1. Note: This Sample has been edited to fit within the page limits
What if Player Two Left the Game: A look at restrictions against violent video games, the Brown
v. Entertainment Merchants Association Decision, and what is Left to the States Afterwards
I. Violent Videogames: Cause for Concern?
*****
It should come as no surprise then that several state legislatures have consequently attempted to
restrict violent videogames from reaching minors based on these concerns. One of these states,
California, passed a law prohibiting the sale of “violent” videogames to minors that would eventually
become the basis of a landmark case.1
In the words of Justice Scalia:
“[The act] prohibit[ed] the sale or rental of “violent video games” to minors, and require[ed] their
packaging to be labeled “18.” The Act cover[ed] 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 [were] “patently offensive to prevailing
standards in the community as to what is suitable for minors,” and that “caus[ed] the game, as a whole, to
lack serious literary, artistic, political, or scientific value for minors.”2
Parties representing the videogame and software industries brought a preenforcement challenge to the
restriction in the US District Court for the Northern District of California3
. Both the trial court and the
appellate court found that this restriction was unconstitutional based on the First Amendment, and the
Supreme Court granted certiorari.4
Their decision in that case, Brown v. Entertainment Merchants
Association would become the watershed case on content-based restrictions of violent videogames.
This writing examines that decision and its implications on states who desire to restrict or
regulate the distribution of “violent” videogames, and focuses particularly on the existence of the
Entertainment Software Ratings Board (ESRB) and its impact on the decision. Part II will specifically
examine the Brown decision, while part III will provide some background on the ESRB, its purpose,
and the rating system it uses. Part IV will look at some of the issues that remain in question, despite the
decision. Part V determines that, based on the decision, it is unlikely that a regulation on “violent”
videogames will ever survive strict scrutiny, nor will such a regulation be subjected to any lesser test.
In essence, part five determines that the videogame industry has “boxed out” the legislature from
passing this type of restrictive regulation.
II. Examining the Brown v. Merchants Entertainment Association Decision:
A. Case Background:
The first step in any examination of content-based restrictions on speech is determining
whether or not the statements at issue qualify as “speech”. If so, the court must then determine if the
speech in question is protected under the First Amendment or not. There are several categories of
speech that have been considered to be outside of the First Amendment, including “fighting words”,
obscenities, and others. The Brown court determined that videogames qualified for First Amendment
protection because the Court felt that “[video games] communicate ideas through familiar literary
devices and features distinctive to the medium” and “the basic principles of freedom of speech ... do
1
Cal. Civ. Code § 1746 (West).
2
Brown, 131 S. Ct. 2729, 2732-33, 180 L. Ed. 2d 708 (2011) (citations omitted).
3
id., at 2732.
4
id.

2. not vary” with a new and different communication medium[s].” 5
The Supreme Court then concluded
that the speech in question did not fall into any of the exceptions to constitutional protection, and
therefore was protected under the First Amendment.6
In an effort to side-step this constitutional protection, the State of California attempted to
convince the Court to create a new exception to the First Amendment that would permit content-based
restrictions of speech directed at minors. The Court was unpersuaded, however, and reiterated that
“new categories of unprotected speech may not be added to the list by a legislature that concludes
certain speech is too harmful to be tolerated.” Rather, the Court declared that no new exception to First
Amendment protection will be created “without persuasive evidence that [a restriction] on content
[was] part of a long (if heretofore unrecognized) tradition of proscription.”7
The Court consequently
determined that the states proposed exception, “depictions of violence aimed at children”, was not a
category of speech eligible to become a new exception to First Amendment protection because no
“longstanding tradition of specifically restricting children’s access to depictions of violence” existed.8
Because no exception to the First Amendment’s protection was applicable, and no new
exception could be created, the Court proceeded to the next step of First Amendment analysis and
examined the underlying reason behind the restriction. After determining that the restriction was
content based, the Court applied a strict scrutiny test.9
Under this test, restrictions based on the content
of the speech in question will only be considered constitutionally permissible when such restrictions
are “narrowly tailored” and in furtherance of a “compelling” state interest.10
The Brown court
explicitly stated that “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.”11
Eventually the court would determine that California could not meet this standard with their
proposed restriction, and therefore struck it down as unconstitutional.12
The restriction failed because it
was deficient in both aspects of the strict scrutiny test- it neither contained a sufficiently compelling
state interest nor was it narrowly tailored.13
B. Brown Court Determines Restriction Not Supported by Sufficiently Compelling
Interest:
The state had attempted to provide the compelling state interest required by arguing that the
videogames sought to be restricted by the statute were uniquely “interactive” and violent.14
California
was unsuccessful on both arguments, however. Specifically regarding “interactivity”, the Brown Court
stated that:
“The [interactive] 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. For the argument
that video games enable participation in the violent action, that seems to us more a matter of degree than
5
id. at 131 S.Ct. 2729, citing Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503.
