68 U. Miami L. Rev. 911 (2013-2014)
Avoiding the First Amendment's Crosshairs: Revisiting Precedents & Refining Arguments in Brown v. Entertainment Merchants Association

handle is hein.journals/umialr68 and id is 933 raw text is: Avoiding the First Amendment's Crosshairs:
Revisiting Precedents & Refining Arguments in
Brown v. Entertainment Merchants Association
DANIEL BUTLER*
I.  INTRODUCTION  ......................................................  911
II.  B ACKGROUND .......................................................  913
A. A Brief History of Video Games and the Law ........................  913
B. The Entertainment Software Ratings Board ..........................  917
C.  Senator Leland  Yee's Assembly Bill 1179  ............................  919
III. PROCEDURAL HISTORY OF BROWN v. ENTERTAINMENT MERCHANTS
A ssoCIATION ........................................................  922
A. The Pre-Enforcement Challenge, Standing, and the District Court
O p inion  ........................................................  922
B.  The  Ninth  Circuit Affirms  .........................................  928
IV.  THE  SUPREME  COURT  OPINIONS.........................................  928
A. Justice Antonin Scalia's Majority Opinion ........................... .929
B.  Justice  Alito's  Concurrence........................................  931
C.  Justice  Breyer's  Dissent...........................................  932
V.  ANALYSIS  &  CRITIQUE................................................  933
A. California's Reliance on Ginsberg was not Misguided, but a Slightly
Different Tactic May Have Been More Successful ..................... .934
B. The Alternative Strategy: Death by Technology ....................... .939
V I.  C ONCLUSION  ........................................................  940
I. INTRODUCTION
On June 27, 2011, the United States Supreme Court ruled, in the
case of Brown v. Entertainment Merchants Association, that the state of
California's attempt to restrict children's access to violent video games
violated the First Amendment's free speech clause. Three days later,
comedian Jon Stewart, known for his political commentary and satire,
attacked the decision on The Daily Show, Stewart's aptly named talk
show. After playing a clip from the video game Mortal Kombat, which
depicted two men holding a woman by each leg while unceremoniously
ripping her in half from groin to skull as her blood and organs splattered
onto the screen, Stewart explained to the disgusted audience that the
Supreme Court has ruled 7-2 that the state of California has no interest
in restricting the sale of this game to children. But, if while being disem-
* Member, University of Miami Law Review; J.D. Candidate 2014, University of Miami
School of Law; B.A., 2011, University of Michigan. A special thank you to Professor Elizabeth
Iglesias for her comments and insight in an earlier draft of this Note. I am also grateful to Jessica
Johnson and the University of Miami Law Review Editorial Board for their feedback during the
editing process.

911

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