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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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