6
id. at 2741 (citation omitted).
7
id. at 2734, (citing U.S. v. Stevens, 559 U.S. 460, 130 S.Ct. 1577).
8
id. at 2736.
9
id. at 2738, (citing R.A.V. v. St. Paul, 505 U.S. 377, 395, 112 S.Ct. 2538).
10
id.
11
id., (citing both United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, at 822–823, 120 S.Ct. 1878,
and R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, citations omitted).
12
id. at 2742.
13
id. at 2741.
14
id. at 2737.

3. of kind. As Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive.
Literature when it is successful 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.”15
Thus the Court essentially dismissed this “interactivity” argument by pointing out that other forms of
communication are also interactive, and that this so called “unique characteristic” is more of a
difference in the degree of interaction provided by each medium, as opposed to one form being
interactive and all other forms static. The Court addressed the degree of violence in some of the games
by highlighting the fact that this is exactly why California’s proscription on these types of games is
content based, and therefore subject to strict scrutiny.16
The Court also concluded that the restriction was not backed by a sufficiently compelling state
interest because the state could not show that the “act’s restrictions meet a substantial need of parents
who wish to restrict their children’s access to violent videogames but cannot do so.”17
The Court
reasoned that the “video-game industry has in place a voluntary rating system designed to inform
consumers about the content of games”, that [it] 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.” 18
In fact, “Filling the remaining modest gap in concerned-
parents' control can hardly be a compelling state interest.”19
In other words, California could not show
a compelling interest sufficient enough to uphold such a restriction on protected speech because the
ESRB’s voluntary actions had obviated the purpose of the restriction:
“The system, implemented by the Entertainment 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). The Video Software Dealers
Association encourages retailers to prominently display information about the ESRB system in their
stores; to refrain from renting or selling adults-only games to minors; and to rent or sell “M” rated games
to minors only with parental consent. 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)
restricting 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.”20
Thus, any parent concerned about this issue could easily determine if the game was appropriate
for their child and the types of games the state sought to restrict were already restricted from
being purchased by minors. Because the problem the statute sought to correct was addressed
through voluntary action, the Court found the state had no compelling interest in restricting
protected speech.
C. Brown Court Also Holds Restriction is Not Narrowly Tailored: It is Both Under and
Over-Inclusive:
California’s restriction was determined to be both under and over-inclusive. The Brown court
determined that the restriction on violent videogames was under-inclusive because it did not protect
15
id. at 2738 (citations omitted).
16
id.
17
id. at 2740.
18
id.
19
id.
20
id., citing FTC, Report to Congress, Marketing Violent Entertainment 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), (citation removed).

