John Roberts on Families & Children

Supreme Court Justice (nominated by Pres. George W. Bush 2005)

1st Amendment doesn't apply to vague restrictions.

Justice Roberts joined the concurrence on BROWN v. ENTERTAINMENT MERCHANTS on Jun 27, 2011:

A California law imposed $1000 civil fines on persons who sold or rented to minors "violent video games." The video game industry sued to prevent enforcement of the law.

HELD: Delivered by SCALIA; joined by KENNEDY, GINSBURG, SOTOMAYOR, and KAGAN

Video games are a form of speech and are subject to protection under the First Amendment because it has proved difficult to distinguish between politics and entertainment. Games communicate ideas through literary devices. A well defined constitutional tradition is that restrictions based on the content of speech are permitted only in only a few areas, such as obscenity, incitement to violence, or uttering fighting words. Depictions of violence are not within this tradition. California has not chosen to restrict those other media, e.g., Saturday morning cartoons, therefore California's law is underinclusive, suggesting that it disfavors a particular speaker or viewpoint.

CONCURRED: ALITO concurs in judgment; joined by ROBERTS

The California law should have been struck down on due process grounds as "vague": It lacked sufficiently narrow definition of "violent video game" so that a retailer would be put on notice. The Court should not have resorted to the First Amendment and should have been far more careful and moved with more deliberation in evaluating a new technology, since the future may find participating in a video game is actually different from watching movie.

DISSENT: THOMAS dissents

The Founders would not have seen any right to speak to a minor other than through his parents, which is what the California law permits.

DISSENT: BREYER dissents

The California law withstands other First Amendment's strict scrutiny. Source: Supreme Court case 11-BROWN argued on Nov 2, 2010

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