms there are no

secure homes.” Juvenile Delinquency (Comic Books): Hearings before

the Subcommittee to Investigate Juvenile Delinquency, 83d Cong., 2d

Sess., 84 (1954). Wertham’s objections extended even to Superman

comics, which he described as “particularly injurious to the ethical

development of children.” Id., at 86. Wertham’s crusade did convince

the New York Legislature to pass a ban on the sale of certain comic

books to minors, but it was vetoed by Governor Thomas Dewey on the

ground that it was unconstitutional given our opinion in Winters,

supra. See People v. Bookcase, Inc., 14 N. Y. 2d 409, 412–413, 201 N. E.

2d 14, 15–16 (1964).

Cite as: 564 U. S. ____ (2011) 11

Opinion of the Court

literature is interactive. “[T]he better it is, the more

interactive. Literature when it is successful draws the

reader into the story, makes him identify with the charac

ters, invites him to judge them and quarrel with them, to

experience their joys and sufferings as the reader’s own.”

American Amusement Machine Assn. v. Kendrick, 244

F. 3d 572, 577 (CA7 2001) (striking down a similar restric

tion on violent video games).

JUSTICE ALITO has done considerable independent re

search to identify, see post, at 14–15, nn. 13–18, video

games in which “the violence is astounding,” post, at 14.

“Victims are dismembered, decapitated, disemboweled, set

on fire, and chopped into little pieces. . . . Blood gushes,

splatters, and pools.” Ibid. JUSTICE ALITO recounts all

these disgusting video games in order to disgust us—but

disgust is not a valid basis for restricting expression. And

the same is true of JUSTICE ALITO’s description, post, at

14–15, of those video games he has discovered that have a

racial or ethnic motive for their violence—“ ‘ethnic clean

sing’ [of] . . . African Americans, Latinos, or Jews.” To

what end does he relate this? Does it somehow increase

the “aggressiveness” that California wishes to suppress?

Who knows? But it does arouse the reader’s ire, and the

reader’s desire to put an end to this horrible message.

Thus, ironically, JUSTICE ALITO’s argument highlights the

precise danger posed by the California Act: that the ideas

expressed by speech—whether it be violence, or gore, or

racism—and not its objective effects, may be the real

reason for governmental proscription.

III

Because the Act imposes a restriction on the content of

protected speech, it is invalid unless California can dem

onstrate that it passes strict scrutiny—that is, unless it is

justified by a compelling government interest and is nar

rowly drawn to serve that interest. R. A. V., 505 U. S., at

12 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

395. The State must specifically identify an “actual prob

lem” in need of solving, Playboy, 529 U. S., at 822–823,

and the curtailment of free speech must be actually neces

sary to the solution, see R. A. V., supra, at 395. That is a

demanding standard. “It is rare that a regulation restrict

ing speech because of its content will ever be permissible.”

Playboy, supra, at 818.

California cannot meet that standard. At the outset, it

acknowledges that it cannot show a direct causal link

between violent video games and harm to minors. Rather,

relying upon our decision in Turner Broadcasting System,

Inc. v. FCC, 512 U. S. 622 (1994), the State claims that it

need not produce such proof because the legislature can

make a predictive judgment that such a link exists, based

on competing psychological studies. But reliance on

Turner Broadcasting is misplaced. That decision applied

intermediate scrutiny to a content-neutral regulation. Id.,

at 661–662. California’s burden is much higher, and

because it bears the risk of uncertainty, see Playboy,

supra, at 816–817, ambiguous proof will not suffice.

The State’s evidence is not compelling. California relies

primarily on the research of Dr. Craig Anderson and a few

other research psychologists whose studies purport to

show a connection between exposure to violent video

games and harmful effects on children. These studies

have been rejected by every court to consider them,6 and

with good reason: They do not prove that violent video

——————

6 See Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950,

963–964 (CA9 2009); Interactive Digital Software Assn. v. St. Louis

County, 329 F. 3d 954 (CA8 2003); American Amusement Machine Assn.

v. Kendrick, 244 F. 3d 572, 578–579 (CA7 2001); Entertainment Soft

ware Assn. v. Foti, 451 F. Supp. 2d 823, 832–833 (MD La. 2006); Enter

tainment Software Assn. v. Hatch, 443 F. Supp. 2d 1065, 1070 (Minn.

2006), aff ’d, 519 F. 3d 768 (CA8 2008); Entertainment Software Assn. v.

Granholm, 426 F. Supp. 2d 646, 653 (ED Mich. 2006); Entertainment

Software Assn. v. Blagojevich, 404 F. Supp. 2d 1051, 1063 (ND Ill.

2005), aff ’d, 469 F. 3d 641 (CA7 2006).

Cite as: 564 U. S. ____ (2011) 13

Opinion of the Court

games cause minors to act aggressively (which would at

least be a beginning). Instead, “[n]early all of the research

is based on correlation, not evidence of causation, and

most of the studies suffer from significant, admitted flaws

in methodology.” Video Software Dealers Assn. 556 F. 3d,

at 964. They show at best some correlation between expo

sure to violent entertainment and minuscule real-world

effects, such as children’s feeling more aggressive or mak

ing louder noises in the few minutes after playing a vio

lent game than after playing a nonviolent game.7

Even taking for granted Dr. Anderson’s conclusions that

violent video games produce some effect on children’s

feelings of aggression, those effects are both small and

indistinguishable from effects produced by other media.

In his testimony in a similar lawsuit, Dr. Anderson admit

ted that the “effect sizes” of children’s exposure to violent

video games are “about the same” as that produced by

their exposure to violence on television. App. 1263. And

he admits that the same effects have been found when

children watch cartoons starring Bugs Bunny or the Road

Runner, id., at 1304, or when they play video games like

Sonic the Hedgehog that are rated “E” (appropriate for all

ages), id., at 1270, or even when they “vie[w] a picture of a

gun,” id., at 1315–1316.8

——————

7 One study, for example, found that children who had just finished

playing violent video games were more likely to fill in the blank letter

in “explo_e” with a “d” (so that it reads “explode”) than with an “r”

(“explore”). App. 496, 506 (internal quotation marks omitted). The

prevention of this phenomenon, which might have been anticipated

with common sense, is not a compelling state interest.

8JUSTICE ALITO is mistaken in thinking that we fail to take account of

“new and rapidly evolving technology,” post, at 1. The studies in

question pertain to that new and rapidly evolving technology, and fail

to show, with the degree of certitude that strict scrutiny requires, that

this subject-matter restriction on speech is justified. Nor is JUSTICE

ALITO correct in attributing to us the view that “violent video games

really present no serious problem.” Post, at 2. Perhaps they do present

14 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

Of course, California has (wisely) declined to restrict

Saturday morning cartoons, the sale of games rated for

young children, or the distribution of pictures of guns.

The consequence is that its regulation is wildly underin

clusive when judged against its asserted justification,

which in our view is alone enough to defeat it. Underin

clusiveness raises serious doubts about whether the gov

ernment is in fact pursuing the interest it invokes, rather

than disfavoring a particular speaker or viewpoint. See

City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994); Florida

Star v. B. J. F., 491 U. S. 524, 540 (1989). Here, Califor

nia has singled out the purveyors of video games for disfa

vored treatment—at least when compared to booksellers,

cartoonists, and movie producers—and has given no per

suasive reason why.

The Act is also seriously underinclusive in another

respect—and a respect that renders irrelevant the conten

tions of the concurrence and the dissents that video games

——————

a problem, and perhaps none of us would allow our own children to play

them. But there are all sorts of “problems”—some of them surely more

serious than this one—that cannot be addressed by governmental

restriction of free expression: for example, the problem of encouraging

anti-Semitism (National Socialist Party of America v. Skokie, 432 U. S.

43 (1977) (per curiam)), the problem of spreading a political philosophy

hostile to the Constitution (Noto v. United States, 367 U. S. 290 (1961)),

or the problem of encouraging disrespect for the Nation’s flag (Texas v.

Johnson, 491 U. S. 397 (1989)).

JUSTICE BREYER would hold that California has satisfied strict

scrutiny based upon his own research into the issue of the harmfulness

of violent video games. See post, at 20–35 (Appendixes to dissenting

opinion) (listing competing academic articles discussing the harmful

ness vel non of violent video games). The vast preponderance of this

research is outside the record—and in any event we do not see how it

could lead to JUSTICE BREYER’s conclusion, since he admits he cannot

say whether the studies on his side are right or wrong. Post, at 15.

Similarly, JUSTICE ALITO says he is not “sure” whether there are any

constitutionally dispositive differences between video games and other

media. Post, at 2. If that is so, then strict scrutiny plainly has not been

satisfied.

Cite as: 564 U. S. ____ (2011) 15

Opinion of the Court

are qualitatively different from other portrayals of vio

lence. The California Legislature is perfectly willing to

leave this dangerous, mind-altering material in the hands

of children so long as one parent (or even an aunt or uncle)

says it’s OK. And there are not even any requirements as

to how this parental or avuncular relationship is to be

verified; apparently the child’s or putative parent’s, aunt’s,

or uncle’s say-so suffices. That is not how one addresses a

serious social problem.

California claims that the Act is justified in aid of pa

rental authority: By requiring that the purchase of violent

video games can be made only by adults, the Act ensures

that parents can decide what games are appropriate. At

the outset, we note our doubts that punishing third parties

for conveying protected speech to children just in case

their parents disapprove of that speech is a proper gov

ernmental means of aiding parental authority. Accepting

that position would largely vitiate the rule that “only in

relatively narrow and well-defined circumstances may

government bar public dissemination of protected materi

als to [minors].” Erznoznik, 422 U. S., at 212–213.

But leaving that aside, California cannot show that the

Act’s restrictions meet a substantial need of parents who

wish to restrict their children’s access to violent video

games but cannot do so. The video-game industry has in

place a voluntary rating system designed to inform con

sumers about the content of games. The system, imple

mented by the Entertainment Software Rating Board

(ESRB), assigns age-specific ratings to each video game

submitted: EC (Early Childhood); E (Everyone); E10+

(Everyone 10 and older); T (Teens); M (17 and older); and

AO (Adults Only—18 and older). App. 86. The Video

Software Dealers Association encourages retailers to

prominently display information about the ESRB system

in their stores; to refrain from renting or selling adults

only games to minors; and to rent or sell “M” rated games

16 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

to minors only with parental consent. Id., at 47. In 2009,

the Federal Trade Commission (FTC) found that, as a

result of this system, “the video game industry outpaces

the movie and music industries” in “(1) restricting target

marketing of mature-rated products to children; (2) clearly

and prominently disclosing rating information; and (3) re

stricting children’s access to mature-rated products at

retail.” FTC, Report to Congress, Marketing Violent

Entertainment to Children 30 (Dec. 2009), online at http://

www.ftc.gov/os/2009/12/P994511violententertainment.pdf

(as visited June 24, 2011, and available in Clerk of Court’s

case file) (FTC Report). This system does much to ensure

that minors cannot purchase seriously violent games on

their own, and that parents who care about the matter can

readily evaluate the games their children bring home.

Filling the remaining modest gap in concerned-parents’

control can hardly be a compelling state interest.9

And finally, the Act’s purported aid to parental author

ity is vastly overinclusive. Not all of the children who are

forbidden to purchase violent video games on their own

have parents who care whether they purchase violent

video games. While some of the legislation’s effect may

indeed be in support of what some parents of the re

stricted children actually want, its entire effect is only in

support of what the State thinks parents ought to want.

This is not the narrow tailoring to “assisting parents” that

——————

9 JUSTICE BREYER concludes that the remaining gap is compelling

because, according to the FTC’s report, some “20% of those under 17 are

still able to buy M-rated games.” Post, at 18 (citing FTC Report 28).

But some gap in compliance is unavoidable. The sale of alcohol to

minors, for example, has long been illegal, but a 2005 study suggests

that about 18% of retailers still sell alcohol to those under the drinking

age. Brief for State of Rhode Island et al. as Amici Curiae 18. Even if

the sale of violent video games to minors could be deterred further by

increasing regulation, the government does not have a compelling

interest in each marginal percentage point by which its goals are

advanced.

Cite as: 564 U. S. ____ (2011) 17

Opinion of the Court

restriction of First Amendment rights requires.

* * *

California’s effort to regulate violent video games is the

latest episode in a long series of failed attempts to censor

violent entertainment for minors. While we have pointed

out above that some of the evidence brought forward to

support the harmfulness of video games is unpersuasive,

we do not mean to demean or disparage the concerns that

underlie the attempt to regulate them—concerns that may

and doubtless do prompt a good deal of parental oversight.

We have no business passing judgment on the view of the

California Legislature that violent video games (or, for

that matter, any other forms of speech) corrupt the young

or harm their moral development. Our task is only to say

whether or not such works constitute a “well-defined and

narrowly limited clas[s] of speech, the prevention and

punishment of which have never been thought to raise any

Constitutional problem,” Chaplinsky, 315 U. S., at 571–

572 (the answer plainly is no); and if not, whether the

regulation of such works is justified by that high degree of

necessity we have described as a compelling state interest

(it is not). Even where the protection of children is the

object, the constitutional limits on governmental action

apply.

California’s legislation straddles the fence between (1)

addressing a serious social problem and (2) helping con

cerned parents control their children. Both ends are

legitimate, but when they affect First Amendment rights

they must be pursued by means that are neither seriously

underinclusive nor seriously overinclusive. See Church of

Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546

(1993). As a means of protecting children from portrayals

of violence, the legislation is seriously underinclusive, not

only because it excludes portrayals other than video

games, but also because it permits a parental or avuncular

18 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

Opinion of the Court

veto. And as a means of assisting concerned parents it is

seriously overinclusive because it abridges the First

Amendment rights of young people whose parents (and

aunts and uncles) think violent video games are a harm

less pastime. And the overbreadth in achieving one goal is

not cured by the underbreadth in achieving the other.

Legislation such as this, which is neither fish nor fowl,

cannot survive strict scrutiny.

We affirm the judgment below.

It is so ordered.

