Brown v. Entertainment Merchants Association/Opinion of the Court

delivered the opinion of the Court.

We consider whether a California law imposing restric­tions on violent video games comports with the First Amendment.

I
California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§1746–1746.5 (West 2009) (Act), prohibits the sale or rental of "violent video games" to minors, and requires their pack­ aging to be labeled "18." The Act covers games "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted" in a manner that "[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors," that is "patently offensive to prevailing standards in the community as to what is suitable for minors," and that "causes the game, as a whole, to lack serious literary, artis­tic, political, or scientific value for minors." §1746(d)(1)(A). Violation of the Act is punishable by a civil fine of up to $1,000. § 1746.3.

Respondents, representing the video-game and software industries, brought a preenforcement challenge to the Act in the United States District Court for the Northern District of California. That court concluded that the Act violated the First Amendment and permanently enjoined its enforce­ ment. Video Software Dealers Assn. v. Schwarzenegger, No. C–05–04188 RMW (2007), App. to Pet. for Cert. 39a. The Court of Appeals affirmed, Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950 (CA9 2009), and we granted certiorari, 559 U. S. 1092 (2010).

II
California correctly acknowledges that video games qual­ ify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public mat­ ters, but we have long recognized that it is difficult to distin­ guish politics from entertainment, and dangerous to try. "Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine." Winters v. New York, 333 U. S. 507, 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social mes- sages—through many familiar literary devices (such as char­ acters, dialogue, plot, and music) and through features dis­ tinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amend­ ment protection. Under our Constitution, "esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority." United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000). And whatever the challenges of applying the Consti­ tution to ever-advancing technology, "the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary" when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952).

The most basic of those principles is this: "[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 573 (2002) (internal quotation marks omitted). There are of course exceptions. "‘From 1791 to the pres­ ent,' . . . the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas,' and has never ‘include[d] a freedom to disregard these traditional limitations.' " United States v. Stevens, 559 U. S. 460, 468 (2010) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382–383 (1992)). These limited areas—such as obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), incitement, Branden­ burg v. Ohio, 395 U. S. 444, 447–449 (1969) (per curiam), and fighting words, Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)—represent "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional prob­ lem," id., at 571–572.

Last Term, in Stevens, we held that new categories of un­ protected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminal­ ize the creation, sale, or possession of certain depictions of animal cruelty. See 18 U. S. C. § 48 (amended 2010). The statute covered depictions "in which a living animal is inten­ tionally maimed, mutilated, tortured, wounded, or killed" if that harm to the animal was illegal where "the creation, sale, or possession t[ook] place," §48(c)(1). A saving clause largely borrowed from our obscenity jurisprudence, see Miller v. California, 413 U. S. 15, 24 (1973), exempted depic­ tions with "serious religious, political, scientific, educational, journalistic, historical, or artistic value," §48(b). We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty—though States have long had laws against committing it.

The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a "simple balancing test" that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. Stevens, 559 U. S., at 470. We emphatically rejected that "startling and dangerous" propo­ sition. Ibid. "Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law." Id., at 472. But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the "judgment [of] the American people," embodied in the First Amendment, "that the benefits of its restrictions on the Government outweigh the costs." Id., at 470.

That holding controls this case. As in Stevens, California has tried to make violent-speech regulation look like obscen­ ity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only de­ pictions of "sexual conduct," Miller, supra, at 24. See also Cohen v. California, 403 U. S. 15, 20 (1971); Roth, supra, at 487, and n. 20.

Stevens was not the first time we have encountered and rejected a State's attempt to shoehorn speech about violence into obscenity. In Winters, we considered a New York crim­ inal statute "forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the per­ son," 333 U. S., at 514. The New York Court of Appeals upheld the provision as a law against obscenity. "[T]here can be no more precise test of written indecency or obscen­ ity," it said, "than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analo­ gous injury to the public order. " Ibid. (internal quotation marks omitted). That is of course the same expansive view of governmental power to abridge the freedom of speech based on interest balancing that we rejected in Stevens. Our opinion in Winters, which concluded that the New York statute failed a heightened vagueness standard applicable to restrictions upon speech entitled to First Amendment pro­ tection, 333 U. S., at 517–519, made clear that violence is not part of the obscenity that the Constitution permits to be reg­ ulated. The speech reached by the statute contained "no indecency or obscenity in any sense heretofore known to the law." Id., at 519.

Because speech about violence is not obscene, it is of no consequence that California's statute mimics the New York statute regulating obscenity for minors that we upheld in Ginsberg v. New York, 390 U. S. 629 (1968). That case ap­ proved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child. We held that the legislature could "adjus[t] the definition of ob­ scenity ‘to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual inter­ ests . . . ' of . . . minors." Id., at 638 (quoting Mishkin v. New York, 383 U. S. 502, 509 (1966)). And because "obscenity is not protected expression," the New York statute could be sustained so long as the legislature's judgment that the pro­ scribed materials were harmful to children "was not irratio­ nal." 390 U. S., at 641.

