ENTERTAINING DOUBTS:BROWN v. ENTERTAINMENT MERCHANTS ASSOCIATION’S STABILITY AS PRECEDENT

Brown v Entertainment Merchants Association marked the first time the Supreme Court decided a video game case. Striking down a California statute that bans the sale or rental of violent video games to children, the Court made it clear that violent content, even if the intended audience is children, does not lie outside First Amendment protection. Moreover, the Court declared that video games were no different in kind than other forms of media such as books and movies. This Article argues that while Brown initially appears to be a triumphant and complete victory for the video game industry, its stability as precedent is not certain. Weaknesses in the majority’s reasoning, as well as inevitable advances in the technological sophistication of games and the development of empirical evidence (on the relationship between violent games and harm to children) all pose risks to the lasting hold of Brown. In light of these factors, the video game industry should consider taking steps to strengthen their self-regulatory framework.