Cite as: 564 U. S. ____ (2011) 1

ALITO, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1448

_________________

EDMUND G. BROWN, JR., GOVERNOR OF CAL-

IFORNIA, ET AL., PETITIONERS v. ENTERTAIN-

MENT MERCHANTS ASSOCIATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 27, 2011]

JUSTICE ALITO, with whom THE CHIEF JUSTICE joins,

concurring in the judgment.

The California statute that is before us in this case

represents a pioneering effort to address what the state

legislature and others regard as a potentially serious

social problem: the effect of exceptionally violent video

games on impressionable minors, who often spend count

less hours immersed in the alternative worlds that these

games create. Although the California statute is well

intentioned, its terms are not framed with the precision

that the Constitution demands, and I therefore agree with

the Court that this particular law cannot be sustained.

I disagree, however, with the approach taken in the

Court’s opinion. In considering the application of un

changing constitutional principles to new and rapidly

evolving technology, this Court should proceed with cau

tion. We should make every effort to understand the new

technology. We should take into account the possibility

that developing technology may have important societal

implications that will become apparent only with time.

We should not jump to the conclusion that new technology

is fundamentally the same as some older thing with which

we are familiar. And we should not hastily dismiss the

judgment of legislators, who may be in a better position

2 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

than we are to assess the implications of new technology.

The opinion of the Court exhibits none of this caution.

In the view of the Court, all those concerned about the

effects of violent video games—federal and state legisla

tors, educators, social scientists, and parents—are unduly

fearful, for violent video games really present no serious

problem. See ante, at 10–13, 15–16. Spending hour upon

hour controlling the actions of a character who guns down

scores of innocent victims is not different in “kind” from

reading a description of violence in a work of literature.

See ante, at 10–11.

The Court is sure of this; I am not. There are reasons to

suspect that the experience of playing violent video games

just might be very different from reading a book, listening

to the radio, or watching a movie or a television show.

I

Respondents in this case, representing the video-game

industry, ask us to strike down the California law on two

grounds: The broad ground adopted by the Court and the

narrower ground that the law’s definition of “violent video

game,” see Cal. Civ. Code Ann. §1746(d)(1)(A) (West 2009),

is impermissibly vague. See Brief for Respondents 23–61.

Because I agree with the latter argument, I see no need to

reach the broader First Amendment issues addressed by

the Court.1

A

Due process requires that laws give people of ordinary

intelligence fair notice of what is prohibited. Grayned v.

City of Rockford, 408 U. S. 104, 108 (1972). The lack of

such notice in a law that regulates expression “raises

——————

1 It

is well established that a judgment may be affirmed on an alter

native ground that was properly raised but not addressed by the lower

court. Washington v. Confederated Bands and Tribes of Yakima

Nation, 439 U. S. 463, 478, n. 20 (1979).

Cite as: 564 U. S. ____ (2011) 3

ALITO, J., concurring in judgment

special First Amendment concerns because of its obvious

chilling effect on free speech.” Reno v. American Civil

Liberties Union, 521 U. S. 844, 871–872 (1997). Vague

laws force potential speakers to “ ‘steer far wider of the

unlawful zone’ . . . than if the boundaries of the forbidden

areas were clearly marked.” Baggett v. Bullitt, 377 U. S.

360, 372 (1964) (quoting Speiser v. Randall, 357 U. S. 513,

526 (1958)). While “perfect clarity and precise guidance

have never been required even of regulations that restrict

expressive activity,” Ward v. Rock Against Racism, 491

U. S. 781, 794 (1989), “government may regulate in the

area” of First Amendment freedoms “only with narrow

specificity,” NAACP v. Button, 371 U. S. 415, 433 (1963);

see also Hoffman Estates v. Flipside, Hoffman Estates,

Inc., 455 U. S. 489, 499 (1982). These principles apply to

laws that regulate expression for the purpose of protecting

children. See Interstate Circuit, Inc. v. Dallas, 390 U. S.

676, 689 (1968).

Here, the California law does not define “violent video

games” with the “narrow specificity” that the Constitution

demands. In an effort to avoid First Amendment prob

lems, the California Legislature modeled its violent video

game statute on the New York law that this Court upheld

in Ginsberg v. New York, 390 U. S. 629 (1968)—a law that

prohibited the sale of certain sexually related materials to

minors, see id., at 631–633. But the California Legisla

ture departed from the Ginsberg model in an important

respect, and the legislature overlooked important differ

ences between the materials falling within the scope of the

two statutes.

B

The law at issue in Ginsberg prohibited the sale to

minors of materials that were deemed “harmful to mi

nors,” and the law defined “harmful to minors” simply by

adding the words “for minors” to each element of the

4 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

definition of obscenity set out in what were then the

Court’s leading obscenity decisions, see Roth v. United

States, 354 U. S. 476 (1957), and Book Named “John Cle

land’s Memoirs of a Woman of Pleasure” v. Attorney Gen

eral of Mass., 383 U. S. 413 (1966).

Seeking to bring its violent video game law within the

protection of Ginsberg, the California Legislature began

with the obscenity test adopted in Miller v. California, 413

U. S. 15 (1973), a decision that revised the obscenity tests

previously set out in Roth and Memoirs. The legislature

then made certain modifications to accommodate the aim

of the violent video game law.

Under Miller, an obscenity statute must contain a thresh

old limitation that restricts the statute’s scope to specifi

cally described “hard core” materials. See 413 U. S.,

at 23–25, 27. Materials that fall within this “hard core”

category may be deemed to be obscene if three additional

requirements are met:

(1) an “average person, applying contemporary com

munity standards [must] find . . . the work, taken as a

whole, appeals to the prurient interest”;

(2) “the work [must] depic[t] or describ[e], in a pat

ently offensive way, sexual conduct specifically de

fined by the applicable state law; and”

(3) “the work, taken as a whole, [must] lac[k] serious

literary, artistic, political, or scientific value.” Id., at

24 (internal quotation marks omitted).

Adapting these standards, the California law imposes

the following threshold limitation: “[T]he range of options

available to a player [must] includ[e] killing, maiming,

dismembering, or sexually assaulting an image of a hu

man being.” §1746(d)(1). Any video game that meets this

threshold test is subject to the law’s restrictions if it also

satisfies three further requirements:

“(i) A reasonable person, considering the game as a

Cite as: 564 U. S. ____ (2011) 5

ALITO, J., concurring in judgment

whole, would find [the game] appeals to a deviant or

morbid interest of minors.

“(ii) It is patently offensive to prevailing standards

in the community as to what is suitable for minors.

“(iii) It causes the game, as a whole, to lack serious

literary, artistic, political, or scientific value for mi

nors.” §1746(d)(1)(A).2

C

The first important difference between the Ginsberg law

and the California violent video game statute concerns

their respective threshold requirements. As noted, the

Ginsberg law built upon the test for adult obscenity, and

the current adult obscenity test, which was set out in

Miller, requires an obscenity statute to contain a threshold

limitation that restricts the statute’s coverage to specifi

cally defined “hard core” depictions. See 413 U. S., at 23–

25, 27. The Miller Court gave as an example a statute

that applies to only “[p]atently offensive representations

or descriptions of ultimate sexual acts,” “masturbation,

excretory functions, and lewd exhibition of the genitals.”

Id., at 25. The Miller Court clearly viewed this threshold

limitation as serving a vital notice function. “We are

satisfied,” the Court wrote, “that these specific prerequi

sites will provide fair notice to a dealer in such materials

that his public and commercial activities may bring prose

cution.” Id., at 27; see also Reno, supra, at 873 (observing

that Miller’s threshold limitation “reduces the vagueness

——————

2 Under the California law, a game that meets the threshold require

ment set out in text also qualifies as “violent” if it “[e]nables the player

to virtually inflict serious injury upon images of human beings or

characters with substantially human characteristics in a manner which

is especially heinous, cruel, or depraved in that it involves torture or

serious physical abuse to the victim.” §1746(d)(1)(B). In the Court of

Appeals, California conceded that this alternative definition is uncon

stitutional, 556 F. 3d 950, 954, n. 5 (CA9 2009), and therefore only the

requirements set out in text are now before us.

6 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

inherent in the open-ended term ‘patently offensive’ ”).3

By contrast, the threshold requirement of the California

law does not perform the narrowing function served by the

limitation in Miller. At least when Miller was decided,

depictions of “hard core” sexual conduct were not a com

mon feature of mainstream entertainment. But nothing

similar can be said about much of the conduct covered by

the California law. It provides that a video game cannot

qualify as “violent” unless “the range of options available

to a player includes killing, maiming, dismembering, or

sexually assaulting an image of a human being.”

§1746(d)(1).

For better or worse, our society has long regarded many

depictions of killing and maiming4 as suitable features of

popular entertainment, including entertainment that is

widely available to minors. The California law’s threshold

requirement would more closely resemble the limitation in

Miller if it targeted a narrower class of graphic depictions.

Because of this feature of the California law’s threshold

test, the work of providing fair notice is left in large part

to the three requirements that follow, but those elements

are also not up to the task. In drafting the violent video

game law, the California Legislature could have made its

own judgment regarding the kind and degree of violence

that is acceptable in games played by minors (or by minors

in particular age groups). Instead, the legislature relied

on undefined societal or community standards.

——————

3 The provision of New York law under which the petitioner was con

victed in Ginsberg was framed with similar specificity. This provision

applied to depictions of “nudity” and “sexual conduct,” and both those

terms were specifically and unambiguously defined. See 390 U. S., at

645–647 (Appendix A to opinion of the Court).

4 The California law does not define the term “maiming,” nor has the

State cited any decisions from its courts that define the term in this

context. Accordingly, I take the term to have its ordinary meaning,

which includes the infliction of any serious wound, see Webster’s Third

New International Dictionary 1362 (2002) (hereinafter Webster’s).

Cite as: 564 U. S. ____ (2011) 7

ALITO, J., concurring in judgment

One of the three elements at issue here refers expressly

to “prevailing standards in the community as to what is

suitable for minors.” §1746(d)(1)(A)(ii). Another element

points in the same direction, asking whether “[a] reason

able person, considering [a] game as a whole,” would find

that it “appeals to a deviant or morbid interest of minors.”

§1746(d)(1)(A)(i) (emphasis added).

The terms “deviant” and “morbid” are not defined in

the statute, and California offers no reason to think that

its courts would give the terms anything other than their

ordinary meaning. See Reply Brief for Petitioners 5 (argu

ing that “[a] reasonable person can make this judgment

through . . . a common understanding and definition of the

applicable terms”). I therefore assume that “deviant” and

“morbid” carry the meaning that they convey in ordinary

speech. The adjective “deviant” ordinarily means “deviat

ing . . . from some accepted norm,” and the term “morbid”

means “of, relating to, or characteristic of disease.” Web

ster’s 618, 1469. A “deviant or morbid interest” in

violence, therefore, appears to be an interest that de

viates from what is regarded—presumably in accordance

with some generally accepted standard—as normal and

healthy. Thus, the application of the California law is

heavily dependent on the identification of generally ac

cepted standards regarding the suitability of violent enter

tainment for minors.

The California Legislature seems to have assumed that

these standards are sufficiently well known so that a

person of ordinary intelligence would have fair notice as to

whether the kind and degree of violence in a particular

game is enough to qualify the game as “violent.” And

because the Miller test looks to community standards, the

legislature may have thought that the use of undefined

community standards in the violent video game law would

not present vagueness problems.

There is a critical difference, however, between obscen

8 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

ity laws and laws regulating violence in entertainment.

By the time of this Court’s landmark obscenity cases in

the 1960’s, obscenity had long been prohibited, see Roth,

354 U. S., at 484–485, and this experience had helped to

shape certain generally accepted norms concerning ex

pression related to sex.

There is no similar history regarding expression related

to violence. As the Court notes, classic literature contains

descriptions of great violence, and even children’s stories

sometimes depict very violent scenes. See ante, at 8–9.

Although our society does not generally regard all depic

tions of violence as suitable for children or adolescents, the

prevalence of violent depictions in children’s literature and

entertainment creates numerous opportunities for reason

able people to disagree about which depictions may excite

“deviant” or “morbid” impulses. See Edwards & Berman,

Regulating Violence on Television, 89 Nw. U. L. Rev. 1487,

1523 (1995) (observing that the Miller test would be diffi

cult to apply to violent expression because “there is noth

ing even approaching a consensus on low-value violence”).

Finally, the difficulty of ascertaining the community

standards incorporated into the California law is com

pounded by the legislature’s decision to lump all minors

together. The California law draws no distinction between

young children and adolescents who are nearing the age of

majority.

In response to a question at oral argument, the attorney

defending the constitutionality of the California law said

that the State would accept a narrowing construction of

the law under which the law’s references to “minors”

would be interpreted to refer to the oldest minors—that is,

those just short of 18. Tr. of Oral Arg. 11–12. However,

“it is not within our power to construe and narrow state

laws.” Grayned, 408 U. S., at 110. We can only “ ‘extrapo

late [their] allowable meaning’ ” from the statutory text

and authoritative interpretations of similar laws by courts

Cite as: 564 U. S. ____ (2011) 9

ALITO, J., concurring in judgment

of the State. Ibid. (quoting Garner v. Louisiana, 368 U. S.

157, 174 (1961) (Frankfurter, J., concurring in judgment)).

In this case, California has not provided any evidence

that the California Legislature intended the law to be

limited in this way, or cited any decisions from its courts

that would support an “oldest minors” construction.5

For these reasons, I conclude that the California violent

video game law fails to provide the fair notice that the

Constitution requires. And I would go no further. I would

not express any view on whether a properly drawn statute

would or would not survive First Amendment scrutiny.

We should address that question only if and when it is

necessary to do so.

II

Having outlined how I would decide this case, I will now

briefly elaborate on my reasons for questioning the wis

dom of the Court’s approach. Some of these reasons are

touched upon by the dissents, and while I am not prepared

at this time to go as far as either JUSTICE THOMAS or

JUSTICE BREYER, they raise valid concerns.

