Brown v. Entertainment Merchants Association

“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world).  That suffices to confer First Amendment protection.”

Justice Antonin Scalia
Brown v. Entertainment Merchants Association

On June 27th the Supreme Court decided a case in which Media Access Project (MAP) had filed an amicus curiae on behalf of NAMAC, Future of Music Coalition (FMC), and Fractured Atlas.  In Brown v. Entertainment Merchants Association, the Court strikes as unconstitutional California’s attempt to ban the sale of violent video games to minors.  

Blogs, email lists and publications we watch have been abuzz with conversation since this decision was announced.  (Dive deep into the topic with the Benton Foundation’s coverage)  Here’s a sample of what we’re hearing:
 

“As our brief explained, the case is about EVERY content creator's speech.  It is about independent video makers and musicians who no longer need labels to self-distribute and, unlike the big corporations, can't afford lawyers to decide if a particular work of art can be sold in California and, in the 6 other states that had similar - but not identical - laws and might have to be separately reviewed.  It is about writers, producers and directors who are increasingly distributing video "over the top," and who need assurance that they can distribute their own interpretations of Shakespeare, as well as of much less savory fare.  In short, this case matters more to the individual artists than it does to the big corporations.”

Andrew Jay Schwartzman, Senior Vice President and Policy Director
Media Access Project

“Brown struck down the video game law, relying on {United States v.} Stevens in refusing to create another new kind of unprotected speech, even as to minors. Broadcasters should be happy. The decision clearly implies that the FCC does NOT have the authority to regulate violent programming. The decision also leads me to conclude that, perhaps more importantly, the Court will side against the FCC in FCC v. Fox Television Stations, the indecency case it accepted on the same day Brown was decided.”

Kevin Goldberg, CommLaw Blog

“To me the real sticky issue is the mode of transmission, and whether the California law was vague enough to permit limitations on speech via broadband delivery. It seems reasonable that video games are already being transmitted in this fashion, and there is plenty of evidence that this trend will continue. What effect would an overly broad definition of "violent" have on other forms of expression in an era of direct-to-consumer online commerce?”

Casey Rae-Hunter, Deputy Director    
Future of Music Coalition

“Even though today’s opinion is about regulations prohibiting speech rather than regulations requiring speech, it’s likely that the carriers will be able to frame the {network neutrality} debate their way:  We’d like to speak, to use all of our pipes the way we want to, without restriction.  By forcing us to fairly carry speech with which we don’t want to be associated, you’re restricting our free use of our private communications medium.”

Susan Crawford,  Professor, Cardozo Law School and former Special Assistant to the President for Science, Technology, and Innovation Policy (2009)

It’s clear that this decision touches (or will eventually) upon all three areas of NAMAC’s policy focus.  As the Congress considers the FCC’s authority to regulate the Internet, the Corporation for Public Broadcasting explores funding for new technologies to increase community engagement, and the upcoming Supreme Court review of indecency enforcement, it seems that the Brown v. Entertainment Merchants Association will have an impact on our work for years to come.