Business Law and the Regulation of Business 11th Edition by Richard Mann, Barry Roberts

تمرين 15

FACTS A California statute (the Act) prohibits the sale or rental of ''violent video games'' to minors, and requires their packaging to be labeled ''18.'' The Act does ''not apply if the violent video game is sold or rented to a minor by the minor's parent, grandparent, aunt, uncle, or legal guardian.'' The Act covers games ''in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted'' in a manner that ''[a] reasonable person, considering 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 suitable for minors,'' and that ''causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.'' Violation of the Act is punishable by a civil fine of up to $1,000.
The plaintiffs, representing the video-game and software industries, brought a challenge to the Act in the United States District Court for the Northern District of California. That court concluded that the Act violated the First Amendment and permanently enjoined its enforcement. The Court of Appeals affirmed, and the U.S. Supreme court granted certiorari.
DECISION The judgment of the Court of Appeals is affirmed.
OPINION Scalia, J. 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. *** 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. *** 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 communication appears. [Citation.]
The most basic of those principles is this: ''[A]s a general matter, … government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'' [Citation.] There are of course exceptions. '''From 1791 to the present,' … the First Amendment has 'permitted restrictions upon the content of speech in a few limited areas,' and has never 'include[d] a freedom to disregard these traditional limitations.''' [Citations.] These limited areas-such as obscenity, [citation], incitement, [citation], and fighting words, [citation]-represent ''well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,'' [citation].
Last Term, in [citation], 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. ***
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The California 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, it wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.
That is unprecedented and mistaken. ''[M]inors are 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.'' [Citation.] No doubt a State possesses legitimate power to protect children from harm, [citation], 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.'' [Citation.]
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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 *** As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. ***
Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny-that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. [Citation.] The State must specifically identify an ''actual problem'' in need of solving, [citation], and the curtailment of free speech must be actually necessary to the solution, [citation]. That is a demanding standard. ''It is rare that a regulation restricting speech because of its content will ever be permissible.'' [Citation.]
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. ***
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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,'' [citation] (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 concerned 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. [Citation.] 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 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 harmless 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.
INTERPRETATION Because video games qualify for First Amendment protection and new categories of unprotected speech may not be added, a state must show that a law restricting video game sales to minors (1) is justified by a compelling government interest and (2) is narrowly drawn to serve that interest.
CRITICAL THINKING QUESTION Is there a less restrictive alternative to California's law that would be at least as effective? Explain.