A

The Court is wrong in saying that the holding in United

States v. Stevens, 559 U. S. ___ (2010), “controls this case.”

Ante, at 4. First, the statute in Stevens differed sharply

from the statute at issue here. Stevens struck down a law

that broadly prohibited any person from creating, selling,

or possessing depictions of animal cruelty for commercial

gain. The California law involved here, by contrast, is

——————

5 At oral argument, California also proposed that the term “minors”

could be interpreted as referring to the “typical age group of minors”

who play video games. Tr. of Oral Arg. 11. But nothing in the law’s

text supports such a limitation. Nor has California cited any decisions

indicating that its courts would restrict the law in this way. And there

is nothing in the record indicating what this age group might be.

10 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

limited to the sale or rental of violent video games to

minors. The California law imposes no restriction on the

creation of violent video games, or on the possession of

such games by anyone, whether above or below the age of

18. The California law does not regulate the sale or rental

of violent games by adults. And the California law does

not prevent parents and certain other close relatives from

buying or renting violent games for their children or other

young relatives if they see fit.

Second, Stevens does not support the proposition that a

law like the one at issue must satisfy strict scrutiny. The

portion of Stevens on which the Court relies rejected the

Government’s contention that depictions of animal cruelty

were categorically outside the range of any First Amend

ment protection. 559 U. S., at __ (slip op., at 5). Going

well beyond Stevens, the Court now holds that any law

that attempts to prevent minors from purchasing violent

video games must satisfy strict scrutiny instead of the

more lenient standard applied in Ginsberg, 390 U. S. 629,

our most closely related precedent. As a result of today’s

decision, a State may prohibit the sale to minors of what

Ginsberg described as “girlie magazines,” but a State must

surmount a formidable (and perhaps insurmountable)

obstacle if it wishes to prevent children from purchasing

the most violent and depraved video games imaginable.

Third, Stevens expressly left open the possibility that a

more narrowly drawn statute targeting depictions of

animal cruelty might be compatible with the First

Amendment. See 559 U. S., at ___ (slip op., at 19). In this

case, the Court’s sweeping opinion will likely be read by

many, both inside and outside the video-game industry, as

suggesting that no regulation of minors’ access to violent

video games is allowed—at least without supporting evi

dence that may not be realistically obtainable given the

nature of the phenomenon in question.

Cite as: 564 U. S. ____ (2011)

11

ALITO, J., concurring in judgment

B

The Court’s opinion distorts the effect of the California

law. I certainly agree with the Court that the government

has no “free-floating power to restrict the ideas to which

children may be exposed,” ante, at 7, but the California

law does not exercise such a power. If parents want their

child to have a violent video game, the California law does

not interfere with that parental prerogative. Instead, the

California law reinforces parental decisionmaking in

exactly the same way as the New York statute upheld in

Ginsberg. Under both laws, minors are prevented from

purchasing certain materials; and under both laws, par

ents are free to supply their children with these items if

that is their wish.

Citing the video-game industry’s voluntary rating sys

tem, the Court argues that the California law does not

“meet a substantial need of parents who wish to restrict

their children’s access to violent video games but cannot

do so.” Ante, at 15. The Court does not mention the fact

that the industry adopted this system in response to the

threat of federal regulation, Brief for Activision Blizzard,

Inc., as Amicus Curiae 7–10, a threat that the Court’s

opinion may now be seen as largely eliminating. Nor does

the Court acknowledge that compliance with this system

at the time of the enactment of the California law left

much to be desired6—or that future enforcement may

decline if the video-game industry perceives that any

threat of government regulation has vanished. Nor does

——————

6A 2004 Federal Trade Commission Report showed that 69 percent of

unaccompanied children ages 13 to 16 were able to buy M-rated games

and that 56 percent of 13-year-olds were able to buy an M-rated game.

Marketing Violent Entertainment to Children: A Fourth Follow-Up

Review of Industry Practices in the Motion Picture, Music Recording &

Electronic Game Industries 26–28 (July 2004), http://www.ftc.gov/os/

2004/07/040708kidsviolencerpt.pdf (all Internet materials as visited

June 24, 2011, and available in Clerk of Court’s case file).

12 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

the Court note, as JUSTICE BREYER points out, see post, at

11 (dissenting opinion), that many parents today are

simply not able to monitor their children’s use of com

puters and gaming devices.

C

Finally, the Court is far too quick to dismiss the possi

bility that the experience of playing video games (and the

effects on minors of playing violent video games) may be

very different from anything that we have seen before.

Any assessment of the experience of playing video games

must take into account certain characteristics of the video

games that are now on the market and those that are

likely to be available in the near future.

Today’s most advanced video games create realistic

alternative worlds in which millions of players immerse

themselves for hours on end. These games feature visual

imagery and sounds that are strikingly realistic, and in

the near future video-game graphics may be virtually

indistinguishable from actual video footage.7 Many of the

games already on the market can produce high definition

images,8 and it is predicted that it will not be long before

video-game images will be seen in three dimensions.9 It is

also forecast that video games will soon provide sensory

——————

7 See Chayka, Visual Games: Photorealism in Crisis, Kill Screen (May

2011), http://killscreendaily.com/articles/visual-games-photorealism-crisis.

8 To see brief video excerpts from games with highly realistic graph

ics, see Spike TV Video Game Awards 2010—Game of the Year Nomi

nees, GameTrailers.com (Dec. 10, 2010), http://www.gametrailers.com/

video/game-of-spike-tv-vga/707755?type=flv.

9 See Selleck, Sony PS3 Launching 50 3D-Capable Video Games in

the Near Future, SlashGear (Nov. 23, 2010), http://www.slashgear.com/

sony-ps3-launching-50-3d-capable-video-games-in-the-near-future-23115866;

Sofge, Why 3D Doesn’t Work for TV, But Is Great for Gaming, Popu-

lar Mechanics (Mar. 11, 2010), http://www.popularmechanics.com/

technology/digital/gaming/4342437.

Cite as: 564 U. S. ____ (2011) 13

ALITO, J., concurring in judgment

feedback.10 By wearing a special vest or other device, a

player will be able to experience physical sensations sup

posedly felt by a character on the screen.11 Some amici

who support respondents foresee the day when “ ‘virtual

reality shoot-‘em-ups’ ” will allow children to “ ‘actually feel

the splatting blood from the blown-off head’ ” of a victim.

Brief for Reporters Comm. for Freedom of the Press et al.

as Amici Curiae 29 (quoting H. Schechter, Savage Pas

times 18 (2005)).

Persons who play video games also have an unprece

dented ability to participate in the events that take place

in the virtual worlds that these games create. Players can

create their own video-game characters and can use pho

tos to produce characters that closely resemble actual

people. A person playing a sophisticated game can make a

multitude of choices and can thereby alter the course of

the action in the game. In addition, the means by which

players control the action in video games now bear a closer

relationship to the means by which people control action

in the real world. While the action in older games was

often directed with buttons or a joystick, players dictate

the action in newer games by engaging in the same mo

——————

10 T. Chatfield, Fun Inc.: Why Games are the Twenty-first Century’s

Most Serious Business 211 (2010) (predicting that “[w]e can expect . . .

physical feedback and motion detection as standard in every gaming

device in the near future”); J. Blascovich & J. Bailenson, Infinite

Reality: Avatars, Eternal Life, New Worlds, and the Dawn of the

Virtual Revolution 2 (2011) (“Technological developments powering

virtual worlds are accelerating, ensuring that virtual experiences will

become more immersive by providing sensory information that makes

people feel they are ‘inside’ virtual worlds” (emphasis in the original)).

11 See Topolsky, The Mindwire V5 Turns Gaming into Pure Electro

shock Torture, Engadget (Mar. 9, 2008), http://www.engadget.com/

2008/03/09/the-mindwire-v5-turns-gaming-into-pure-electroshock-torture;

Greenemeier, Video Game Vest Simulates Sensation of Being Capped,

Scientific American (Oct. 25, 2007), http://www.scientificamerican.com/

article.cfm?id=video-game-vest-simulates.

14 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

tions that they desire a character in the game to per

form.12 For example, a player who wants a video-game

character to swing a baseball bat—either to hit a ball or

smash a skull—could bring that about by simulating the

motion of actually swinging a bat.

These present-day and emerging characteristics of video

games must be considered together with characteristics of

the violent games that have already been marketed.

In some of these games, the violence is astounding.13

Victims by the dozens are killed with every imaginable

implement, including machine guns, shotguns, clubs,

hammers, axes, swords, and chainsaws. Victims are

dismembered, decapitated, disemboweled, set on fire, and

chopped into little pieces. They cry out in agony and beg

for mercy. Blood gushes, splatters, and pools. Severed

body parts and gobs of human remains are graphically

shown. In some games, points are awarded based, not

only on the number of victims killed, but on the killing

technique employed.

It also appears that there is no antisocial theme too base

for some in the video-game industry to exploit. There are

games in which a player can take on the identity and

reenact the killings carried out by the perpetrators of the

murders at Columbine High School and Virginia Tech.14

——————

12 See Schiesel, A Real Threat Now Faces the Nintendo Wii, N. Y.

Times, Dec. 3, 2010, p. F7 (describing how leading developers of video

game consoles are competing to deliver gesture-controlled gaming

devices).

13 For a sample of violent video games, see Wilson, The 10 Most

Violent Video Games of All Time, PCMag.com (Feb. 10, 2011),

http://www.pcmag.com/article2/0,2817,2379959,00.asp. To see brief

video excerpts from violent games, see Chomik, Top 10: Most Violent

Video Games, AskMen.com, http://www.askmen.com/top_10/videogame/

top-10-most-violent-video-games.html; Sayed, 15 Most Violent Video

Games That Made You Puke, Gamingbolt (May 2, 2010), http://

gamingbolt.com/15-most-violent-video-games-that-made-you-puke.

14 Webley, “School Shooter” Video Game to Reenact Columbine, Vir

Cite as: 564 U. S. ____ (2011) 15

ALITO, J., concurring in judgment

The objective of one game is to rape a mother and her

daughters;15 in another, the goal is to rape Native Ameri

can women.16 There is a game in which players engage in

“ethnic cleansing” and can choose to gun down African-

Americans, Latinos, or Jews.17 In still another game,

players attempt to fire a rifle shot into the head of Presi

dent Kennedy as his motorcade passes by the Texas School

Book Depository.18

If the technological characteristics of the sophisticated

games that are likely to be available in the near future are

combined with the characteristics of the most violent

games already marketed, the result will be games that

allow troubled teens to experience in an extraordinarily

personal and vivid way what it would be like to carry out

unspeakable acts of violence.

The Court is untroubled by this possibility. According to

the Court, the “interactive” nature of video games is “noth

ing new” because “all literature is interactive.” Ante, at

10–11. Disagreeing with this assessment, the Interna

tional Game Developers Association (IGDA)—a group that

presumably understands the nature of video games and

that supports respondents—tells us that video games are

——————

ginia Tech Killings, Time (Apr. 20, 2011), http://newsfeed.time.com/

2011/04/20/school-shooter-video-game-reenacts-columbine-virginia-tech

killings. After a Web site that made School Shooter available for

download removed it in response to mounting criticism, the developer

stated that it may make the game available on its own Web site. Inside

the Sick Site of a School Shooter Mod (Mar. 26, 2011), http://ssnat.com.

15 Lah, “RapeLay” Video Game Goes Viral Amid Outrage, CNN

(Mar. 30, 2010), http://articles.cnn.com/2010-03-30/world/japan.video.

game.rape_1_game-teenage-girl-japanese-government?_s=PM:WORLD.

16 Graham, Custer May be Shot Down Again in a Battle of the Sexes

Over X-Rated Video Games, People, Nov. 15, 1982, pp. 110, 115.

17 Scheeres, Games Elevate Hate to Next Level, Wired (Feb. 20,

2002), http://www.wired.com/culture/lifestyle/news/2002/02/50523.

18 Thompson, A View to a Kill: JFK Reloaded is Just Plain Creepy,

Slate (Nov. 22, 2004), http://www.slate.com/id/2110034.

16 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

ALITO, J., concurring in judgment

“far more concretely interactive.” Brief for IGDA et al. as

Amici Curiae 3. And on this point, the game developers

are surely correct.

It is certainly true, as the Court notes, that “ ‘[l]it

erature, when it is successful draws the reader into the

story, makes him identify with the characters, invites

him to judge them and quarrel with them, to experience

their joys and sufferings as the reader’s own.’ ” Ante, at 11

(quoting American Amusement Machine Assn. v. Kendrick,

244 F. 3d 572, 577 (CA7 2001)). But only an extraordinar

ily imaginative reader who reads a description of a killing

in a literary work will experience that event as vividly as

he might if he played the role of the killer in a video game.

To take an example, think of a person who reads the

passage in Crime and Punishment in which Raskolni-

kov kills the old pawn broker with an axe. See F.

Dostoyevsky, Crime and Punishment 78 (Modern Library

ed. 1950). Compare that reader with a video-game player

who creates an avatar that bears his own image; who sees

a realistic image of the victim and the scene of the killing

in high definition and in three dimensions; who is forced to

decide whether or not to kill the victim and decides to do

so; who then pretends to grasp an axe, to raise it above the

head of the victim, and then to bring it down; who hears

the thud of the axe hitting her head and her cry of pain;

who sees her split skull and feels the sensation of blood on

his face and hands. For most people, the two experiences

will not be the same.19

When all of the characteristics of video games are taken

into account, there is certainly a reasonable basis for

——————

19 As the Court notes, there are a few children’s books that ask young

readers to step into the shoes of a character and to make choices that

take the stories along one of a very limited number of possible lines.

See ante, at 10. But the very nature of the print medium makes it

impossible for a book to offer anything like the same number of choices

as those provided by a video game.

Cite as: 564 U. S. ____ (2011) 17

ALITO, J., concurring in judgment

thinking that the experience of playing a video game may

be quite different from the experience of reading a book,

listening to a radio broadcast, or viewing a movie. And if

this is so, then for at least some minors, the effects of

playing violent video games may also be quite different.

