Sex Is Too Obscene for Kids, but Violence Isn't? Brown v. Entertainment Merchants

Should entertainment merchants make child protection decisions?

Posted Jun 27, 2011

Supreme Court Case
Today it is anticipated that the Supreme Court will rule on the case known as Brown v. Entertainment Merchants Association. In this case, game merchants say they should be able to sell the most extreme violent video games to minors. While it's illegal for children to purchase to so-called "adult" movies, if the merchants get their way, no violent video game content would be considered as going too far to be safe for children.

A dozen of my colleagues and I authored an amicus brief to the Supreme Court, substantiating our view that violent video games can cause harm. Known as the Gruel Brief, we submitted a statement on video game violence "authored by thirteen of the most recognized media violence experts in the United States, Germany, and Japan, and endorsed by 102 additional researchers." 1

Why are child protection laws necessary?
An important question to consider in light of today's anticipated decision is this: Why do we make laws that restrict the sale of some things to kids that are legal to sell to adults? Why don't we let kids buy liquor, guns and ammo, for instance? Why don't we let kids go to X-rated movies or buy cigarettes, when adults can?

I think the reason is that children are vulnerable and, by definition, immature. They haven't fully learned to make decisions that are healthy for them. And, by extension, we've decided as a culture on a group of things that are unhealthy for children. These include alcohol, tobacco and X-rated movies.

The law in question (originally known as Schwarzenegger v. Entertainment Merchants Association) was challenged before it went into effect, the court ruling "that there is no violence-based notion of obscenity. Therefore, violence-no matter how morbid or graphic-is fully protected speech..."2

Violence as Obscenity
This is the idea I would like to draw your attention to today. I'd like you to think about whether it is a good idea to protect kids from explicit sex but not explicit violence. What it comes down to is this: is there any level of violence that you would consider obscene? Is there any level of violence that you would consider inappropriate for children?

For me, the answer to those questions is easy. The answer is yes. If you cannot imagine a violent video game that is too extreme to sell to children, I refer you to my earlier post about the game RapeLay - a game that glorifies the crime of rape as well as psychological torture. This is an extreme example and I use it because the topic of the day is whether or not there is violent video game content that is too extreme to be healthy for children.
It's relevant to this case that the entertainment industry has been allowed to police itself. This is true for the film industry (an exploration of this, see Kirby Dick's documentary This Film is Net Yet Rated at It is also true for the video game industry, which rates its own games.

Allowing Merchants to Make Child Protection Decisions
Businesses, as entities, exist for the purpose of making profits. (For a great film treatment of the subject, see The Corporation at Therefore, it is unsurprising that the merchants are arguing for their right to sell controversial and potentially harmful content to children. In other words, you can't expect a business to act in a way that puts ethics before profits because of the nature of the structure of motives in business. So, who protects children? It is one function of government to protect children by providing an environment that fosters health and deters harm.

Business and government then can be at odds since their motives are at odds. This situation is further complicated when businesses attempt to use their considerable resources to make changes in governmental regulations. By allowing business to influence government regulations, even those involving harm to children, we pit the power of money against the desire to create a safer environment for American children.

What our Laws Say About our Values
Think for a minute about the reputation of Americans through the eyes of the International community? We have a reputation of being violent, but sexually repressed compared to many European countries, for instance. This is reflected in this notion that we should protect children from exposure to sex but not violence. When it was discovered that one version of Grand Theft Auto contained scenes involving oral sex, the game was removed from shelves. It was not removed because it contained violent scenes that could be argued were equally graphic.

I want us to realize and think about these judgments we are making as a culture. We have to be aware of the double standard in the rules we're playing by: there's such a thing as too sexy for children, but no such thing as too violent for children. Personally, I think there is a level of violence that could be called obscenity. We can't claim there's reason that sex in the media is damaging, while simultaneously arguing that violence in the media could not possibly cause harm.