4. children from other, related forms of violence.21
While the state had introduced research of several
psychologists “whose studies purport to show a connection between exposure to violent video games
and harmful effects on children”22
the court also noted that the evidence was “Not compelling” and
that “These studies have been rejected by every court to consider them, and with good reason: They do
not prove that violent video games cause minors to act aggressively (which would at least be a
beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and
most of the studies suffer from significant, admitted flaws in methodology.”23
Perhaps more damning
for the state was that “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 … and
he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or
the Road Runner, or when they play video games like Sonic the Hedgehog that are rated “E”
(appropriate for all ages), or even when they “vie[w] a picture of a gun”.”24
In parallel with these
findings, the Court noted that speech including Saturday-Morning Cartoons, literature like Grimm’s
Fairy Tales, and other speech routinely consumed by children, are violent enough to fit within the
restrictions definition of “violent” videogames, and yet were not prohibited by the restriction.25
In fact,
many things our society generally considers acceptable for children are violent: Lord of the Flies, as
pointed out by the Court, actually has children killing other children, and yet is studied in schools
nationwide.26
According to the Court, if the statute seeks to protect children from depictions of
violence, as the State of California asserted, this restriction of “violent” content is under-inclusive
because it does apply to these equally violent examples of speech.27
The scientific evidence, in the eyes
of the court, did not show that video games as a medium have an effect distinct from other mediums,
such as books and film, but the state wanted to restrict only the video game medium.28
The court reasoned that this under-inclusiveness was a fatal error to the restriction in and of
itself,29
but the court also found the decision to be under-inclusive in one other aspect: “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; apparently the child's or putative
parent's, aunt's, or uncle's say-so suffices.”30
The court continued, stating “That is not how one
addresses a serious social problem.”31
The Brown opinion also noted that the statute was over-inclusive as well.32
California’s statute
applied to all “violent” videogames and all children, even though some of the parents the statute sough
to protect would not consider certain games violent, and other parents would not be concerned about
violent videogames whatsoever.33
This restriction would therefore violate the First Amendment rights
of children even when their guardians think of violent videogames as a “harmless pastime”.34
The
Court determined that because the restriction was aimed at protecting all children, even those whose
21
id. at 2740.
22
id. at 2739.
23
id.
24
id. (Citations Omitted).
25
id.
26
id. at 2737.
27
id. at 2740.
28
id.
29
id.
30
id.
31
id.
32
id.
33
id. at 2741.
34
id.

5. parents did not want its protection, the restriction was over-inclusive, and was “not the narrow tailoring
to “assisting parents” that restriction of First Amendment rights requires.”35
These under and over-
inclusivity issues caused the court to determine that California’s restriction was not narrowly tailored,
as required to pass a strict scrutiny test.36
Thus, the Brown court struck down California’s restriction on “violent” videogames for both
lack of a compelling state interest, and failing to be narrowly tailored. In order to understand the role
that the ESRB plays in the Brown court’s decision, and then examine how that decision would change
in that organization’s absence, we must understand the organization itself, which is dealt with in the
following section.
III. The ESRB: Origins, Rating System:
A. Background:
In the words of the organization itself, “The Entertainment Software Rating Board (ESRB)
is the non-profit, self-regulatory body that assigns ratings for video games and apps so parents
can make informed choices.”37
Created by a foundation comprised of videogame producing
companies38
, the ESRB “assigns ratings for video games and apps so parents can make
informed choices.”39
The organization utilizes a three part rating system, “that includes Rating
Categories to suggest age-appropriateness, Content Descriptors to indicate what type of content
may have triggered the rating and/or may be of interest or concern to the consumer, and
Interactive Elements, which advise about user interactions and the sharing of personal
information or location.”40
The ESRB does not have legal authority to implement or enforce
retailer sales policies with respect to games.41
Further, the ESRB appears to be a well-known
organization among consumers, as “according to an ESRB-commissioned survey conducted by
Peter D. Hart Research Associates in May/June 2012, 85% of parents with children who play
video games are aware of the rating system and 70% say they regularly check the rating before
buying computer and video games for their children.”42
B. The ESRB’s Rating System- How it Works and What it is Based On:
Though the rating process varies somewhat between “packaged or boxed video games” and
“digitally delivered games and apps”, essentially the publisher of the game self-reports certain
qualities and aspects of the game to the ESRB.43
The ESRB, through a panel of “at least three
trained raters” “collectively deliberate[s] about what rating should be assigned” and, after
determining and then finalizing a rating, “iss[ues that rating] to the publisher, which may either
accept it as final or revise the game's content and resubmit it to the ESRB.”44
As for what,
precisely, the ESRB considers, the organization states that:
“ESRB raters are trained to consider a wide range of pertinent content and other elements in assigning a
rating. Pertinent content is any content that accurately reflects both: the most extreme content of the final
35
id.
36
id.
37
About ESRB, ESRB, http://www.esrb.org/about/index.jsp (last visited Jan. 1, 2015).