The Court acts prematurely in dismissing this possibility

out of hand.

* * *

For all these reasons, I would hold only that the particu

lar law at issue here fails to provide the clear notice that

the Constitution requires. I would not squelch legislative

efforts to deal with what is perceived by some to be a

significant and developing social problem. If differently

framed statutes are enacted by the States or by the Fed

eral Government, we can consider the constitutionality of

those laws when cases challenging them are presented

to us.

Cite as: 564 U. S. ____ (2011) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1448

_________________

EDMUND G. BROWN, JR., GOVERNOR OF CAL-

IFORNIA, ET AL., PETITIONERS v. ENTERTAIN-

MENT MERCHANTS ASSOCIATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 27, 2011]

JUSTICE THOMAS, dissenting.

The Court’s decision today does not comport with the

original public understanding of the First Amendment.

The majority strikes down, as facially unconstitutional, a

state law that prohibits the direct sale or rental of certain

video games to minors because the law “abridg[es] the

freedom of speech.” U. S. Const., Amdt. 1. But I do not

think the First Amendment stretches that far. The prac

tices and beliefs of the founding generation establish that

“the freedom of speech,” as originally understood, does not

include a right to speak to minors (or a right of minors to

access speech) without going through the minors’ parents

or guardians. I would hold that the law at issue is not

facially unconstitutional under the First Amendment, and

reverse and remand for further proceedings.1

——————

1 JUSTICE ALITO concludes that the law is too vague to satisfy due

process, but neither the District Court nor the Court of Appeals ad

dressed that question. Ante, at 2–9 (opinion concurring in judgment).

As we have often said, this Court is “one of final review, ‘not of first

view.’ ” FCC v. Fox Television Stations, Inc., 556 U. S. ___, ___ (2009)

(slip op., at 25) (quoting Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7

(2005)).

2 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

I

When interpreting a constitutional provision, “the goal

is to discern the most likely public understanding of [that]

provision at the time it was adopted.” McDonald v. Chi

cago, 561 U. S. ___, ___ (2010) (slip op., at 25) (THOMAS, J.,

concurring in part and concurring in judgment). Because

the Constitution is a written instrument, “its meaning

does not alter.” McIntyre v. Ohio Elections Comm’n, 514

U. S. 334, 359 (1995) (THOMAS, J., concurring in judgment)

(internal quotation marks omitted). “That which it meant

when adopted, it means now.” Ibid. (internal quotation

marks omitted).

As originally understood, the First Amendment’s protec

tion against laws “abridging the freedom of speech” did

not extend to all speech. “There are certain well-defined

and narrowly limited classes of speech, the prevention and

punishment of which have never been thought to raise any

Constitutional problem.” Chaplinsky v. New Hampshire,

315 U. S. 568, 571–572 (1942); see also United States v.

Stevens, 559 U. S. ___, ___ (2010) (slip op., at 5–6). Laws

regulating such speech do not “abridg[e] the freedom of

speech” because such speech is understood to fall outside

“the freedom of speech.” See Ashcroft v. Free Speech Coa

lition, 535 U. S. 234, 245–246 (2002).

In my view, the “practices and beliefs held by the Foun

ders” reveal another category of excluded speech: speech to

minor children bypassing their parents. McIntyre, supra,

at 360. The historical evidence shows that the founding

generation believed parents had absolute authority over

their minor children and expected parents to use that

authority to direct the proper development of their chil

dren. It would be absurd to suggest that such a society

understood “the freedom of speech” to include a right to

speak to minors (or a corresponding right of minors to

access speech) without going through the minors’ parents.

Cf. Brief for Common Sense Media as Amicus Curiae 12–

Cite as: 564 U. S. ____ (2011) 3

THOMAS, J., dissenting

15. The founding generation would not have considered

it an abridgment of “the freedom of speech” to support

parental authority by restricting speech that bypasses

minors’ parents.

A

Attitudes toward children were in a state of transition

around the time that the States ratified the Bill of Rights.

A complete understanding of the founding generation’s

views on children and the parent-child relationship must

therefore begin roughly a century earlier, in colonial New

England.

In the Puritan tradition common in the New England

Colonies, fathers ruled families with absolute authority.

“The patriarchal family was the basic building block of

Puritan society.” S. Mintz, Huck’s Raft 13 (2004) (herein

after Mintz); see also R. MacDonald, Literature for Chil

dren in England and America from 1646 to 1774, p. 7

(1982) (hereinafter MacDonald). The Puritans rejected

many customs, such as godparenthood, that they consid

ered inconsistent with the patriarchal structure. Mintz

13.

Part of the father’s absolute power was the right and

duty “to fill his children’s minds with knowledge and . . .

make them apply their knowledge in right action.” E.

Morgan, The Puritan Family 97 (rev. ed. 1966) (herein

after Morgan). Puritans thought children were “innately

sinful and that parents’ primary task was to suppress

their children’s natural depravity.” S. Mintz & S. Kellogg,

Domestic Revolutions 2 (1988) (hereinafter Mintz & Kel

logg); see also B. Wadsworth, The Well-Ordered Family 55

(1712) (“Children should not be left to themselves . . . to do

as they please; . . . not being fit to govern themselves”); C.

Mather, A Family Well-Ordered 38 (1699). Accordingly,

parents were not to let their children read “vain Books,

profane Ballads, and filthy Songs” or “fond and amorous

4 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

Romances, . . . fabulous Histories of Giants, the bom-

bast Achievements of Knight Errantry, and the like.” The

History of Genesis, pp. vi–vii (3d ed. corrected 1708).

This conception of parental authority was reflected in

laws at that time. In the Massachusetts Colony, for

example, it was unlawful for tavern keepers (or anyone

else) to entertain children without their parents’ consent.

2 Records and Files of the Quarterly Courts of Essex

County, Massachusetts, p. 180 (1912); 4 id., at 237, 275

(1914); 5 id., at 143 (1916); see also Morgan 146. And a

“stubborn or rebellious son” of 16 years or more committed

a capital offense if he disobeyed “the voice of his Father, or

the voice of his Mother.” The Laws and Liberties of Mas

sachusetts 6 (1648) (reprint M. Farrand ed. 1929); see also

J. Kamensky, Governing the Tongue 102, n. 14 (1997)

(citing similar laws in the Connecticut, New Haven, Ply

mouth, and New Hampshire Colonies in the late 1600’s).

B

In the decades leading up to and following the Revolu

tion, attitudes towards children changed. See, e.g., J.

Reinier, From Virtue to Character: American Childhood,

1775–1850, p. 1 (1996) (hereinafter Reinier). Children

came to be seen less as innately sinful and more as blank

slates requiring careful and deliberate development. But

the same overarching principles remained. Parents con

tinued to have both the right and duty to ensure the

proper development of their children. They exercised

significant authority over their children, including control

over the books that children read. And laws at the time

continued to reflect strong support for parental author-

ity and the sense that children were not fit to govern

themselves.

1

The works of John Locke and Jean-Jacques Rousseau

Cite as: 564 U. S. ____ (2011) 5

THOMAS, J., dissenting

were a driving force behind the changed understanding of

children and childhood. See Reinier 2–5; H. Brewer, By

Birth or Consent 97 (2005) (hereinafter Brewer); K. Cal

vert, Children in the House 59–60 (1992) (hereinafter

Calvert). Locke taught that children’s minds were blank

slates and that parents therefore had to be careful and

deliberate about what their children were told and ob

served. Parents had only themselves to blame if, “by hu

mouring and cockering” their children, they “poison’d

the fountain” and later “taste[d] the bitter waters.” Some

Thoughts Concerning Education (1692), in 37 English

Philosophers of the Seventeenth and Eighteenth Centuries

27–28 (C. Eliot ed. 1910). All vices, he explained, were

sowed by parents and “those about children.” Id., at 29.

Significantly, Locke did not suggest circumscribing paren

tal authority but rather articulated a new basis for it.

Rousseau disagreed with Locke in important respects, but

his philosophy was similarly premised on parental control

over a child’s development. Although Rousseau advocated

that children should be allowed to develop naturally, he

instructed that the environment be directed by “a tutor

who is given total control over the child and who removes

him from society, from all competing sources of authority

and influence.” J. Fliegelman, Prodigals and Pilgrims 30

(1982) (hereinafter Fliegelman); see also Reinier 15.

These writings received considerable attention in Amer

ica. Locke’s An Essay Concerning Human Understanding

and his Some Thoughts Concerning Education were sig

nificantly more popular than his Two Treatises of Gov

ernment, according to a study of 92 colonial libraries

between 1700 and 1776. Lundberg & May, The Enlight

ened Reader in America, 28 American Quarterly 262, 273

(1976) (hereinafter Lundberg). And Rousseau’s Emile, a

treatise on education, was more widely advertised and

distributed than his political work, The Social Contract.

Fliegelman 29; see also Lundberg 285. In general, the

6 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

most popular books in the Colonies on the eve of the

American Revolution were not political discourses but

ones concerned with child rearing. See Mintz & Kellogg

45.

2

Locke’s and Rousseau’s writings fostered a new concep

tion of childhood. Children were increasingly viewed as

malleable creatures, and childhood came to be seen as an

important period of growth, development, and preparation

for adulthood. See Mintz & Kellogg 17, 21, 47; M. Gross

berg, Governing the Hearth 8 (1985) (hereinafter Gross

berg). Noah Webster, called the father of American educa

tion, wrote that “[t]he impressions received in early life

usually form the characters of individuals.” On the Edu

cation of Youth in America (1790) (hereinafter Webster),

in Essays on Education in the Early Republic 43 (F. Ru

dolph ed. 1965) (hereinafter Rudolph); cf. Slater, Noah

Webster: Founding Father of American Scholarship and

Education, in Noah Webster’s First Edition of an Ameri

can Dictionary of the English Language (1967). Elizabeth

Smith, sister-in-law to John Adams, similarly wrote: “The

Infant Mind, I beleive[,] is a blank, that eassily receives

any impression.” M. Norton, Liberty’s Daughters 101

(1996) (internal quotation marks omitted) (hereinafter

Norton); see also S. Doggett, A Discourse on Education

(1796) (hereinafter Doggett), in Rudolph 151 (“[I]n early

youth, . . . every power and capacity is pliable and suscep

tible of any direction or impression”); J. Abbott, The

Mother at Home 2 (1834) (hereinafter Abbott) (“What

impressions can be more strong, and more lasting, than

those received upon the mind in the freshness and the

susceptibility of youth”).

Children lacked reason and decisionmaking ability.

They “have not Judgment or Will of their own,” John

Adams noted. Letter to James Sullivan (May 26, 1776), in

Cite as: 564 U. S. ____ (2011) 7

THOMAS, J., dissenting

4 Papers of John Adams 210 (R. Taylor ed. 1979); see also

Vol. 1 1787: Drafting the Constitution, p. 229 (W. Benton

ed. 1986) (quoting Gouvernor Morris in James Madison’s

notes from the Constitutional Convention explaining that

children do not vote because they “want prudence” and

“have no will of their own”). Children’s “utter incapacity”

rendered them “almost wholly at the mercy of their Par

ents or Instructors for a set of habits to regulate their

whole conduct through life.” J. Burgh, Thoughts on Edu

cation 7 (1749) (hereinafter Burgh).

This conception of childhood led to great concern about

influences on children. “Youth are ever learning to do

what they see others around them doing, and these imita

tions grow into habits.” Doggett, in Rudolph 151; see also

B. Rush, A Plan for the Establishment of Public Schools

(1786) (hereinafter Rush), in Rudolph 16 (“The vices of

young people are generally learned from each other”);

Webster, in Rudolph 58 (“[C]hildren, artless and unsus

pecting, resign their hearts to any person whose manners

are agreeable and whose conduct is respectable”). Books

therefore advised parents “not to put children in the way

of those whom you dare not trust.” L. Child, The Mother’s

Book 149 (1831) (hereinafter Child); see also S. Coontz,

The Social Origins of Private Life 149–150 (1988) (noting

that it was “considered dangerous to leave children to the

supervision of servants or apprentices”).

As a result, it was widely accepted that children needed

close monitoring and carefully planned development. See

B. Wishy, The Child and the Republic 24–25, 32 (1968)

(hereinafter Wishy); Grossberg 8. Managing the young

mind was considered “infinitely important.” Doggett, in

Rudolph 151; see also A. MacLeod, A Moral Tale 72–73

(1975) (hereinafter MacLeod). In an essay on the educa

tion of youth in America, Noah Webster described the

human mind as “a rich field, which, without constant care,

will ever be covered with a luxuriant growth of weeds.”

8 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

Rudolph 54. He advocated sheltering children from “every

low-bred, drunken, immoral character” and keeping their

minds “untainted till their reasoning faculties have ac

quired strength and the good principles which may be

planted in their minds have taken deep root.” Id., at 63;

see also Rush, in id., at 16 (“[T]he most useful citizens

have been formed from those youth who have never known

or felt their own wills till they were one and twenty years

of age”); Burgh 7 (“[T]he souls of Youth are more immedi

ately committed to the care of Parents and Instructors

than even those of a People are to their Pastor”).

The Revolution only amplified these concerns. The Re

public would require virtuous citizens, which necessi-

tated proper training from childhood. See Mintz 54, 71;

MacLeod 40; Saxton, French and American Childhoods, in

Children and Youth in a New Nation 69 (J. Marten ed.

2009) (hereinafter Marten); see also W. Cardell, Story of

Jack Halyard, pp. xv–xvi (30th ed. 1834) (hereinafter

Cardell) (“[T]he glory and efficacy of our institutions will

soon rest with those who are growing up to succede us”).

Children were “the pivot of the moral world,” and their

proper development was “a subject of as high interest, as

any to which the human mind ha[d] ever been called.” Id.,

at xvi.

