Sentenza

SUPREME COURT OF THE UNITED STATES.BROWN, GOVERNOR OF CALIFORNIA, ET AL. v. ENTERTAINMENT MERCHANTS ASSOCIATION ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

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SUPREME COURT OF THE UNITED STATES

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 thesale 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 newand different communication medium. Joseph Burstyn, Inc. v. Wil-son, 343 U. S. 495, 503. The most basic principle—that governmentlacks 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 ofunprotected 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 isnot 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
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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 playerparticipates 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 itpasses strict scrutiny, i.e., it is justified by a compelling governmentinterest 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 exposureto 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.
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NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Wash-ington, D. C. 20543, of any typographical or other formal errors, in orderthat 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 toprevailing 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 valuefor minors.” §1746(d)(1)(A). Violation of the Act is pun-ishable by a civil fine of up to $1,000. §1746.3.
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Respondents, representing the video-game and softwareindustries, brought a preenforcement challenge to the Actin 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 SpeechClause exists principally to protect discourse on publicmatters, but we have long recognized that it is difficult todistinguish 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 moviesthat preceded them, video games communicate ideas—andeven social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as theplayer'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 approvalof 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 notvary” when a new and different medium for communica-
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tion appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952).
The most basic of those principles is this: “[A]s a generalmatter, . . . government has no power to restrict expres-sion because of its message, its ideas, its subject matter, orits 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 limitedclasses 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 fromour obscenity jurisprudence, see Miller v. California, 413
U. S. 15, 24 (1973), exempted depictions with “seriousreligious, political, scientific, educational, journalistic,
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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 hadlaws 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 thereare 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 makepermissible 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
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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 FirstAmendment 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 crimeagainst 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 writtenindecency or obscenity,” it said, “than the continuing andchangeable experience of the community as to what typesof books are likely to bring about the corruption of publicmorals 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 itwere 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.
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Because speech about violence is not obscene, it is of noconsequence that California's statute mimics the New York statute regulating obscenity-for-minors that weupheld 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 protectedexpression,” 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 foradults 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 ——————
2The 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 morbidinterests 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. PenalLaw §484–h(1)(f)).
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entitled to a significant measure of First Amendmentprotection, and only in relatively narrow and well-definedcircumstances 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 doesnot 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 thinksunsuitable 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 towithout 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 thepromoters 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 fromhearing or saying anything without their parents' prior consent. The latter would mean, for example, that it could be made criminal to admitpersons under 18 to a political rally without their parents' prior written consent—even a political rally in support of laws against corporalpunishment 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 areligious 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 religiousfreedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over children'sspeech and religion; they impose governmental authority, subject only
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Opinion of the Court
California's argument would fare better if there were alongstanding 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—orread to them when they are younger—contain no shortageof 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 bygrinding out his eye with a heated stake. The Odyssey ofHomer, 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 beskewered 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
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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.
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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 dayswhen the police looked upon dime novels as the mostdangerous 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 forevil,” 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 causesthe provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not toenjoy 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 towhich 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 muchentitled to the protection of free speech as the best of literature.” Winters v. New York, 333 U. S. 507, 510 (1948).
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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 andearly 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 ofComic 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 specialproblems because they are “interactive,” in that the playerparticipates in the violent action on screen and determines its outcome. The latter feature is nothing new: Sinceat 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 inthe violent action, that seems to us more a matter of de-gree than of kind. As Judge Posner has observed, all
—————— 5The crusade against comic books was led by a psychiatrist, Frederic Wertham, who told the Senate Judiciary Committee that “as long asthe crime comic books industry exists in its present forms there are nosecure homes.” Juvenile Delinquency (Comic Books): Hearings before the Subcommittee to Investigate Juvenile Delinquency, 83d Cong., 2dSess., 84 (1954). Wertham's objections extended even to Supermancomics, 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).
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literature is interactive. “[T]he better it is, the moreinteractive. 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, toexperience 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—butdisgust 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 ofprotected speech, it is invalid unless California can dem-onstrate that it passes strict scrutiny—that is, unless it isjustified by a compelling government interest and is nar-rowly drawn to serve that interest. R. A. V., 505 U. S., at
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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 canmake a predictive judgment that such a link exists, basedon 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 toshow 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 ——————
6See 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).
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games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the researchis 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 thatviolent 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 bytheir 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
—————— 7One study, for example, found that children who had just finishedplaying 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, thatthis subject-matter restriction on speech is justified. Nor is JUSTICE ALITO correct in attributing to us the view that “violent video gamesreally present no serious problem.” Post, at 2. Perhaps they do present
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Of course, California has (wisely) declined to restrictSaturday morning cartoons, the sale of games rated foryoung 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, ratherthan 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 anotherrespect—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 moreserious than this one—that cannot be addressed by governmentalrestriction of free expression: for example, the problem of encouraginganti-Semitism (National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam)), the problem of spreading a political philosophyhostile 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 dissentingopinion) (listing competing academic articles discussing the harmful-ness vel non of violent video games). The vast preponderance of thisresearch is outside the record—and in any event we do not see how itcould 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 othermedia. Post, at 2. If that is so, then strict scrutiny plainly has not been satisfied.
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are qualitatively different from other portrayals of vio-lence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the handsof 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 partiesfor conveying protected speech to children just in casetheir 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 inrelatively 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 theAct'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 inplace 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 gamesubmitted: 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 toprominently display information about the ESRB systemin their stores; to refrain from renting or selling adults-only games to minors; and to rent or sell “M” rated games