The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults—and it is wise not to, since that is but a hair's breadth from the argument rejected in Stevens. In­ stead, it wishes to create a wholly new category of content- based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. "[M]inors are enti­ tled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected mate­ rials to them." Erznoznik v. Jacksonville, 422 U. S. 205, 212–213 (1975) (citation omitted). No doubt a State pos­ sesses legitimate power to protect children from harm, Gins­ berg, supra, at 640–641; Prince v. Massachusetts, 321 U. S. 158, 165 (1944), but that does not include a free-floating power to restrict the ideas to which children may be ex­posed. "Speech that is neither obscene as to youths nor sub­ ject to some other legitimate proscription cannot be sup­ pressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." Erznoznik, supra, at 213–214. ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents' consent. He cites no case, state or federal, support­ ing this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents' prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally with­ out their parents' prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents' prior consent. Our point is not, as believes, post, at 836, n. 2, merely that such laws are "undesirable." They are obviously an infringement upon the religious freedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over chil­ dren's speech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child's speech and religion ( cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as asserts, "circular," ibid. It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.

California's argument would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm's Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers "till she fell dead on the floor, a sad example of envy and jealousy." The Com­ plete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderel­ la's evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their cap­ tor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer's Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. 22 The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transls. 1909) ("Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crack­ led in the flame"). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187–189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding's Lord of the Flies recounts how a schoolboy called Piggy is savagely mur­ dered by other children while marooned on an island. W. Golding, Lord of the Flies 208–209 (1997 ed.).

This is not to say that minors' consumption of violent en­ tertainment has never encountered resistance. In the 1800's, dime novels depicting crime and "penny dreadfuls" (named for their price and content) were blamed in some quarters for juvenile delinquency. See Brief for Cato Insti­ tute as Amicus Curiae 6–7. When motion pictures came along, they became the villains instead. "The days when the police looked upon dime novels as the most dangerous of textbooks in the school for crime are drawing to a close. . . . They say that the moving picture machine . . . tends even more than did the dime novel to turn the thoughts of the easily influenced to paths which sometimes lead to prison." Moving Pictures as Helps to Crime, N. Y. Times, Feb. 21, 1909, quoted in Brief for Cato Institute 8. For a time, our Court did permit broad censorship of movies because of their capacity to be "used for evil," see Mutual Film Corp. v. In­ dustrial Comm'n of Ohio, 236 U. S. 230, 242 (1915), but we eventually reversed course, Joseph Burstyn, Inc., 343 U. S., at 502; see also Erznoznik, supra, at 212–214 (invalidating a drive-in movies restriction designed to protect children). Radio dramas were next, and then came comic books. Brief for Cato Institute 10–11. Many in the late 1940's and early 1950's blamed comic books for fostering a "preoccupation with violence and horror" among the young, leading to a ris­ ing juvenile crime rate. See Note, Regulation of Comic Books, 68 Harv. L. Rev. 489, 490 (1955). But efforts to convince Congress to restrict comic books failed. Brief for Comic Book Legal Defense Fund as Amicus Curiae 11–15. And, of course, after comic books came television and music lyrics.

California claims that video games present special prob­ lems because they are "interactive," in that the player par­ ticipates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. Cf. Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954, 957–958 (CA8 2003). As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. "[T]he better it is, the more interactive. Literature when it is suc­ cessful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own." American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001) (striking down a similar restriction on violent video games).

has done considerable independent re­ search to identify, see post, at 818–819, nn. 13–18, video games in which "the violence is astounding," post, at 818. "Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. . . . Blood gushes, splat­ ters, and pools." Ibid. recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression. And the same is true of 's description, post, at 819, of those video games he has discovered that have a racial or ethnic motive for their violence—"‘ethnic cleansing' [of] . . . African-Americans, Latinos, or Jews." To what end does he relate this? Does it somehow increase the "aggressiveness" that California wishes to suppress? Who knows? But it does arouse the reader's ire, and the reader's desire to put an end to this horrible message. Thus, ironically, 's argument highlights the precise danger posed by the California Act: that the ideas expressed by speech—whether it be violence, or gore, or racism—and not its objective ef­ fects, may be the real reason for governmental proscription.

III
Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demon­ strate that it passes strict scrutiny—that is, unless it is justi­ fied by a compelling government interest and is narrowly drawn to serve that interest. R. A. V., 505 U. S., at 395. The State must specifically identify an "actual problem" in need of solving, Playboy, 529 U. S., at 822–823, and the cur­ tailment of free speech must be actually necessary to the solution, see R. A. V., supra, at 395. That is a demanding standard. "It is rare that a regulation restricting speech because of its content will ever be permissible." Playboy, supra, at 818.