3

Based on these views of childhood, the founding genera

tion understood parents to have a right and duty to govern

their children’s growth. Parents were expected to direct

the development and education of their children and en

sure that bad habits did not take root. See Calvert 58–59;

MacLeod 72; Mintz & Kellogg 23. They were responsible

for instilling “moral prohibitions, behavioral standards,

and a capacity for self-government that would prepare

a child for the outside world.” Mintz & Kellogg 58; see

also Youth’s Companion, Apr. 16, 1827, p. 1 (hereinafter

Cite as: 564 U. S. ____ (2011) 9

THOMAS, J., dissenting

Youth’s Companion) (“Let [children’s] minds be formed,

their hearts prepared, and their characters moulded for

the scenes and the duties of a brighter day”). In short,

“[h]ome and family bore the major responsibility for the

moral training of children and thus, by implication, for the

moral health of the nation.” MacLeod 29; see also Intro

duction, in Marten 6; Reinier, p. xi; Smith, Autonomy and

Affection: Parents and Children in Eighteenth-Century

Chesapeake Families, in Growing up in America 54

(N. Hiner & J. Hawes eds. 1985).

This conception of parental rights and duties was exem

plified by Thomas Jefferson’s approach to raising children.

He wrote letters to his daughters constantly and often

gave specific instructions about what the children should

do. See, e.g., Letter to Martha Jefferson (Nov. 28, 1783),

in S. Randolph, The Domestic Life of Thomas Jefferson 44

(1939) (dictating her daily schedule of music, dancing,

drawing, and studying); Letter to Martha Jefferson (Dec.

22, 1783), in id., at 45–46 (“I do not wish you to be gaily

clothed at this time of life . . . . [A]bove all things and at

all times let your clothes be neat, whole, and properly put

on”). Jefferson expected his daughter, Martha, to write

“by every post” and instructed her, “Inform me what books

you read [and] what tunes you learn.” Letter (Nov. 28,

1783), in id., at 44. He took the same approach with his

nephew, Peter Carr, after Carr’s father died. See Letter

(Aug. 19, 1785), in 8 The Papers of Thomas Jefferson 405–

408 (J. Boyd ed. 1953) (detailing a course of reading and

exercise, and asking for monthly progress reports describ

ing “in what manner you employ every hour in the day”);

see also 3 Dictionary of Virginia Biography 29 (2006).

Jefferson’s rigorous management of his charges was not

uncommon. “[M]uch evidence indicates that mothers and

fathers both believed in giving their children a strict up

bringing, enforcing obedience to their commands and

stressing continued subjection to the parental will.” Nor

10 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

ton 96. Two parenting books published in the 1830’s gave

prototypical advice. In The Mother’s Book, Lydia Child

advised that “[t]he first and most important step in man

agement is, that whatever a mother says, always must be

done.” Child 26. John Abbott, the author of The Mother

at Home, likewise advised that “[o]bedience is absolutely

essential to proper family government.” Abbott 18. Echo

ing Locke, Abbott warned that parents who indulged a

child’s “foolish and unreasonable wishes” would doom that

child to be indulgent in adulthood. Id., at 16.

The concept of total parental control over children’s lives

extended into the schools. “The government both of fami

lies and schools should be absolute,” declared Noah Web

ster. Rudolph 57–58. Dr. Benjamin Rush concurred: “In

the education of youth, let the authority of our masters be

as absolute as possible.” Id., at 16. Through the doctrine

of in loco parentis, teachers assumed the “ ‘sacred dut[y] of

parents . . . to train up and qualify their children’ ” and

exercised the same authority “ ‘to command obedience, to

control stubbornness, to quicken diligence, and to reform

bad habits.’ ” Morse v. Frederick, 551 U. S. 393, 413–414

(2007) (THOMAS, J., concurring) (quoting State v. Pender

grass, 19 N. C. 365, 365–366 (1837)); see also Wishy 73.

Thus, the quality of teachers and schools had to “be

watched with the most scrupulous attention.” Webster, in

Rudolph 64.

For their part, children were expected to be dutiful and

obedient. Mintz & Kellogg 53; Wishy 31; cf. J. Kett, Rites

of Passage 45 (1977). Schoolbooks instructed children to

do so and frequently featured vignettes illustrating the

consequences of disobedience. See Adams, “Pictures of the

Vicious ultimately overcome by misery and shame”: The

Cultural Work of Early National Schoolbooks (hereinafter

Adams), in Marten 156. One oft-related example was the

hangings of 19 alleged witches in 1692, which, the school

books noted, likely began with false complaints by two

Cite as: 564 U. S. ____ (2011) 11

THOMAS, J., dissenting

young girls. See J. Morse, The American Geography 191

(1789); see also Adams, in Marten 164.

An entire genre of books, “loosely termed ‘advice to

youth,’ ” taught similar lessons well into the 1800’s. J.

Demos, Circles and Lines: The Shape of Life in Early

America 73 (2004); cf. Wishy 54. “Next to your duty to

God,” advised one book, “is your duty to your parents”

even if the child did not “understand the reason of their

commands.” L. Sigourney, The Girl’s Reading Book 44

(14th ed. 1843); see also Filial Duty Recommended and

Enforced, Introduction, p. iii (c. 1798); The Parent’s Pre

sent 44 (3d ed. 1841). “Disobedience is generally punished

in some way or other,” warned another, “and often very

severely.” S. Goodrich, Peter Parley’s Book of Fables 43

(1836); see also The Country School-House 27 (1848)

(“[T]he number of children who die from the effects of

disobedience to their parents is very large”).

4

Society’s concern with children’s development extended

to the books they read. “Vice always spreads by being

published,” Noah Webster observed. Rudolph 62. “[Y]oung

people are taught many vices by fiction, books, or pub-

lic exhibitions, vices which they never would have known

had they never read such books or attended such pub-

lic places.” Ibid.; see also Cardell, p. xii (cautioning par

ents that “[t]he first reading lessons for children have

an extensive influence on the acquisitions and habits of

future years”); Youth’s Companion 1 (“[T]he capacities of

children, and the peculiar situation and duties of youth,

require select and appropriate reading”). Prominent

children’s authors harshly criticized fairy tales and the

use of anthropomorphic animals. See, e.g., S. Goodrich, 2

Recollections of a Lifetime 320, n.* (1856) (describing fairy

tales as “calculated to familiarize the mind with things

shocking and monstrous; to cultivate a taste for tales of

12 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

bloodshed and violence; to teach the young to use coarse

language, and cherish vulgar ideas; . . . and to fill [the

youthful mind] with the horrors of a debased and de

bauched fancy”); 1 id., at 167 (recalling that children’s

books were “full of nonsense” and “lies”); Cardell, p. xiv

(“The fancy of converting inferior animals into ‘teachers of

children,’ has been carried to ridiculous extravagance”);

see also MacDonald 83, 103 (noting that fables and works

of fantasy were not popular in America in the 1700’s).

Adults carefully controlled what they published for

children. Stories written for children were dedicated to

moral instruction and were relatively austere, lacking

details that might titillate children’s minds. See MacLeod

24–25, 42–48; see also id., at 42 (“The authors of juvenile

fiction imposed the constraints upon themselves in the

name of duty, and for the sake of giving children what

they thought children should have, although they were

often well aware that children might prefer more excit

ing fare”); Francis, American Children’s Literature,

1646–1880, in American Childhood 208–209 (J. Hawes &

N. Hiner eds. 1985). John Newbery, the publisher often

credited with creating the genre of children’s literature,

removed traditional folk characters, like Tom Thumb,

from their original stories and placed them in new moral

ity tales in which good children were rewarded and dis

obedient children punished. Reinier 12.

Parents had total authority over what their children

read. See A. MacLeod, American Childhood 177 (1994)

(“Ideally, if not always actually, nineteenth-century par

ents regulated their children’s lives fully, certainly includ

ing their reading”). Lydia Child put it bluntly in The

Mother’s Book: “Children . . . should not read anything

without a mother’s knowledge and sanction; this is par

ticularly necessary between the ages of twelve and six

teen.” Child 92; see also id., at 143 (“[P]arents, or some

guardian friends, should carefully examine every volume

Cite as: 564 U. S. ____ (2011) 13

THOMAS, J., dissenting

they put into the hands of young people”); E. Monaghan,

Learning to Read and Write in Colonial America 337

(2005) (reviewing a 12-year-old girl’s journal from the

early 1770’s and noting that the child’s aunts monitored

and guided her reading).

5

The law at the time reflected the founding generation’s

understanding of parent-child relations. According to Sir

William Blackstone, parents were responsible for main

taining, protecting, and education their children, and

therefore had “power” over their children. 1 Commentar

ies on the Laws of England 434, 440 (1765); cf. Washington

v. Glucksberg, 521 U. S. 702, 712 (1997) (Blackstone’s

Commentaries was “a primary legal authority for 18th-

and 19th-century American lawyers”). Chancellor James

Kent agreed. 2 Commentaries on American Law *189–

*207. The law entitled parents to “the custody of their

[children],” “the value of th[e] [children’s] labor and ser

vices,” and the “right to the exercise of such discipline as

may be requisite for the discharge of their sacred trust.”

Id., at *193, *203. Children, in turn, were charged with

“obedience and assistance during their own minority, and

gratitude and reverance during the rest of their lives.” Id.,

at *207.

Thus, in case after case, courts made clear that parents

had a right to the child’s labor and services until the child

reached majority. In 1810, the Supreme Judicial Court of

Massachusetts explained, “There is no question but that a

father, who is entitled to the services of his minor son, and

for whom he is obliged to provide, may, at the common

law, assign those services to others, for a consideration to

enure to himself.” Day v. Everett, 7 Mass. 145, 147; see

also Benson v. Remington, 2 Mass. 113, 115 (1806) (opin

ion of Parsons, C. J.) (“The law is very well settled, that

parents are under obligations to support their children,

14 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

and that they are entitled to their earnings”). Similarly,

the Supreme Court of Judicature of New Hampshire noted

that the right of parents to recover for the services of their

child, while a minor, “cannot be contested.” Gale v. Parrot,

1 N. H. 28, 29 (1817). And parents could bring tort suits

against those who knowingly enticed a minor away from

them. See, e.g., Kirkpatrick v. Lockhart, 2 Brev. 276 (S. C.

Constitutional Ct. 1809); Jones v. Tevis, 4 Litt. 25 (Ky.

App. 1823).

Relatedly, boys could not enlist in the military without

parental consent. Many of those who did so during the

Revolutionary War found, afterwards, that their fathers

were entitled to their military wages. See Cox, Boy Sol

diers of the American Revolution, in Marten 21–24. And

after the war, minors who enlisted without parental con

sent in violation of federal law could find themselves

returned home on writs of habeas corpus issued at their

parents’ request. See, e.g., United States v. Anderson, 24

F. Cas. 813 (No. 14,449) (CC Tenn. 1812); Commonwealth

v. Callan, 6 Binn. 255 (Pa. 1814) (per curiam).

Laws also set age limits restricting marriage without

parental consent. For example, from 1730 until at least

1849, Pennsylvania law required parental consent for the

marriage of anyone under the age of 21. See 4 Statutes at

Large of Pennsylvania 153 (J. Mitchell & H. Flanders eds.

1897) (hereinafter Pa. Stats. at Large); General Laws of

Pennsylvania 82–83 (J. Dunlop 2d ed. 1849) (including the

1730 marriage law with no amendments); see also Perpet

ual Laws of the Commonwealth of Massachusetts 253

(1788), in The First Laws of the Commonwealth of Massa

chusetts (J. Cushing ed. 1981). In general, “[p]ost-

Revolutionary marriage law assumed that below a certain

age, children could . . . no[t] intellectually understand its

significance.” Grossberg 105.

Indeed, the law imposed age limits on all manner of

activities that required judgment and reason. Children

Cite as: 564 U. S. ____ (2011) 15

THOMAS, J., dissenting

could not vote, could not serve on juries, and generally

could not be witnesses in criminal cases unless they were

older than 14. See Brewer 43, 145, 148, 159. Nor could

they swear loyalty to a State. See, e.g., 9 Pa. Stats. at

Large 111 (1903 ed.). Early federal laws granting aliens

the ability to become citizens provided that those under 21

were deemed citizens if their fathers chose to naturalize.

See, e.g., Act of Mar. 26, 1790, 1 Stat. 104; Act of Jan. 29,

1795, ch. 20, 1 Stat. 415.

C

The history clearly shows a founding generation that

believed parents to have complete authority over their

minor children and expected parents to direct the devel

opment of those children. The Puritan tradition in New

England laid the foundation of American parental author

ity and duty. See MacDonald 6 (“The Puritans are virtu

ally the inventors of the family as we know it today”). In

the decades leading up to and following the Revolution,

the conception of the child’s mind evolved but the duty and

authority of parents remained. Indeed, society paid closer

attention to potential influences on children than before.

See Mintz 72 (“By weakening earlier forms of patriarchal

authority, the Revolution enhanced the importance of

childrearing and education in ensuring social stability”).

Teachers and schools came under scrutiny, and children’s

reading material was carefully supervised. Laws reflected

these concerns and often supported parental authority

with the coercive power of the state.

II

A

In light of this history, the Framers could not possibly

have understood “the freedom of speech” to include an

unqualified right to speak to minors. Specifically, I am

sure that the founding generation would not have under

16 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

stood “the freedom of speech” to include a right to speak to

children without going through their parents. As a conse

quence, I do not believe that laws limiting such speech—

for example, by requiring parental consent to speak to a

minor—“abridg[e] the freedom of speech” within the origi

nal meaning of the First Amendment.

We have recently noted that this Court does not have

“freewheeling authority to declare new categories of

speech outside the scope of the First Amendment.” Ste

vens, 559 U. S., at ___ (slip op., at 9). But we also recog

nized that there may be “some categories of speech that

have been historically unprotected [and] have not yet been

specifically identified or discussed as such in our case

law.” Ibid. In my opinion, the historical evidence here

plainly reveals one such category.2

B

Admittedly, the original public understanding of a

constitutional provision does not always comport with

modern sensibilities. See Morse, 551 U. S., at 419

(THOMAS, J., concurring) (treating students “as though it

——————

2 The majority responds that “it does not follow” from the historical

evidence “that the state has the power to prevent children from hearing

. . . anything without their parents’ prior consent.” Ante, at 7, n. 3.

