Hastings Constitutional Law Quarterly


In 2011, in Brown v. Entertainment Merchants Association, the Supreme Court declared unconstitutional California's effort to regulate the sale of certain video games to minors. The Court's ruling deserves careful review because it has halted legislative efforts to regulate video games. Although the ruling is unobjectionable to the extent it concluded the challenged statute was unconstitutionally vague, the decision went well beyond that. It would be one thing if the Court left open room for legislatures to draft clearer legislation that eliminated ambiguity regarding what video games are unsuitable for minors. But the Court held that because video games are protected by the First Amendment (which is manifestly correct), the Constitution forbids states from regulating their dissemination to minors (which does not follow from the Court's precedent).

This Article will show that the Court made a series of fundamental errors in reaching this conclusion. Two are particularly important. First, the Court decided the case as if the challenged law restricted an adult's right to the material. It relied on caselaw that forbids state officials from regulating First Amendment speech available to adults. But those precedents have almost no pertinence when applied to review the validity of a statute merely designed to assist parents in raising their children. In addition, the Court demonstrated extreme insensitivity, bordering on hostility, to parents worried about how to prevent their children from gaining access to materials the parents do not want them to have. This Article will show that parental rights are greater than the Court acknowledged and that children's rights are fewer than the Court suggested.