38
ESRB History, ESRB, http://www.esrb.org/about/chronology.jsp (last visited Jan. 1, 2015).
39
About ESRB, ESRB, http://www.esrb.org/about/index.jsp (last visited Jan. 1, 2015).
40
id.
41
Enforcement, ESRB Ratings, ESRB, http://www.esrb.org/ratings/enforcement.jsp (last visited Jan. 1, 2015).
42
id.
43
ESRB Rating Process, ESRB Ratings, ESRB, http://www.esrb.org/search/ratings/ratings_process.jsp (last visited
Jan. 1, 2015).
44
id.

6. product - in terms of relevant rating criteria such as violence, language, sexuality, gambling, and
alcohol, tobacco and drug reference or use; and the final product as a whole - demonstrating the game’s
context (such as setting, storyline and objectives) and relative frequency of extreme content. Given the
interactive nature of video games the ESRB rating system also takes into account certain unique
elements, such as the viewer's perspective, reward system and the degree of player control.” 45
The rating categories a game may fall into range from “Ec”, which indicates the game is
appropriate for young children, to “AO”, which indicates that the game is suitable only for
those 18 and older.46
This is a broad category that does not provide information specific to the
game itself. This category is then combined with short summarizations of potentially
questionable contents, termed “content descriptors”.47
These include “Blood and Gore”, “Crude
Humor” and “Use of Tobacco” among many others.48
Lastly, certain “interactive elements” are
included as a final piece of the rating system.49
These descriptors indicate that the game may
share particular information, allow users to interact with each other, or even that the game may
share the location of the user with others.50
C. The Purpose of the ESRB and Similar Entities
The function of the ESRB is to help parents and consumers make informed choices as to the
content of the games they wish to purchase. By doing so, they effectively eliminate any
compelling interest the state may have in assisting parents in this area through some sort of
legal restriction. In this way, the industry protects itself from federal regulation, as discussed
later in this writing.
But it should be noted that the videogame industry is not the first form of media to
implement such a system. In 1968 the MPAA created its current rating system in an effort to
avoid federal regulations.51
The MPAA utilizes a comparable, although older and somewhat
less detailed rating system as the ESRB. Films are placed in rating categories that mirror the
ESRB’s, such as G, PG-13, and R (similar to E, T, and M) and are also followed by similar
content descriptors. Further the MPAA is comprised of film producers and acts a self-
regulatory ratings system for created by and for the industry, just as the ESRB.
It is likely that the ESRB is somewhat modeled after the MPAA, as Congress, through
inaction, has allowed and in essence promoted this form of self-regulation. By not enacting
regulations and restrictions on film after the creation of the MPAA, congress effectively
promoted this self-regulation option as a viable route to avoid federal regulation. In essence, it
appears that a de facto public policy decision has been made: it is preferable to have self-
regulatory systems aimed at informing consumers of potentially questionable content, as
opposed to restrictions on First Amendment protections on speech, or the creation of a new
exception to the First Amendment itself. The video game industry is not the only form of media
to follow this self-regulation path: The music industry’s application of “Explicit Content”
labels is an example of the same activity.
IV. Remaining Issues:
45
id.
46
ESRB Ratings Guide, ESRB Ratings, ESRB, http://www.esrb.org/ratings/ratings_guide.jsp (last visited Jan. 1,
2015).
47
id.
48
id.
49
id.
50
id.
51
Censorship, US Legal, http://entertainmentlaw.uslegal.com/censorship/ (Last visited Jan. 1, 2015).

7. This section examines several issues left unresolved in the Brown decision, including if it
would be possible for a state to demonstrate a compelling interest if the ESRB was not engaging in its
current self-restricting and labeling practices, whether a restriction on “violent” videogames could ever
be considered narrowly tailored, and if a state could ever avoid strict scrutiny. Ultimately, it would
seem that a state would likely be unable to demonstrate a compelling state interest, that it would be
difficult, but not impossible for a restriction to be narrowly tailored, and that it would be unlikely that a
state could avoid strict scrutiny.