Such a conclusion, the majority asserts, would lead to laws that, in its

view, would be undesirable and “obviously” unconstitutional. Ibid.

The majority’s circular argument misses the point. The question is

not whether certain laws might make sense to judges or legislators

today, but rather what the public likely understood “the freedom of

speech” to mean when the First Amendment was adopted. See District

of Columbia v. Heller, 554 U. S. 570, 634–635 (2008). I believe it is

clear that the founding public would not have understood “the freedom

of speech” to include speech to minor children bypassing their parents.

It follows that the First Amendment imposes no restriction on state

regulation of such speech. To note that there may not be “precedent for

[such] state control,” ante, at 8, n. 3, “is not to establish that [there] is a

constitutional right,” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334,

373 (1995) (SCALIA, J., dissenting).

Cite as: 564 U. S. ____ (2011) 17

THOMAS, J., dissenting

were still the 19th century would find little support to

day”). It may also be inconsistent with precedent. See

McDonald, 561 U. S., at ___–___ (THOMAS, J., concurring

in part and concurring in judgment) (slip op., at 48–

52) (rejecting the Slaughter-House Cases, 16 Wall. 36

(1873), as inconsistent with the original public meaning

of the Privileges or Immunities Clause of the Fourteenth

Amendment).

This, however, is not such a case. Although much has

changed in this country since the Revolution, the notion

that parents have authority over their children and that

the law can support that authority persists today. For

example, at least some States make it a crime to lure or

entice a minor away from the minor’s parent. See, e.g.,

Cal. Penal Code Ann. §272(b)(1) (West 2008); Fla. Stat.

§787.03 (2010). Every State in the Union still establishes

a minimum age for marriage without parental or judicial

consent. Cf. Roper v. Simmons, 543 U. S. 551, 558 (Ap

pendix D to opinion of Court) (2005). Individuals less than

18 years old cannot enlist in the military without parental

consent. 10 U. S. C. §505(a). And minors remain subject

to curfew laws across the country, see Brief for Louisiana

et al. as Amici Curiae 16, and cannot unilaterally consent

to most medical procedures, id., at 15.

Moreover, there are many things minors today cannot

do at all, whether they have parental consent or not.

State laws set minimum ages for voting and jury duty.

See Roper, supra, at 581–585 (Appendixes B and C to

opinion of Court). In California (the State at issue here),

minors cannot drive for hire or drive a school bus, Cal.

Veh. Code Ann. §§12515, 12516 (West 2010), purchase

tobacco, Cal. Penal Code Ann. §308(b) (West 2008), play

bingo for money, §326.5(e), or execute a will, Cal. Probate

Code Ann. §6220 (West 2009).

My understanding of “the freedom of speech” is also

consistent with this Court’s precedents. To be sure, the

18 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

Court has held that children are entitled to the protection

of the First Amendment, see, e.g., Erznoznik v. Jackson

ville, 422 U. S. 205, 212–213 (1975), and the government

may not unilaterally dictate what children can say or

hear, see id., at 213–214; Tinker v. Des Moines Independ

ent Community School Dist., 393 U. S. 503, 511 (1969).

But this Court has never held, until today, that “the free

dom of speech” includes a right to speak to minors (or a

right of minors to access speech) without going through

the minors’ parents. To the contrary, “[i]t is well settled

that a State or municipality can adopt more stringent

controls on communicative materials available to youths

than on those available to adults.” Erznoznik, supra, at

212; cf. post, at 3 (BREYER, J., dissenting).

The Court’s constitutional jurisprudence “historically

has reflected Western civilization concepts of the family as

a unit with broad parental authority over minor children.”

Parham v. J. R., 442 U. S. 584, 602 (1979). Under that

case law, “legislature[s] [can] properly conclude that par

ents and others, teachers for example, who have . . . pri

mary responsibility for children’s well-being are entitled to

the support of laws designed to aid discharge of that re

sponsibility.” Ginsberg v. New York, 390 U. S. 629, 639

(1968); see also Bellotti v. Baird, 443 U. S. 622, 635 (1979)

(opinion of Powell, J.) (“[T]he State is entitled to adjust its

legal system to account for children’s vulnerability and

their needs for concern, . . . sympathy, and . . . paternal

attention” (internal quotation marks omitted)). This is

because “the tradition of parental authority is not incon

sistent with our tradition of individual liberty; rather, the

former is one of the basic presuppositions of the latter.”

Id., at 638; id., at 638–639 (“Legal restrictions on minors,

especially those supportive of the parental role, may be

important to the child’s chances for the full growth and

maturity that make eventual participation in a free soci

ety meaningful and rewarding”).

Cite as: 564 U. S. ____ (2011) 19

THOMAS, J., dissenting

III

The California law at issue here prohibits the sale or

rental of “violent video game[s]” to minors, defined as

anyone “under 18 years of age.” Cal. Civ. Code Ann.

§§1746.1(a), 1746 (West 2009). A violation of the law is

punishable by a civil fine of up to $1,000. §1746.3. Criti

cally, the law does not prohibit adults from buying or

renting violent video games for a minor or prohibit minors

from playing such games. Cf. ante, at 10 (ALITO, J., con

curring in judgment); post, at 10 (BREYER, J., dissenting).

The law also does not restrict a “minor’s parent, grandpar

ent, aunt, uncle, or legal guardian” from selling or renting

him a violent video game. §1746.1(c).

Respondents, associations of companies in the video

game industry, brought a preenforcement challenge to

California’s law, claiming that on its face the law violates

the free speech rights of their members. The Court holds

that video games are speech for purposes of the First

Amendment and finds the statute facially unconstitu

tional. See ante, at 2–3, 11–17. I disagree.

Under any of this Court’s standards for a facial First

Amendment challenge, this one must fail. The video game

associations cannot show “that no set of circumstances

exists under which [the law] would be valid,” “that

the statute lacks any plainly legitimate sweep,” or that

“a substantial number of its applications are unconstitu

tional, judged in relation to the statute’s plainly legitimate

sweep.” Stevens, 559 U. S., at ___ (slip op., at 10) (internal

quotation marks omitted). Even assuming that video

games are speech, in most applications the California law

does not implicate the First Amendment. All that the law

does is prohibit the direct sale or rental of a violent video

game to a minor by someone other than the minor’s par

ent, grandparent, aunt, uncle, or legal guardian. Where a

minor has a parent or guardian, as is usually true, the law

does not prevent that minor from obtaining a violent video

20 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

THOMAS, J., dissenting

game with his parent’s or guardian’s help. In the typical

case, the only speech affected is speech that bypasses a

minor’s parent or guardian. Because such speech does not

fall within “the freedom of speech” as originally under

stood, California’s law does not ordinarily implicate the

First Amendment and is not facially unconstitutional.3

* * *

“The freedom of speech,” as originally understood, does

not include a right to speak to minors without going

through the minors’ parents or guardians. Therefore, I

cannot agree that the statute at issue is facially unconsti

tutional under the First Amendment.

I respectfully dissent.

——————

3 Whether the statute would survive an as-applied challenge in the

unusual case of an emancipated minor is a question for another day.

To decide this case, it is enough that the statute is not unconstitutional

on its face.

Cite as: 564 U. S. ____ (2011) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 08–1448

_________________

EDMUND G. BROWN, JR., GOVERNOR OF CAL-

IFORNIA, ET AL., PETITIONERS v. ENTERTAIN-

MENT MERCHANTS ASSOCIATION ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

[June 27, 2011]

JUSTICE BREYER, dissenting.

California imposes a civil fine of up to $1,000 upon any

person who distributes a violent video game in California

without labeling it “18,” or who sells or rents a labeled

violent video game to a person under the age of 18. Rep-

resentatives of the video game and software industries,

claiming that the statute violates the First Amendment on

its face, seek an injunction against its enforcement. Ap­

plying traditional First Amendment analysis, I would

uphold the statute as constitutional on its face and would

consequently reject the industries’ facial challenge.

I

A

California’s statute defines a violent video game as: A

game in which a player “kill[s], maim[s], dismember[s], or

sexually assault[s] an image of a human being,”

and

“[a] reasonable person, considering the game as a

whole, would find [the game] appeals to a deviant or

morbid interest of minors,”

and

“[the game] is patently offensive to prevailing standards

in the community as to what is suitable for minors,”

2 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

and

“the game, as a whole, . . . lack[s] serious literary, ar­

tistic, political, or scientific value for minors.” Cal.

Civ. Code Ann. §1746(d)(1) (West 2009).

The statute in effect forbids the sale of such a game to

minors unless they are accompanied by a parent; it re­

quires the makers of the game to affix a label identifying

it as a game suitable only for those aged 18 and over; it

exempts retailers from liability unless such a label is

properly affixed to the game; and it imposes a civil fine of

up to $1,000 upon a violator. See §§1746.1–1746.3.

B

A facial challenge to this statute based on the First

Amendment can succeed only if “a substantial number of

its applications are unconstitutional, judged in relation to

the statute’s plainly legitimate sweep.” United States v.

Stevens, 559 U. S. __, __ (2010) (slip op., at 10) (internal

quotation marks omitted). Moreover, it is more difficult to

mount a facial First Amendment attack on a statute that

seeks to regulate activity that involves action as well as

speech. See Broadrick v. Oklahoma, 413 U. S. 601, 614–

615 (1973). Hence, I shall focus here upon an area within

which I believe the State can legitimately apply its stat­

ute, namely sales to minors under the age of 17 (the age

cutoff used by the industry’s own ratings system), of

highly realistic violent video games, which a reasonable

game maker would know meet the Act’s criteria. That

area lies at the heart of the statute. I shall assume that

the number of instances in which the State will enforce

the statute within that area is comparatively large, and

that the number outside that area (for example, sales to

17-year-olds) is comparatively small. And the activity the

statute regulates combines speech with action (a virtual

form of target practice).

Cite as: 564 U. S. ____ (2011) 3

BREYER, J., dissenting

C

In determining whether the statute is unconstitutional,

I would apply both this Court’s “vagueness” precedents and

a strict form of First Amendment scrutiny. In doing so,

the special First Amendment category I find relevant is

not (as the Court claims) the category of “depictions of

violence,” ante, at 8, but rather the category of “protection

of children.” This Court has held that the “power of the

state to control the conduct of children reaches beyond the

scope of its authority over adults.” Prince v. Massachu

setts, 321 U. S. 158, 170 (1944). And the “ ‘regulatio[n] of

communication addressed to [children] need not conform

to the requirements of the [F]irst [A]mendment in the

same way as those applicable to adults.’ ” Ginsberg v. New

York, 390 U. S. 629, 638, n. 6 (1968) (quoting Emerson,

Toward a General Theory of the First Amendment, 72

Yale L. J. 877, 939 (1963)).

The majority’s claim that the California statute, if up­

held, would create a “new categor[y] of unprotected

speech,” ante, at 3, 6, is overstated. No one here argues

that depictions of violence, even extreme violence, auto

matically fall outside the First Amendment’s protective

scope as, for example, do obscenity and depictions of child

pornography. We properly speak of categories of expres­

sion that lack protection when, like “child pornography,”

the category is broad, when it applies automatically, and

when the State can prohibit everyone, including adults,

from obtaining access to the material within it. But

where, as here, careful analysis must precede a narrower

judicial conclusion (say, denying protection to a shout of

“fire” in a crowded theater, or to an effort to teach a terror­

ist group how to peacefully petition the United Nations),

we do not normally describe the result as creating a “new

category of unprotected speech.” See Schenck v. United

States, 249 U. S. 47, 52 (1919); Holder v. Humanitarian

Law Project, 561 U. S. __ (2010).

4 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

Thus, in Stevens, after rejecting the claim that all de­

pictions of animal cruelty (a category) fall outside the

First Amendment’s protective scope, we went on to decide

whether the particular statute at issue violates the First

Amendment under traditional standards; and we held

that, because the statute was overly broad, it was invalid.

Similarly, here the issue is whether, applying traditional

First Amendment standards, this statute does, or does

not, pass muster.

II

In my view, California’s statute provides “fair notice of

what is prohibited,” and consequently it is not impermis­

sibly vague. United States v. Williams, 553 U. S. 285, 304

(2008). Ginsberg explains why that is so. The Court there

considered a New York law that forbade the sale to minors

of a

“picture, photograph, drawing, sculpture, motion pic­

ture film, or similar visual representation or image of

a person or portion of the human body which depicts

nudity . . . ,”

that

“predominately appeals to the prurient, shameful or

morbid interest of minors,”

and

“is patently offensive to prevailing standards in the

adult community as a whole with respect to what is

suitable material for minors,”

and

“is utterly without redeeming social importance for

minors.” 390 U. S., at 646–647.

This Court upheld the New York statute in Ginsberg

(which is sometimes unfortunately confused with a very

Cite as: 564 U. S. ____ (2011) 5

BREYER, J., dissenting

different, earlier case, Ginzburg v. United States, 383 U. S.

463 (1966)). The five-Justice majority, in an opinion writ­

ten by Justice Brennan, wrote that the statute was suf-

ficiently clear. 390 U. S., at 643–645. No Member of the

Court voiced any vagueness objection. See id., at 648–650

(Stewart, J., concurring in result); id., at 650–671 (Doug­

las, J., joined by Black, J., dissenting); id., at 671–675

(Fortas, J., dissenting).

Comparing the language of California’s statute (set

forth supra, at 1–2) with the language of New York’s

statute (set forth immediately above), it is difficult to find

any vagueness-related difference. Why are the words

“kill,” “maim,” and “dismember” any more difficult to

understand than the word “nudity?” JUSTICE ALITO ob­

jects that these words do “not perform the narrowing

function” that this Court has required in adult obscenity

cases, where statutes can only cover “ ‘hard core’ ” depic­

tions. Ante, at 6 (opinion concurring in judgment). But

the relevant comparison is not to adult obscenity cases but

to Ginsberg, which dealt with “nudity,” a category no more

“narrow” than killing and maiming. And in any event,

narrowness and vagueness do not necessarily have any­

thing to do with one another. All that is required for

vagueness purposes is that the terms “kill,” “maim,” and

“dismember” give fair notice as to what they cover, which

they do.

