New York University Public Law and Legal Theory Working Papers

Document Type



41 HASTINGS CONST. L. Q. 707 (2014)


This Article closely examines the 2011 Supreme Court decision in Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011), which held that California’s effort to restrict children’s access to violent video games violated the First Amendment. The Article will show that the Supreme Court widely missed the mark in applying well-established First Amendment law to strike down California’s effort to limit a minor’s access to material reasonably deemed inappropriate by parents. The Court’s principal error was to mischaracterize the statute as a ban on the distribution of material deemed inappropriate by the Legislature. This allowed it to announce simplistically that the case was controlled by United States v. Stevens, 559 U.S. 460 (2010) which rejected “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment,” 559 U.S. at 472, in declaring unconstitutional a federal statute that made it a crime to possess a depiction of animal cruelty if done “for commercial gain.”

Brown contains numerous flaws. If taken literally, it would broadly expand children’s First Amendment rights. But Brown is not really about children’s rights, it is more about allowing a wealthy corporate enterprise – the violent video industry, to continue sales to an important constituency, young males. In this Article, I demonstrate the many flaws in the majority’s opinion, including the irony that Justice Scalia gets to become a champion of children’s rights (for an extreme change). But my greatest criticism of Brown is the extent to which the Court ignores, even mocks, the plight of conservative parents who struggle with ways to keep material from their children that American law insists may not be generally banned but that reasonable parents may believe is nonetheless inappropriate for their children. I ultimately argue that a well-worded law (which the California statute was not) should be upheld as constitutional if its purpose was merely to prevent children from purchasing certain material themselves, without making it unlawful for children to have access to the materials with their parents’ permission (in much the same way minors currently may not access movie theatres).

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