California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link be­ tween violent video games and harm to minors. Rather, re­ lying upon our decision in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), the State claims that it need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on compet­ ing psychological studies. But reliance on Turner Broad­ casting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. Id., at 661–662. California's burden is much higher, and because it bears the risk of uncertainty, see Playboy, supra, at 816–817, ambigu­ ous proof will not suffice.

The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been re­ jected by every court to consider them, and with good rea­ son: They do not prove that violent video games cause minors to act aggressively (which would at least be a begin­ ning). Instead, "[n]early all of the research is based on cor­ relation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.

Even taking for granted Dr. Anderson's conclusions that violent video games produce some effect on children's feel­ ings of aggression, those effects are both small and indistin­guishable from effects produced by other media. In his tes­ timony in a similar lawsuit, Dr. Anderson admitted that the "effect sizes" of children's exposure to violent video games are "about the same" as that produced by their exposure to violence on television. App. 1263. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated "E" (appropriate for all ages), id., at 1270, or even when they "vie[w] a picture of a gun," id., at 1315–1316. is mistaken in thinking that we fail to take account of "new and rapidly evolving technology," post, at 806. The studies in ques­ tion pertain to that new and rapidly evolving technology, and fail to show, with the degree of certitude that strict scrutiny requires, that this subject-matter restriction on speech is justified. Nor is correct in attributing to us the view that "violent video games really pre­ sent no serious problem." Ibid. Perhaps they do present a problem, and perhaps none of us would allow our own children to play them. But there are all sorts of "problems"—some of them surely more serious than this one—that cannot be addressed by governmental restriction of free expres­ sion: for example, the problem of encouraging anti-Semitism (National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam)), the problem of spreading a political philosophy hostile to the Constitution (Noto v. United States, 367 U. S. 290 (1961)), or the problem of encouraging disrespect for the Nation's flag (Texas v. Johnson, 491 U. S. 397 (1989)). would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 858–872 (appendixes to dissenting opinion) (listing competing academic articles discussing the harmfulness vel non of violent video games). The vast preponderance of this research is outside the record—and in any event we do not see how it could lead to 's conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post, at 853. Similarly, says he is not "sure" whether there are any constitutionally dispositive differences between video games and other media. Post, at 806. If that is so, then strict scrutiny plainly has not been satisfied.

Of course, California has (wisely) declined to restrict Sat­ urday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The conse­ quence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. See City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994); Florida Star v. B. J. F., 491 U. S. 524, 540 (1989). Here, California has singled out the purveyors of video games for disfavored treatment—at least when compared to booksellers, cartoonists, and movie producers—and has given no persuasive reason why.

The Act is also seriously underinclusive in another re­ spect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it's OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; ap­ parently the child's or putative parent's, aunt's, or uncle's say-so suffices. That is not how one addresses a serious so­ cial problem.

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that par­ ents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for convey­ ing protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that "only in relatively narrow and well-defined circumstances may government bar public dis­ semination of protected materials to [minors]." Erznoznik, 422 U. S., at 212–213.

But leaving that aside, California cannot show that the Act's restrictions meet a substantial need of parents who wish to restrict their children's access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the En­ tertainment Software Rating Board (ESRB), assigns age- specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). App. 86. The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from rent­ ing or selling adults-only games to minors; and to rent or sell "M" rated games to minors only with parental consent. Id., at 47. In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, "the video game industry outpaces the movie and music industries" in "(1) restrict­ ing target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children's access to mature-rated products at retail." FTC, Report to Congress, Marketing Violent En­ tertainment to Children 30 (Dec. 2009), online at http:// www.ftc.gov/os/2009/12/P994511violententertainment.pdf (as visited June 24, 2011, and available in Clerk of Court's case file) (FTC Report). This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned parents' control can hardly be a compelling state interest.

And finally, the Act's purported aid to parental authority is vastly overinclusive. Not all of the children who are for­ bidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation's effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to "assisting parents" that restriction of First Amendment rights requires.

California's effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to sup­ port the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them—concerns that may and doubt­ less do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a "well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem," Chaplinsky, 315 U. S., at 571–572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a com­ pelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on govern­ mental action apply.

California's legislation straddles the fence between (1) addressing a serious social problem and (2) helping con­ cerned parents control their children. Both ends are legiti­ mate, but when they affect First Amendment rights they must be pursued by means that are neither seriously under- inclusive nor seriously overinclusive. See Church of Lu­ kumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). As a means of protecting children from portrayals of vio­ lence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny. We affirm the judgment below.