The remainder of California’s definition copies, almost

word for word, the language this Court used in Miller v.

California, 413 U. S. 15 (1973), in permitting a total ban

on material that satisfied its definition (one enforced with

criminal penalties). The California law’s reliance on

“community standards” adheres to Miller, and in Fort

Wayne Books, Inc. v. Indiana, 489 U. S. 46, 57–58 (1989),

this Court specifically upheld the use of Miller’s language

against charges of vagueness. California only departed

from the Miller formulation in two significant respects: It

6 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

substituted the word “deviant” for the words “prurient”

and “shameful,” and it three times added the words “for

minors.” The word “deviant” differs from “prurient” and

“shameful,” but it would seem no less suited to defining

and narrowing the reach of the statute. And the addition

of “for minors” to a version of the Miller standard was

approved in Ginsberg, 390 U. S., at 643, even though the

New York law “dr[ew] no distinction between young chil­

dren and adolescents who are nearing the age of majority,”

ante, at 8 (opinion of ALITO, J.).

Both the Miller standard and the law upheld in Gins

berg lack perfect clarity. But that fact reflects the dif­

ficulty of the Court’s long search for words capable of

protecting expression without depriving the State of a

legitimate constitutional power to regulate. As is well

known, at one point Justice Stewart thought he could do

no better in defining obscenity than, “I know it when I see

it.” Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (concur­

ring opinion). And Justice Douglas dissented from Miller’s

standard, which he thought was still too vague. 413 U. S.,

at 39–40. Ultimately, however, this Court accepted the

“community standards” tests used in Miller and Ginsberg.

They reflect the fact that sometimes, even when a precise

standard proves elusive, it is easy enough to identify

instances that fall within a legitimate regulation. And

they seek to draw a line, which, while favoring free ex­

pression, will nonetheless permit a legislature to find the

words necessary to accomplish a legitimate constitutional

objective. Cf. Williams, supra, at 304 (the Constitution

does not always require “ ‘perfect clarity and precise guid­

ance,’ ” even when “ ‘expressive activity’ ” is involved).

What, then, is the difference between Ginsberg and

Miller on the one hand and the California law on the

other? It will often be easy to pick out cases at which

California’s statute directly aims, involving, say, a charac­

ter who shoots out a police officer’s knee, douses him with

Cite as: 564 U. S. ____ (2011) 7

BREYER, J., dissenting

gasoline, lights him on fire, urinates on his burning body,

and finally kills him with a gunshot to the head. (Foot-

age of one such game sequence has been submitted in the

record.) See also ante, at 14–15 (ALITO, J., concurring in

judgment). As in Miller and Ginsberg, the California law

clearly protects even the most violent games that possess

serious literary, artistic, political, or scientific value.

§1746(d)(1)(A)(iii). And it is easier here than in Miller

or Ginsberg to separate the sheep from the goats at the

statute’s border. That is because here the industry it-

self has promulgated standards and created a review

process, in which adults who “typically have experience

with children” assess what games are inappropriate for

minors. See Entertainment Software Rating Board, Rating

Process, online at http://www.esrb.org/ratings/&ratings_

process.jsp (all Internet materials as visited June 24,

2011, and available in Clerk of Court’s case file).

There is, of course, one obvious difference: The Ginsberg

statute concerned depictions of “nudity,” while California’s

statute concerns extremely violent video games. But for

purposes of vagueness, why should that matter? JUSTICE

ALITO argues that the Miller standard sufficed because

there are “certain generally accepted norms concerning

expression related to sex,” whereas there are no similarly

“accepted standards regarding the suitability of violent

entertainment.” Ante, at 7–8. But there is no evidence

that is so. The Court relied on “community standards” in

Miller precisely because of the difficulty of articulating

“accepted norms” about depictions of sex. I can find no

difference—historical or otherwise—that is relevant to the

vagueness question. Indeed, the majority’s examples of

literary descriptions of violence, on which JUSTICE ALITO

relies, do not show anything relevant at all.

After all, one can find in literature as many (if not more)

descriptions of physical love as descriptions of violence.

Indeed, sex “has been a theme in art and literature

8 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

throughout the ages.” Ashcroft v. Free Speech Coalition,

535 U. S. 234, 246 (2002). For every Homer, there is a

Titian. For every Dante, there is an Ovid. And for all the

teenagers who have read the original versions of Grimm’s

Fairy Tales, I suspect there are those who know the story

of Lady Godiva.

Thus, I can find no meaningful vagueness-related dif­

ferences between California’s law and the New York law

upheld in Ginsberg. And if there remain any vagueness

problems, the state courts can cure them through inter­

pretation. See Erznoznik v. Jacksonville, 422 U. S. 205,

216 (1975) (“[S]tate statute should not be deemed facially

invalid unless it is not readily subject to a narrowing

construction by the state courts”). Cf. Ginsberg, supra, at

644 (relying on the fact that New York Court of Appeals

would read a knowledge requirement into the statute);

Berry v. Santa Barbara, 40 Cal. App. 4th 1075, 1088–

1089, 47 Cal. Rptr. 2d 661, 669 (1995) (reading a knowl­

edge requirement into a statute). Consequently, for pur­

poses of this facial challenge, I would not find the statute

unconstitutionally vague.

III

Video games combine physical action with expression.

Were physical activity to predominate in a game, govern­

ment could appropriately intervene, say by requiring

parents to accompany children when playing a game in­

volving actual target practice, or restricting the sale of

toys presenting physical dangers to children. See gener­

ally Consumer Product Safety Improvement Act of 2008,

122 Stat. 3016 (“Title I—Children’s Product Safety”). But

because video games also embody important expressive

and artistic elements, I agree with the Court that the First

Amendment significantly limits the State’s power to regu­

late. And I would determine whether the State has ex­

ceeded those limits by applying a strict standard of review.

Cite as: 564 U. S. ____ (2011) 9

BREYER, J., dissenting

Like the majority, I believe that the California law must

be “narrowly tailored” to further a “compelling interest,”

without there being a “less restrictive” alternative that

would be “at least as effective.” Reno v. American Civil

Liberties Union, 521 U. S. 844, 874, 875, 879 (1997). I

would not apply this strict standard “mechanically.”

United States v. Playboy Entertainment Group, Inc., 529

U. S. 803, 841 (2000) (BREYER, J., joined by Rehnquist,

C. J., and O’Connor and SCALIA, JJ., dissenting). Rather,

in applying it, I would evaluate the degree to which the

statute injures speech-related interests, the nature of the

potentially-justifying “compelling interests,” the degree to

which the statute furthers that interest, the nature and

effectiveness of possible alternatives, and, in light of this

evaluation, whether, overall, “the statute works speech­

related harm . . . out of proportion to the benefits that the

statute seeks to provide.” Ibid. See also Burson v. Free

man, 504 U. S. 191, 210 (1992) (plurality opinion) (apply­

ing strict scrutiny and finding relevant the lack of a

“significant impingement” on speech).

First Amendment standards applied in this way are

difficult but not impossible to satisfy. Applying “strict

scrutiny” the Court has upheld restrictions on speech that,

for example, ban the teaching of peaceful dispute resolu­

tion to a group on the State Department’s list of terrorist

organizations, Holder, 561 U. S., at ___ (slip op., at 22–34);

but cf. id., at ___ (slip op., at 1 ) (BREYER, J., dissenting),

and limit speech near polling places, Burson, supra, at

210–211 (plurality opinion). And applying less clearly

defined but still rigorous standards, the Court has allowed

States to require disclosure of petition signers, Doe v.

Reed, 561 U. S. ___ (2010), and to impose campaign con­

tribution limits that were “ ‘closely drawn’ to match a

‘sufficiently important interest,’ ” Nixon v. Shrink Missouri

Government PAC, 528 U. S. 377, 387–388 (2000).

Moreover, although the Court did not specify the “level

10 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

of scrutiny” it applied in Ginsberg, we have subsequently

described that case as finding a “compelling interest” in

protecting children from harm sufficient to justify limita­

tions on speech. See Sable Communications of Cal., Inc. v.

FCC, 492 U. S. 115, 126 (1989). Since the Court in Gins

berg specified that the statute’s prohibition applied to

material that was not obscene, 390 U. S., at 634, I cannot

dismiss Ginsberg on the ground that it concerned obscen­

ity. But cf. ante, at 6 (majority opinion). Nor need I de­

pend upon the fact that the Court in Ginsberg insisted

only that the legislature have a “rational” basis for finding

the depictions there at issue harmful to children. 390

U. S., at 639. For in this case, California has substan­

tiated its claim of harm with considerably stronger

evidence.

A

California’s law imposes no more than a modest restric­

tion on expression. The statute prevents no one from

playing a video game, it prevents no adult from buying a

video game, and it prevents no child or adolescent from

obtaining a game provided a parent is willing to help.

§1746.1(c). All it prevents is a child or adolescent from

buying, without a parent’s assistance, a gruesomely vio­

lent video game of a kind that the industry itself tells us it

wants to keep out of the hands of those under the age of

17. See Brief for Respondents 8.

Nor is the statute, if upheld, likely to create a prece-

dent that would adversely affect other media, say films, or

videos, or books. A typical video game involves a signifi­

cant amount of physical activity. See ante, at 13–14

(ALITO, J., concurring in judgment) (citing examples of the

increasing interactivity of video game controllers). And

pushing buttons that achieve an interactive, virtual form

of target practice (using images of human beings as tar­

gets), while containing an expressive component, is not

Cite as: 564 U. S. ____ (2011) 11

BREYER, J., dissenting

just like watching a typical movie. See infra, at 14.

B

The interest that California advances in support of the

statute is compelling. As this Court has previously de­

scribed that interest, it consists of both (1) the “basic”

parental claim “to authority in their own household to

direct the rearing of their children,” which makes it proper

to enact “laws designed to aid discharge of [parental]

responsibility,” and (2) the State’s “independent interest in

the well-being of its youth.” Ginsberg, 390 U. S., at 639–

640. Cf. id., at 639, n. 7 (“ ‘[O]ne can well distinguish laws

which do not impose a morality on children, but which

support the right of parents to deal with the morals of

their children as they see fit’ ” (quoting Henkin, Morals

and the Constitution: The Sin of Obscenity, 63 Colum.

L. Rev. 391, 413, n. 68 (1963))). And where these interests

work in tandem, it is not fatally “underinclusive” for a

State to advance its interests in protecting children

against the special harms present in an interactive video

game medium through a default rule that still allows

parents to provide their children with what their parents

wish.

Both interests are present here. As to the need to help

parents guide their children, the Court noted in 1968

that “ ‘parental control or guidance cannot always be

provided.’ ” 390 U. S., at 640. Today, 5.3 million grade­

school-age children of working parents are routinely

home alone. See Dept. of Commerce, Census Bureau,

Who’s Minding the Kids? Child Care Arrangements:

Spring 2005/Summer 2006, p. 12 (2010), online at http://

www.census.gov/prod/2010pubs/p70-121.pdf. Thus, it has,

if anything, become more important to supplement par­

ents’ authority to guide their children’s development.

As to the State’s independent interest, we have pointed

out that juveniles are more likely to show a “ ‘lack of ma­

12 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

turity’ ” and are “more vulnerable or susceptible to nega­

tive influences and outside pressures,” and that their

“character . . . is not as well formed as that of an adult.”

Roper v. Simmons, 543 U. S. 551, 569–570 (2005). And we

have therefore recognized “a compelling interest in pro­

tecting the physical and psychological well-being of mi­

nors.” Sable Communications, supra, at 126.

At the same time, there is considerable evidence that

California’s statute significantly furthers this compelling

interest. That is, in part, because video games are excel­

lent teaching tools. Learning a practical task often means

developing habits, becoming accustomed to performing the

task, and receiving positive reinforcement when perform­

ing that task well. Video games can help develop habits,

accustom the player to performance of the task, and

reward the player for performing that task well. Why

else would the Armed Forces incorporate video games

into its training? See CNN, War Games: Military Train­

ing Goes High-Tech (Nov. 22, 2001), online at

http://articles.cnn.com/2001–11–2 / tech / war.games_1_ict-

2

bill-swartout-real-world-training?_s=PM:TECH.

When the military uses video games to help soldiers

train for missions, it is using this medium for a beneficial

purpose. But California argues that when the teaching

features of video games are put to less desirable ends,

harm can ensue. In particular, extremely violent games

can harm children by rewarding them for being violently

aggressive in play, and thereby often teaching them to be

violently aggressive in life. And video games can cause

more harm in this respect than can typically passive

media, such as books or films or television programs.

There are many scientific studies that support Califor­

nia’s views. Social scientists, for example, have found

causal evidence that playing these games results in harm.

Longitudinal studies, which measure changes over time,

have found that increased exposure to violent video games

Cite as: 564 U. S. ____ (2011) 13

BREYER, J., dissenting

causes an increase in aggression over the same period.

See Möller & Krahé, Exposure to Violent Video Games

and Aggression in German Adolescents: A Longitudinal

Analysis, 35 Aggressive Behavior 75 (2009); Gentile &

Gentile, Violent Video Games as Exemplary Teachers: A

Conceptual Analysis, 37 J. Youth & Adolescence 127

(2008); Anderson et al., Longitudinal Effects of Violent

Video Games on Aggression in Japan and the United

States, 122 Pediatrics e1067 (2008); Wallenius & Puna­

mäki, Digital Game Violence and Direct Aggression in

Adolescence: A Longitudinal Study of the Roles of Sex,

Age, and Parent-Child Communication, 29 J. Applied

Developmental Psychology 286 (2008).

Experimental studies in laboratories have found that

subjects randomly assigned to play a violent video game

subsequently displayed more characteristics of aggression

than those who played nonviolent games. See, e.g., Ander­

son et al., Violent Video Games: Specific Effects of Violent

Content on Aggressive Thoughts and Behavior, 36 Ad­

vances in Experimental Soc. Psychology 199 (2004).

