Because Cal. Civ. Code §§ 1746-1746.5 (2009) imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny--that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an "actual problem" in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. It is rare that a regulation restricting speech because of its content will ever be permissible.
The State of California passed California Assembly Bill 1179 (Act), which prohibited the sale or rental of “violent video games” to minors. This included games which included and depicted killing, maiming, dismembering, or sexually assaulting an image of a human being. The Act also required the packaging of the video games to be labeled “18.” Respondents, Entertainment Merchants Association, filed a pre-enforcement action against the Governor of California, claiming that the statute violated the First Amendment to the U.S. Constitution. The U.S. District Court for the Northern District of California enjoined California authorities from enforcing the statute, and on appeal, the U.S. Court of Appeals for the Ninth Circuit affirmed. Petitioner, the Governor of California, sought review by the U.S. Supreme Court.
Was California Assembly Bill 1179 violative of the First Amendment to the U.S. Constitution?
The Supreme Court found that the statute violated the First Amendment. According to the Court, video games were a protected means of expression under the First Amendment, thus, statute in question violated First Amendment protections because it was both under-inclusive and over-inclusive. The Court determined that the statute was seriously under-inclusive because it did not preclude minors from having access to information about violence in other forms, only in video games. Furthermore, the Court held that it was seriously over-inclusive because it abridged the First Amendment rights of young people whose parents (and aunts and uncles) thought that violent video games were a harmless pastime. In conclusion, the Court ruled that the statute did not survive a strict scrutiny analysis.