Update 1

It was just announced that the California ban on selling violent games to children was rejected. As CNN reports, "The 7-2 ruling is a victory for video game makers and sellers." (

Update 2
Later in the week, the Daily Show's Jon Stewart questioned the Supreme Court decision saying,
"I have kids. I love video games. But I still think there is a certain limit to...I mean, once you start disemboweling your Mortal Kombat opponent...I would think a 10 year old should have to not be able to buy that."

And, in the segment that preceeded that statement, pointed out the irony of kids being restricted from sexual content, but not from grotesque and extreme violent content.

Appendix A - Press Release
For Immediate Release:
Contact: Adam J. Keigwin,
June 27, 2011
&nbsp ;
(916) 651-4008, (916) 256-5758

U.S. Supreme Court Puts Corporate Interests Before Protecting Kids
Yee Praise Justice Breyer for dissenting opinion; not surprised that Justice Scalia, others put corporate America first

SAN FRANCISCO - Using the strict scrutiny standard of the First Amendment, today the Supreme Court of the United States struck down California's law to prevent the sale and rental of excessively violent video games to children. While the decision was 7-2, only five justices (Scalia, Kennedy, Ginsburg, Sotomayor, Kagan) believed video games should be off limits to regulation, while two justices (Roberts, Alito) thought a law could be more narrowly tailored and two justices (Breyer, Thomas) believe California's law was in fact constitutional.

"Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children," said the law's author, Senator Leland Yee (D-San Francisco). "As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids' mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children."

Yee also praised Justice Stephen Breyer, one of the more liberal justices on the Court and a San Francisco resident, who wrote the dissenting opinion.

"Justice Breyer, in his dissenting opinion, clearly understood the need to protect our children from the harmful effects of excessively violent video games and to give parents a tool in raising healthy kids," said Yee.

"Applying traditional First Amendment analysis, I would uphold the statute as constitutional on its face and would consequently reject the industries' facial challenge," wrote Breyer. "California's law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a provided a parent is willing to help. All it prevents is a child or adolescent from buying, without a parent's assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17."

Breyer continue, "The interest that California advances in support of the statute is compelling. Extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life. And video games can cause more harm in this respect than typically passive media, such as books or films or television programs. I can find no ‘less restrictive' alternative to California's law that would be ‘at least as effective.'"

Breyer concluded his dissenting opinion with, "This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in securing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children - by their parents, by their teachers, and by the people acting democratically tough their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here - a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children. For these reasons, I respectfully dissent."

"While we did not win today, I am certain that this eight year legislative and legal battle has raised the consciousness of this issue for many parents and grandparents, and has forced the video game industry to do a better job at appropriately rating these games," said Yee.

In 2005, the Legislature passed and the Governor signed the law - Assembly Bill 1179 - to prevent the sale and rental of violent video games that depict serious injury to human beings in a manner that is especially heinous, atrocious, or cruel, to persons who are under 18 years of age. Retailers who violated the Act would have been liable in an amount up to $1,000 for each violation.

"Every major national medical association - including the American Psychological Association, American Psychiatric Association, and the American Academy of Pediatrics - has concluded that exposure to violent video games causes an increase in aggressive behavior, physiological desensitization to violence, and decrease pro-social behavior," said Yee. "Thus, society has a direct, rational and compelling reason in marginally restricting a minor's access to violent video games."

In supporting California's video game law, eleven other states - Connecticut, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Texas, and Virginia -submitted an amicus brief in support of California's law. In addition, Yee's effort has been supported by leading medical associations, civil rights organizations, child advocates, women's rights groups, and law enforcement, among others.

References and Suggested Readings:
1Sachs, D. P., Bushman, B. J., & Anderson, C. A. (2011). Do violent video games harm children? Comparing the scientific amicus curiae "experts" in Schwarzenegger v. Entertainment Merchants Association. Available from:, p. 3.
2Sachs, Bushman & Anderson (2011), p. 6.

References and Suggested Readings:

1Sachs, D. P., Bushman, B. J., & Anderson, C. A. (2011). Do violent video games harm children? Comparing the scientific amicus curiae "experts" in Schwarzenegger v. Entertainment Merchants Association. Available from:, p. 3.

2Sachs, Bushman & Anderson (2011), p. 6.