A. In the Absence of the ESRB, Could a State Demonstrate a Compelling Interest?
If the ESRB decided to no longer engage in this self-restricting behavior, would the state be
able to meet strict scrutiny by addressing a “substantial need of parents who wish to restrict their
children’s access to violent video games but cannot do so?” The “modest gap in concerned parents’
control” that “could hardly be a compelling state interest” would not be so modest anymore without the
actions of the ESRB, as there would be no entity providing information to consumers concerning game
content, and no restriction on sales of any type of game to minors, outside of the separate policies of
retailers and parental oversight. After examining this case however, it seems apparent that, at least in
California’s iteration of the restriction, such a restriction would still be constitutionally impermissible
because of the inability of the State to demonstrate a sufficiently compelling state interest, as well as
the under-inclusive and over-inclusive issues which are not changed by the absence of the ESRB.
It should be noted that the interest California attempted to advance with this restriction, the
protection of children, has often been found to be a compelling state interest by the courts.52
Considering these cases, and assuming that the ESRB no longer engaged in its current voluntary
restrictions, it is conceivable that the Court would find the protection of children to be a sufficiently
compelling interest for a similar restriction on violent video games.
However, in the words of the Merchants court, although there is “No doubt a State possesses
legitimate power to protect children from harm”, “[that power] does not include a free-floating power
to restrict the ideas to which children may be exposed.”53
Quite the contrary, “Speech that is neither
obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to
protect the young from ideas or images that a legislative body thinks unsuitable for them.”54
These
statements indicate that something more than merely the judgment of a legislature that certain material
should be kept from children will be required for a constitutional restriction to withstand scrutiny.
Consequently, it seems unlikely that simply protecting children would be considered a sufficient
justification for a restriction on violent speech simply because that speech is violent. It should be
noted, however, that if proponents of such restrictions were ever able to distinguish video games from
other mediums, as the State of California attempted to do in Merchants, it would change the
compelling state interest analysis: in addition to eliminating the under-inclusivity problems,55
strong
scientific data indicating potential harm to children (and thereby differentiating the video game
medium from others) may push the states interest to “Compelling Interest” levels.
52
See Ginsberg v. State of New York, 390 U.S. 640-641, 88 S.Ct. 1274 (1968); Prince v. Massachusetts, 321 U.S.
158, 165, 64 S.Ct. 438 (1944).
53
Brown v. Entm't Merchants Ass'n, 131 S. Ct. 2729, 2736, 180 L. Ed. 2d 708 (2011).
54
id., (citing Erznoznik v. Jacksonville, 422 U.S. 205, 213–214, 95 S.Ct. 2268).
55
If scientific research was able to distinguish video games as a particularly harmful medium in some way distinct
from other mediums, there would be a reason to treat video games separately and thus the restriction would not be under-
inclusive by not applying to other forms.

8. Further, the Supreme Court indicated in Brown that the state would have to demonstrate an
“actual problem” and that the states restrictions is “actually necessary” in order to solve that problem.56
The state must not merely claim that they have a compelling interest, but must “demonstrate that the
recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms
in a direct and material way.”57
But even more than this, it is highly unlikely that a state can
demonstrate any solution that is “actually necessary” and not over or under-inclusive. As another
commenter, Dunkelberger, has pointed out, this “actual problem, actually necessary” standard will
essentially require the proponents of the restriction to show proof of direct harm to minors,58
something that will be difficult given the “nuances of child psychology.”59
To further compound issues
for proponents of these restrictions, Dunkelberger also points out that the bench has been reluctant to
accept the scientific reports that many would have the court consider “actual problems”,60
as
accurate61
. Consequently there is serious doubt as to whether the state’s interest in cases such as this
would be sufficiently compelling to survive the application of a strict scrutiny test, particularly
considering that there is no history of protecting children from depictions of violence in this country,
as mentioned above and discussed below.
B. Could a Restriction on “Violent” Videogames Ever be “Narrowly Tailored”?
One of the major issues in Merchants was that the restriction California attempted to put
forward was not narrowly tailored. This section examines if it is possible to have a restriction on
violent videogames that could meet this requirement of strict scrutiny (not be considered over or
under-inclusive).