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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 outpacesthe movie and music industries” in “(1) restricting target-marketing of mature-rated products to children; (2) clearlyand prominently disclosing rating information; and (3) re-stricting children's access to mature-rated products at retail.” FTC, Report to Congress, Marketing ViolentEntertainment 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'scase file) (FTC Report). This system does much to ensurethat minors cannot purchase seriously violent games ontheir own, and that parents who care about the matter canreadily 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 arestill 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 byincreasing regulation, the government does not have a compelling interest in each marginal percentage point by which its goals areadvanced.
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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 censorviolent entertainment for minors. While we have pointed out above that some of the evidence brought forward tosupport the harmfulness of video games is unpersuasive,we do not mean to demean or disparage the concerns thatunderlie 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 theCalifornia Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the youngor harm their moral development. Our task is only to saywhether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention andpunishment 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 ofnecessity 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 actionapply.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 rightsthey 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
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veto. And as a means of assisting concerned parents it isseriously 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 isnot 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.
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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 statelegislature 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 precisionthat 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 theCourt'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 possibilitythat developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technologyis 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
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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 seriousproblem. 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 bythe 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
—————— 1It 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).
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special First Amendment concerns because of its obviouschilling effect on free speech.” Reno v. American Civil Liberties Union, 521 U. S. 844, 871–872 (1997). Vaguelaws 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 guidancehave never been required even of regulations that restrictexpressive activity,” Ward v. Rock Against Racism, 491
U. S. 781, 794 (1989), “government may regulate in thearea” 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 tolaws 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 Constitutiondemands. 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 thatprohibited the sale of certain sexually related materials tominors, 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 byadding the words “for minors” to each element of the
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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 theprotection of Ginsberg, the California Legislature beganwith the obscenity test adopted in Miller v. California, 413
U. S. 15 (1973), a decision that revised the obscenity testspreviously set out in Roth and Memoirs. The legislaturethen 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 imposesthe following threshold limitation: “[T]he range of optionsavailable 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 thisthreshold test is subject to the law's restrictions if it also satisfies three further requirements:
“(i) A reasonable person, considering the game as a
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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 concernstheir 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 statutethat 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 materialsthat 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 —————— 2Under the California law, a game that meets the threshold require-ment set out in text also qualifies as “violent” if it “[e]nables the playerto virtually inflict serious injury upon images of human beings orcharacters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture orserious 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 therequirements set out in text are now before us.
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inherent in the open-ended term ‘patently offensive'”).3
By contrast, the threshold requirement of the Californialaw 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 bythe California law. It provides that a video game cannot qualify as “violent” unless “the range of options availableto 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 manydepictions of killing and maiming4 as suitable features of popular entertainment, including entertainment that iswidely 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 partto 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 itsown judgment regarding the kind and degree of violencethat is acceptable in games played by minors (or by minors in particular age groups). Instead, the legislature reliedon undefined societal or community standards.
—————— 3The provision of New York law under which the petitioner was con-victed in Ginsberg was framed with similar specificity. This provisionapplied to depictions of “nudity” and “sexual conduct,” and both thoseterms were specifically and unambiguously defined. See 390 U. S., at 645–647 (Appendix A to opinion of the Court). 4The 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 ThirdNew International Dictionary 1362 (2002) (hereinafter Webster's).
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One of the three elements at issue here refers expressly to “prevailing standards in the community as to what issuitable 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 findthat 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 accordancewith some generally accepted standard—as normal andhealthy. 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 thatthese standards are sufficiently well known so that aperson of ordinary intelligence would have fair notice as towhether 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-
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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 toshape 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 communitystandards 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 attorneydefending the constitutionality of the California law saidthat 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
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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 evidencethat the California Legislature intended the law to belimited in this way, or cited any decisions from its courtsthat 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 statutewould or would not survive First Amendment scrutiny.We should address that question only if and when it isnecessary 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 preparedat 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 sharplyfrom 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 commercialgain. The California law involved here, by contrast, is
—————— 5At 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.
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limited to the sale or rental of violent video games to minors. The California law imposes no restriction on thecreation 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 otheryoung relatives if they see fit.
Second, Stevens does not support the proposition that alaw like the one at issue must satisfy strict scrutiny. The portion of Stevens on which the Court relies rejected theGovernment's contention that depictions of animal crueltywere 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 mustsurmount 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, assuggesting 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.
11
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B
The Court's opinion distorts the effect of the California law. I certainly agree with the Court that the governmenthas no “free-floating power to restrict the ideas to whichchildren may be exposed,” ante, at 7, but the California law does not exercise such a power. If parents want theirchild to have a violent video game, the California law does not interfere with that parental prerogative. Instead, the California law reinforces parental decisionmaking inexactly the same way as the New York statute upheld in Ginsberg. Under both laws, minors are prevented frompurchasing 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 restricttheir 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 thethreat 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 systemat the time of the enactment of the California law left much to be desired6—or that future enforcement maydecline if the video-game industry perceives that anythreat of government regulation has vanished. Nor does
—————— 6A 2004 Federal Trade Commission Report showed that 69 percent ofunaccompanied children ages 13 to 16 were able to buy M-rated gamesand 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).
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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 bevery different from anything that we have seen before. Any assessment of the experience of playing video gamesmust take into account certain characteristics of the video games that are now on the market and those that arelikely to be available in the near future. Today's most advanced video games create realistic alternative worlds in which millions of players immersethemselves 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 thegames already on the market can produce high definition images,8 and it is predicted that it will not be long before