Surveys of 8th and 9th grade students have found a

correlation between playing violent video games and

aggression. See, e.g., Gentile, Lynch, Linder, & Walsh,

The Effects of Violent Video Game Habits On Adolescent

Hostility, Aggressive Behaviors, and School Performance,

27 J. Adolescence 5 (2004).

Cutting-edge neuroscience has shown that “virtual

violence in video game playing results in those neural

patterns that are considered characteristic for aggressive

cognition and behavior.” Weber, Ritterfeld, & Mathiak,

Does Playing Violent Video Games Induce Aggression?

Empirical Evidence of a Functional Magnetic Resonance

Imaging Study, 8 Media Psychology 39, 51 (2006).

And “meta-analyses,” i.e., studies of all the studies, have

concluded that exposure to violent video games “was posi­

tively associated with aggressive behavior, aggressive

14 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

cognition, and aggressive affect,” and that “playing violent

video games is a causal risk factor for long-term harmful

outcomes.” Anderson et al., Violent Video Game Effects on

Aggression, Empathy, and Prosocial Behavior in Eastern

and Western Countries: A Meta-Analytic Review, 136

Psychological Bulletin 151, 167, 169 (2010) (emphasis

added).

Some of these studies take care to explain in a common-

sense way why video games are potentially more harmful

than, say, films or books or television. In essence, they

say that the closer a child’s behavior comes, not to watch­

ing, but to acting out horrific violence, the greater the

potential psychological harm. See Bushman & Hues­

mann, Aggression, in 2 Handbook of Social Pscyhology

833, 851 (S. Fiske, D. Gilbert, & G. Lindzey eds., 5th ed.

2010) (video games stimulate more aggression because

“[p]eople learn better when they are actively involved,”

players are “more likely to identify with violent charac­

ters,” and “violent games directly reward violent behav­

ior”); Polman, de Castro, & van Aken, Experimental Study

of the Differential Effects of Playing Versus Watching

Violent Video Games on Children’s Aggressive Behavior,

34 Aggressive Behavior 256 (2008) (finding greater ag­

gression resulting from playing, as opposed to watching, a

violent game); C. Anderson, D. Gentile, & K. Buckley,

Violent Video Game Effects on Children and Adolescents

136–137 (2007) (three studies finding greater effects from

games as opposed to television). See also infra, at 15–16

(statements of expert public health associations agreeing

that interactive games can be more harmful than “passive”

media like television); ante, at 12–17 (ALITO, J., concur­

ring in judgment).

Experts debate the conclusions of all these studies. Like

many, perhaps most, studies of human behavior, each

study has its critics, and some of those critics have pro­

duced studies of their own in which they reach different

Cite as: 564 U. S. ____ (2011) 15

BREYER, J., dissenting

conclusions. (I list both sets of research in the appen­

dixes.) I, like most judges, lack the social science expertise

to say definitively who is right. But associations of public

health professionals who do possess that expertise have

reviewed many of these studies and found a significant

risk that violent video games, when compared with more

passive media, are particularly likely to cause children

harm.

Eleven years ago, for example, the American Academy

of Pediatrics, the American Academy of Child & Adoles­

cent Psychiatry, the American Psychological Association,

the American Medical Association, the American Academy

of Family Physicians, and the American Psychiatric Asso­

ciation released a joint statement, which said:

“[O]ver 1000 studies . . . point overwhelmingly to a

causal connection between media violence and aggres­

sive behavior in some children . . . [and, though less

research had been done at that time, preliminary

studies indicated that] the impact of violent interac­

tive entertainment (video games and other interactive

media) on young people . . . may be significantly more

severe than that wrought by television, movies, or mu­

sic.” Joint Statement on the Impact of Entertainment

Violence on Children (2000) (emphasis added), online

at http://www.aap.org/advocacy/releases/jstmtevc.htm.

Five years later, after more research had been done, the

American Psychological Association adopted a resolution

that said:

“[C]omprehensive analysis of violent interactive

video game research suggests such exposure . . .

increases aggressive behavior, . . . increases aggres­

sive thoughts, . . . increases angry feelings, . . . de­

creases helpful behavior, and . . . increases physio-

logical arousal.” Resolution on Violence in Video

Games and Interactive Media (2005), online at

16 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

http:// www.apa.org / about / governance / council / policy/

interactive-media.pdf.

The Association added:

“[T]he practice, repetition, and rewards for acts of vio­

lence may be more conducive to increasing aggressive

behavior among children and youth than passively

watching violence on TV and in films.” Ibid. (empha­

sis added).

Four years after that, in 2009, the American Academy of

Pediatrics issued a statement in significant part about

interactive media. It said:

“Studies of these rapidly growing and ever-more­

sophisticated types of media have indicated that the

effects of child-initiated virtual violence may be even

more profound than those of passive media such as

television. In many games the child or teenager is

‘embedded’ in the game and uses a ‘joystick’ (handheld

controller) that enhances both the experience and the

aggressive feelings.” Policy Statement—Media Vio­

lence, 124 Pediatrics 1495, 1498 (2009) (emphasis

added).

It added:

“Correlational and experimental studies have re­

vealed that violent video games lead to increases in

aggressive behavior and aggressive thinking and de­

creases in prosocial behavior. Recent longitudinal

studies . . . have revealed that in as little as 3 months,

high exposure to violent video games increased physi­

cal aggression. Other recent longitudinal studies . . .

have revealed similar effects across 2 years.” Ibid.

(footnotes omitted).

Unlike the majority, I would find sufficient grounds in

these studies and expert opinions for this Court to defer to

Cite as: 564 U. S. ____ (2011) 17

BREYER, J., dissenting

an elected legislature’s conclusion that the video games in

question are particularly likely to harm children. This

Court has always thought it owed an elected legislature

some degree of deference in respect to legislative facts of

this kind, particularly when they involve technical mat­

ters that are beyond our competence, and even in First

Amendment cases. See Holder, 561 U. S., at ___ (slip op.,

at 28–29) (deferring, while applying strict scrutiny, to the

Government’s national security judgments); Turner

Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195–196

(1997) (deferring, while applying intermediate scrutiny, to

the Government’s technological judgments). The majority,

in reaching its own, opposite conclusion about the validity

of the relevant studies, grants the legislature no deference

at all. Compare ante, at 12–13 (stating that the studies do

not provide evidence that violent video games “cause”

harm (emphasis deleted)), with supra, at 12–13 (citing

longitudinal studies finding causation).

C

I can find no “less restrictive” alternative to California’s

law that would be “at least as effective.” See Reno, 521

U. S., at 874. The majority points to a voluntary alterna­

tive: The industry tries to prevent those under 17 from

buying extremely violent games by labeling those games

with an “M” (Mature) and encouraging retailers to restrict

their sales to those 17 and older. See ante, at 15–16. But

this voluntary system has serious enforcement gaps.

When California enacted its law, a Federal Trade Com­

mission (FTC) study had found that nearly 70% of unac­

companied 13- to 16-year-olds were able to buy M-rated

video games. FTC, Marketing Violent Entertainment to

Children 27 (2004), online at http://www.ftc.gov/os/2004/

07/040708kidsviolencerpt.pdf. Subsequently the volun-

tary program has become more effective. But as of

the FTC’s most recent update to Congress, 20% of those

18 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

under 17 are still able to buy M-rated video games, and,

breaking down sales by store, one finds that this num-

ber rises to nearly 50% in the case of one large national

chain. FTC, Marketing Violent Entertainment to Chil-

dren 28 (2009), online at http://www.ftc.gov/os/2009/12/

P994511violententertainment.pdf. And the industry could

easily revert back to the substantial noncompliance that

existed in 2004, particularly after today’s broad ruling

reduces the industry’s incentive to police itself.

The industry also argues for an alternative technological

solution, namely “filtering at the console level.” Brief

for Respondents 53. But it takes only a quick search of

the Internet to find guides explaining how to circum­

vent any such technological controls. YouTube viewers,

for example, have watched one of those guides (called

“How to bypass parental controls on the Xbox 360”) more

than 47,000 times. See http://www.youtube.com/watch?v=

CFlVfVmvN6k.

IV

The upshot is that California’s statute, as applied to its

heartland of applications (i.e., buyers under 17; extremely

violent, realistic video games), imposes a restriction on

speech that is modest at most. That restriction is justified

by a compelling interest (supplementing parents’ efforts to

prevent their children from purchasing potentially harm­

ful violent, interactive material). And there is no equally

effective, less restrictive alternative. California’s statute

is consequently constitutional on its face—though litigants

remain free to challenge the statute as applied in particu­

lar instances, including any effort by the State to apply it

to minors aged 17.

I add that the majority’s different conclusion creates a

serious anomaly in First Amendment law. Ginsberg

makes clear that a State can prohibit the sale to minors of

depictions of nudity; today the Court makes clear that a

Cite as: 564 U. S. ____ (2011) 19

BREYER, J., dissenting

State cannot prohibit the sale to minors of the most vio­

lent interactive video games. But what sense does it make

to forbid selling to a 13-year-old boy a magazine with an

image of a nude woman, while protecting a sale to that 13­

year-old of an interactive video game in which he actively,

but virtually, binds and gags the woman, then tortures

and kills her? What kind of First Amendment would

permit the government to protect children by restrict-

ing sales of that extremely violent video game only when

the woman—bound, gagged, tortured, and killed—is also

topless?

This anomaly is not compelled by the First Amendment.

It disappears once one recognizes that extreme violence,

where interactive, and without literary, artistic, or similar

justification, can prove at least as, if not more, harmful to

children as photographs of nudity. And the record here is

more than adequate to support such a view. That is why I

believe that Ginsberg controls the outcome here a fortiori.

And it is why I believe California’s law is constitutional on

its face.

This case is ultimately less about censorship than it is

about education. Our Constitution cannot succeed in

securing the liberties it seeks to protect unless we can

raise future generations committed cooperatively to mak­

ing our system of government work. Education, however,

is about choices. Sometimes, children need to learn by

making choices for themselves. Other times, choices are

made for children—by their parents, by their teachers,

and by the people acting democratically through their

governments. In my view, the First Amendment does not

disable government from helping parents make such a

choice here—a choice not to have their children buy ex­

tremely violent, interactive video games, which they more

than reasonably fear pose only the risk of harm to those

children.

For these reasons, I respectfully dissent.

20 BROWN v. ENTERTAINMENT MERCHANTS ASSN.

BREYER, J., dissenting

Appendix A to the opinion of BREYER, J.

APPENDIXES

With the assistance of the Supreme Court Library, I

have compiled these two appendixes listing peer-reviewed

academic journal articles on the topic of psychological

harm resulting from playing violent video games. The

library conducted a search for relevant articles on the

following databases: PsycINFO, PubMed, Academic

Search Premier, ArticleFirst (OCLC), and Dialog (files 1,

7, 34, 98, 121, 142, 144, 149). The following search terms

were used: “(video* or computer or arcade or online) and

(game*) and (attack* or fight* or aggress* or violen* or

hostil* or ang* or arous* or prosocial or help* or desens*

or empathy).” After eliminating irrelevant matches based

on title or abstract, I categorized these articles as either

supporting the hypothesis that violent video games are

harmful (listed in Appendix A), or not supporting/rejecting

the hypothesis that violent video games are harmful

(listed in Appendix B).

Many, but not all, of these articles were available to the

California Legislature or the parties in briefing this case.

I list them because they suggest that there is substantial

(though controverted) evidence supporting the expert

associations of public health professionals that have con­

cluded that violent video games can cause children psycho­

logical harm. See supra, at 15–16. And consequently,

these studies help to substantiate the validity of the origi­

nal judgment of the California Legislature, as well as that

judgment’s continuing validity.

A

Anderson & Bushman, Effects of Violent Video Games on

Aggressive Behavior, Aggressive Cognition, Aggressive

Affect, Physiological Arousal, and Prosocial Behavior: A

Meta-Analytic Review of the Scientific Literature, 12

Psychological Science: J. Am. Psychological Society 353

Cite as: 564 U. S. ____ (2011) 21

BREYER, J., dissenting

Appendix A to the opinion of BREYER, J.

(2001).

Anderson & Dill, Video Games and Aggressive Thoughts,

Feelings, & Behavior in the Laboratory and in Life, 78

J. Personality & Soc. Psychology 772 (2000).

Anderson et al., Violent Video Games: Specific Effects of

Violent Content on Aggressive Thoughts and Behavior,

36 Advances in Experimental Soc. Psychology 199

(2004).

Anderson & Ford, Affect of the Game Player: Short-Term

Effects of Highly and Mildly Aggressive Video Games, 12

Personality & Soc. Psychology Bull. 390 (1986).

Anderson & Morrow, Competitive Aggression Without

Interaction: Effects of Competitive Versus Cooperative

Instructions on Aggressive Behavior in Video Games, 21

Personality & Soc. Psychology Bull. 1020 (1995).

Anderson et al., Longitudinal Effects of Violent Video

Games on Aggression in Japan and the United States,

122 Pediatrics e1067 (2008).

Anderson et al., Violent Video Game Effects on Aggres­

sion, Empathy, and Prosocial Behavior in Eastern and

Western Countries: A Meta-Analytic Review, 136 Psy­

chological Bull. 151 (2010).

Anderson, An Update on the Effects of Playing Violent

Video Games, 27 J. Adolescence 113 (2004).

Anderson et al., The Influence of Media Violence on Youth,

4 Psychological Science in the Public Interest 81 (2003).

Anderson & Carnagey, Causal Effects of Violent Sports

Video Games on Aggression: Is it Competitiveness or

Violent Content? 45 J. Experimental Soc. Psychology 731

(2009).

Anderson & Murphy, Violent Video Games and Aggressive

Behavior in Young Women, 29 Aggressive Behavior 423

(2003).

Arriaga, Esteves, Carneiro, & Monteiro, Violent Computer

Games and Their Effects on State Hostilit

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