When looking at the under-inclusive aspect of the “narrowly tailored” requirement in light of
the previous discussion centering on the under-inclusivity of the Merchants restriction, it quickly
becomes apparent that any restriction will have to do one of two things to avoid being under-inclusive:
the restriction must either be universally applicable to all media (film, literature, music, etc.) or the
proponents of the restriction must be able to somehow distinguish the video games medium, as
discussed above. It is, however, difficult to conceive of a scenario in which a blanket restriction on
violence (such as the first option) would ever have a sufficiently compelling state interest to justify the
restriction, considering how broad the restriction would be. Because of the near impossibility of a
blanket restriction on violence, proponents of these restrictions on violent videogames are essentially
required to distinguish the medium if they wish to avoid the under-inclusive problem. However, as
discussed above, this too is unlikely, as the primary reasoning for doing so (interactivity) was shot
down by the court in Brown.
The other aspect of the “narrowly tailored” test, over-inclusivity, has created many problems
for proponents of restrictions on violent videogames as well.62
Restrictions will encounter similar
56
Brown, 131 S.Ct. at 2738.
57
Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) aff'd sub nom. Brown v. Entm't
Merchants Ass'n, 131 S. Ct. 2729, 180 L. Ed. 2d 708 (2011), (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664
(1994) (plurality opinion)) (internal quotation marks omitted).
58
James Dunkelberger, The New Resident Evil? State Regulation of Violent Video Games and the First
Amendment, 2011 B.Y.U. L. Rev. 1659, 1684 (2011).
59
id.
60
See, e.g., Entm't Merchs. Ass'n v. Henry, No. CIV-06-675-C, 2007 WL 2743097, at *6 (W.D. Okla. Sept. 17,
2007) (“There is no support in the record, let alone ‘substantial evidence,’ for Defendants' conclusion that allowing
dissemination of violent video games to minors is harmful to those minors or any others.”) (quoting Video Software
Dealers Ass'n v. Maleng, 325 F. Supp. 2d 1180, 1187 (W.D. Wash. 2004)).
61
Dunkelberger, at 1684.
62
See, e.g., Entm't Software Ass'n v. Blagojevich, 469 F.3d 641, 650 (7th Cir. 2006).

9. problems to that in Merchants, as discussed previously. Another case dealing with a content-based
restriction on protected speech provides valuable insight into how a court may engage in an over-
inclusivity analysis.63
In Erznoznik the court dealt with a restriction on nudity in film.64
The court
would eventually determine that the restriction was over-inclusive because it was not limited to
sexually explicit nudity, and therefore restricted constitutionally permissible expression.65
Consequently, any restriction would have to take extra care to avoid infringing on protected
expression, which may include, in this circumstance, less intense depictions of violence, games with a
lower frequency of violent behavior, or perhaps less “serious” depictions of violence, such as cartoon
violence. In addition to avoiding protected expression, it would be imperative that the restriction avoid
application to all persons, as this was one of the reasons the Merchants court found California’s
regulation too broad.66
It would be difficult, but not necessarily impossible to craft a statute that would
address the concerns regarding violent videogames and yet also avoid incidentally restricting protected
expression. Some possible examples include a restriction that operated in such a way as to exempt
children whose parents have no issue with them having access to violent video games through an opt-
out clause, or a statute forcing publishers to display certain indicators of particular content in a game,
including violence.
Avoiding under and over-inclusivity concerns are not the only hurdle before the proponents of
restrictions on violent videogames, however. The Court has stated that the burden to show that any
proposed restriction is the least restrictive means to meeting their goal- i.e. protecting children in the
Brown statute, lies with the state itself. As Dunkelberger states “Essentially, this prong of the strict
scrutiny analysis requires that a statute be narrowly tailored to address the alleged psychological harm
to minors caused by violent video games. For a regulation to survive, regulators must demonstrate
“why less restrictive means would not forward [their regulatory] interests.” Thus, a state may not focus
merely on the “most effective” means of combating the regulated evil. Because courts have easily
hypothesized a number of less restrictive regulatory methods, they have been universally
unsympathetic to state regulatory attempts.”67
Although such restrictions may be technically feasible, thus far “courts have broadly rejected
states' proposed solutions”68
for both under and over-inclusivity issues, and for “failing to adequately
address the precise problems that serve as the state’s rationale.”69
This indicates that, practically
speaking, it may not be possible to create a restriction that has a compelling state interest and is
narrowly tailored, as required.
