Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011), was a landmark decision of the US Supreme Court that struck down a 2005 California law banning the sale of certain violent video games to children without parental supervision.

Several of the Court's justices suggested that the issue might need to be re-examined in the future, considering the changing nature of video games and their continuously improving technology.

[5][6][7] Incidents such as the Columbine High School massacre in 1999 have heightened concerns of a potential connection between video games and violent actions.

[8][9] Accordingly, many concerned groups including politicians and parents have sought to enact regulatory controls of video games to prevent their sales to youth.

[1] Prior and during the Brown v. EMA case, parties like the Entertainment Software Association (ESA) sought to overturn similar state laws that placed limits on the sales of violent video games to minors in Michigan[10] and Illinois.

[12] The ESA similarly defeated a Louisiana bill in the 2006 Entertainment Software Association v. Foti case that would have attempted to ban sales of violent video games to minors.

To counteract these increasing complaints and attempts at legislation, the video game industry in the United States created the Entertainment Software Rating Board (ESRB) in 1994.

[14] Attempts have been made to mandate the ratings system; the Family Entertainment Protection Act, a 2005 bill introduced into the U.S. Congress by Senators Hillary Clinton, Joseph Lieberman, and Evan Bayh, would have made ESRB participation mandatory with oversight by the Federal Trade Commission, and introduced fines for selling Mature or Adult-Only content to minors.

Though the ESRB met criticism in 2000–2005 for the ease of access of mature-rated games to minors, the Board has improved its efforts to enforce the ratings system at retailers.

A 2011 report issued by the Federal Trade Commission found that the voluntary controls by the ESRB had the highest success rate of any media industry, preventing sales of mature titles to minors 87% of the time.

[22] The two groups succeeded in obtaining a preliminary injunction in December 2005 to block enforcement of the law during the case; U.S. District Judge Ronald M. Whyte cited in his preliminary decision: "The plaintiffs have shown at least that serious questions are raised concerning the States' ability to restrict minors' First Amendment rights in connection with exposure to violent video games, including the question of whether there is a causal connection between access to such games and psychological or other harm to children.

[39][40] The Entertainment Consumers Association (ECA) launched an online petition[41] along with their amicus brief to provide the Supreme Court additional information.

[48] Also submitting an amicus brief opposing the law was a coalition of 82 psychologists, criminologists, medical scientists and media researchers concerned that the State of California had misrepresented the science on video games.

To California's attorney, the Justices voiced concern on the distinction between video games and other commercial works such as films and comic books.

[39] Several questions centered on the controversial game Postal 2, where the player can urinate on non-player characters and set them ablaze, among other violent acts.

[51] The Justices, in general, agreed that upholding California's law would require a "novel extension of First Amendment principles to expressions concerning violence".

[53] The decision pointed to fairy tales like those of the Brothers Grimm, which are regularly given to children to read, "contain no shortage of gore" that are also present in video games.

[54] The decision further compared video games to classical works like The Divine Comedy, stating that "Even if we can see in them nothing of any possible value to society ..., they are as much entitled to the protection of free speech as the best of literature.

[57] The decision cited one medical report that asserted that cartoons like Looney Tunes generate the same effects in children as in games like Sonic the Hedgehog or imagery of guns.

[58] Alito wrote that he was unsure that there was no connection between violent video games and effects on children, stating that "There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show", referencing the book Infinite Reality which highlights the psychological effects of virtual reality, and argued that the decision "would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem".

He contrasted the previous findings regulating sales of publications containing nudity to those of violent video games: "But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13 year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?

"[60][61] Breyer also expressed concern that the self-regulation of the industry still allowed for 20% of minors to purchase mature video games on a national average, and as high as 50% in the case of one nationwide chain, based on the aforementioned 2011 Federal Trade Commission study.

ESA's CEO, Michael Gallagher, responded that "The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children.

California State Senator Leland Yee was very critical of the decision, claiming that "It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.

"[65] Yee stated he would review the opinions and attempt to reintroduce a new bill within the constitutionality of the decision, and claimed it was "disappointing the court didn't understand just how violent these games are".

Dan Offner, a partner for the video game industry analysis firm Loeb & Loeb believed that similar laws and regulations will be sought by State and Federal governments, as "the regulation of mature content with respect to minors as a hot button issue for the Federal Trade Commission and the various state governments".

She noted that she, along with four others on the court, effectively added language to the decision that would preempt any future laws that attempted to restrict game sales.

On the other hand, 39% of voters agreed with the Court's majority that "parents should make the decision" about what video games they purchase for their children, and what constitutes "too violent".