Reference no: EM133346465

Discussion Forum concerns the Supreme Court's use of the "heightened" or "strict scrutiny" standard of review to assess whether the particular restrictions imposed by a state law on freedom of speech - among the most "fundamental" of our Constitution's protected civil liberties - may violate the Constitution's guarantee of First Amendment liberties.

In Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) , Justice Antonin Scalia led a majority of the Supreme Court in striking down California's ban on the sale of violent video games to underage children, over the dissenting opinions Justices Stephen Breyer and Clarence Thomas, respectively, which argued, on different grounds, that California's asserted governmental interest in protecting the right of parents to make decisions for their child properly addressed how parents should make such decisions, as opposed to how they in fact do make such decisions.

In constitutional challenges to state laws restricting certain asserted liberties, the Court first determines the "standard of review" that will be applied in assessing whether the restrictions imposed by the law, such as California's ban on the sale of violent video games to underage children, unconstitutionally prohibit asserted liberty interests. The "heightened" or "strict" standard of review applies in cases where the asserted liberty interests at stake are "fundamental" civil liberties, such as our First Amendment freedom of speech and expression. This standard of review also applies in challenges to governmental action alleging violation of the the Fourteenth Amendment's guarantee of "equal protection under the laws," for example in cases alleging discrimination (as for example, of LGBT individuals). And the same "heightened" standard of review is also accorded in governmental action claimed by the defendant in a criminal prosecution to be in violation of constitutional protections guaranteed under the Fourth, Fifth, Sixth and Eighth amendments.

The matter of Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) concerned challenges brought by a coalition of violent video game creators and merchants claiming that California's ban on the sale of violent video games to underage children unconstitutionally violated the video game creators' and merchants' First Amendment right to freely create and publish or distribute content and ideas that have serious literary, artistic, political, or scientific value.

The California law imposed a civil fine of up to $1,000 upon any person who distributed a violent video game within the state without labeling it "18," or who engaged in the sale or rental of a labeled violent video game to a person under the age of 18. Representatives of the video game and software industries claimed that the statute violated their First Amendment right to freedom of expression.

In cases grounded upon first amendment liberties, the state is required, under the "heightened" or "strict scrutiny" standard of review, FIRST, to prove that the restrictions on the complainant's asserted liberties are justified by a "compelling" or "exceedingly persuasive" governmental interest. The state of California asserted that the ban on the sale of violent video games to minors was necessary in order to protect the parental right to make decisions for their child. The statute, the government argued, properly addressed how parents should make such decisions for their children, with a view to guiding their healthy and disciplined maturation.

If the state succeeds in establishing that the particular restrictions imposed by the law are justified by a "compelling" governmental interest (such as to protect the parental right to make decisions for their child with a view to guiding their healthy and disciplined maturation), THEN the state, under this "heightened" scrutiny standard of review, must go on to prove that the particular restrictions imposed by law are "narrowly tailored" to achieve the state's asserted governmental interest, meaning that the state must prove that the restrictions are NEITHER "overbroad" (the law's restrictions must not adversely affect the liberty interests of persons not intended to be protected under the law) NOR "underinclusive" (the law's restrictions must apply to any and all things that fall under the law's asserted justification).

The Supreme Court in Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011), Justice Scalia writing for the majority, ruled that California's ban on the sale of violent video games to underage children was BOTH "overbroad" (in that the law's restrictions adversely affected the liberty interests of California parents or custodians who did not consider violent video game entertainment to be harmful to the maturational development of their children, and who believed rather that their children should be able to make such buying decisions on their own) NOR "underinclusive" (in that the law's restrictions imposed a criminal penalty only on violent video games, but did not impose such restrictions on the availability to children of equally violent TV shows, or on such violent depictions as exist in Greek mythology (which includes representations of incest, cannibalism, human sacrifice, etc., and which children might be required to view and study in school).

Justice Samuel Alito wrote separately in CONCURRENCE with the majority opinion, agreeing that the law was unconstitutional, but not so much as a violation of free speech, but rather because the law was "unconstitutionally vague," since the statute failed to adequately define and distinguish the essential characteristics of video game entertainment from other sorts of entertainment that some parents might consider to be equally harmful to the disciplinary maturation of their children, such as certain violent TV shows, and therefore the law violated the Constitution's "due process" requirement that the law must give adequate notice to people as to what specific sort of conduct is prohibited.

Justices Clarence Thomas, in his dissenting opinion, argued that that California's asserted governmental interest in protecting the right of parents to make decisions for their child properly addressed how parents should make such decisions, as opposed to how they in fact do make such decisions in certain instances.

Justice Breyer, in his dissenting opinion, wrote "... [A] State can prohibit the sale to minors of depictions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent 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 restricting sales of that extremely violent video game only when the woman-bound, gagged, tortured, and killed-is also topless?"),

FIRST: You must answer in your contributing post(s) the questions:

[1] HOW MIGHT new legislation might be designed restricting the sale of violent video games to children, WITHOUT violating the video game creators' and vendors' freedom of expression. That is, HOW MIGHT, if it is possible at all, such a newly designed law fashion certain exceptions to the ban specifically for parents and wardens or caretakers of children who do not think that violent video game entertainment is harmful to their children and who believe, instead, that their children should be able to make such buying decisions on their own,

AND

[2] HOW MIGHT such a newly designed law adequately define and distinguish the essential characteristics of such video game entertainment from other sorts of entertainment that some parents might consider to be equally harmful to the disciplinary maturation of their children, such as certain violent TV shows, or even the explicit and violent representations that exist in much of Greek mythology?

AND SECOND: You must ALSO indicate, defending your point of view, WHICH of the opinions in Brown v. Entertainment Merchants Ass'n, you believe to be the BEST REASONED, from among: [1] Justice Scalia's lead opinion for the majority of the Court, OR [2] the concurring opinion of Justice Alito (beginning on page 6 of the handout), or [3] the dissenting opinion of Justice Thomas (beginning on page 11 of the handout), OR [4] the dissenting opinion of Justice Breyer (beginning on page 16 of the handout).