C. Could a State Get Around Strict Scrutiny?
The court has clearly ruled that interactivity will not cause videogames to be considered an
exception to first amendment protection.70
Unless the court changes its stance on this issue, video
games will remain protected speech. There are very few restrictions on protected speech that manage
to avoid the “content-based” strict scrutiny test and also attempt to achieve some of the same goals as
the restriction in the Merchants decision. In order to avoid being subjected to the strict scrutiny test,
63
Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S. Ct. 2268, 45 L. Ed. 2d 125 (1975).
64
id.
65
id.
66
Brown, 131 S.Ct. at 2740. (The court found the restriction overbroad because it made no exception for children
whose parents had no issue with them playing violent video games, as previously discussed).
67
Dunkelberger at 1668, (some of those less restrictive regulatory methods include performing labeling type
functions such as the ESRB does).
68
id.
69
id.
70
Brown, 131 S.Ct. at 2737-2738.

10. one would have to adjust the focus of the restriction from curtailing the distribution of the speech.
Instead, legislatures would have focus proposed regulations on assisting parents in making informed
decisions on the speech they allow their children to consume. Further, any such restriction would have
to be applied universally, to all videogames, not just ones that the legislature deemed “violent”. For
example, restrictions forcing the manufacturers to put de facto warning labels on games, content
descriptors, and maintaining an online database of game ratings and content are examples of content-
neutral paths a legislature may be able to take without running afoul of the First Amendment. These
potential remedies are neither under-inclusive, nor over-inclusive, and are not a considerable burden on
speech in the sense that the speech at issue is restricted in any content-based way. It should be noted,
however that this is essentially exactly what the ESRB is currently engaged in. Courts may be
unwilling to consider the state interest in this type of restriction sufficient enough to justify these laws,
even without the application of strict scrutiny.
The primary issue with more “active” alternatives to these options is that they will likely be
considered content-based restrictions on protected speech. Restrictions such as limiting advertisement
to certain times and places (in a manner similar to tobacco laws), and licensing schemes allowing only
certain stores to sell “violent” videogames are still content-based restrictions. This content-based
determination ensures application of the strict scrutiny test, which, as seen above, will be very difficult
for legislation to overcome.
V. No More Room for Regulation
Based on these arguments from the Court, it would appear that restrictions based on content
appearing in other mediums of communication but applied only to the videogame medium will be
struck down as under-inclusive. Further, any restrictions that do not deal with parents who are not
concerned with videogames are likely to be considered over-inclusive, as previously discussed.
Although strict scrutiny is a very stringent, hard-to-survive standard, it may be all that is left to the
legislatures. The videogame industry appears to have essentially boxed-out legislatures from imposing
restrictive legislation upon it by voluntarily restricting itself in the few ways that would likely be
constitutionally permissible for a state to engage in. This is an approach that has been utilized by other
forms of media, including film and music since at least 1968 in order to avoid federal regulation. As
we have seen, this prevents states from being able to demonstrate the compelling state interest required
by strict scrutiny, and leaves only content-based regulations that are sure to be met with strict scrutiny
tests. It would seem the videogame industry has beaten legislatures to the punch and already claimed
whatever room existed for legislative restrictions.
If strict scrutiny is applied, it appears unlikely that a state will have a sufficiently compelling
state interest to justify a content based regulation so long as the videogame industry continues its self-
restriction. The only avenue a state may have would be contingent upon the Court changing its mind
and deciding that “filling the remaining modest gap in concerned-parents' control” is now a compelling
state interest, when it could “hardly be considered a compelling state interest” just three years ago.
Even if the Court were willing to do this, a restriction would still have to navigate the under-
inclusiveness and over-inclusiveness issues discussed above, unless the court were to distinguish video
games as a medium, something it has shown it is reluctant to do. Ultimately, it seems doubtful that a
state could pass a constitutionally permissible restriction in this area given the current state of the law
and the industry.