Protecting Protected Speech: Violent Video Game Legislation Post-Brown v. Entertainment Merchants ASS’N

Violent video games have drawn the ire of parents and commentators alike ever since their inception two decades ago. Following several tragic school shootings in the late 1990s, legislators began exploring ways to limit childhood exposure to violent media. Since then, multiple states have tried their hand at regulating the sale of violent video games to minors. None of these attempts, however, survived the constitutional challenges levied against them in court by entertainment trade groups. Most recently, in 2011, the Supreme Court held that California’s attempt to legislate in this area was violative of the First Amendment. This Note argues that legislators should tread carefully in the wake of the Supreme Court’s unequivocal ruling. Rather than attempt to self-categorize what is or is not appropriate for children, they should instead mandate that video game developers and retailers participate in the ubiquitous Entertainment Software Rating Board rating system.