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Ken Turchi
IU Maurer School of Law

Last modified: Monday, June 27, 2011

Supreme Court decision on violent video games shows unusual alignment, says IU legal expert

June 27, 2011

BLOOMINGTON, Ind. -- The U.S. Supreme Court's decision striking down a California law restricting the sale or rental of violent video games to minors presents an unusual alignment of conservative and liberal justices, according to an Indiana University Maurer School of Law expert on the First Amendment.

"The majority opinion in Brown v. Entertainment Merchants Association reflects the court's recent holdings that exceptions to the First Amendment are few and far between," said Professor Daniel O. Conkle. "The interesting part of this decision is the split among the justices."

Daniel Conkle

Daniel Conkle

In the opinion, written by Justice Antonin Scalia, the majority held that video games were protected speech under the First Amendment, and any attempt to regulate their content would be invalid "unless justified by a compelling government interest narrowly drawn to serve that interest." The majority found that the California law failed to pass this analytical test, known in constitutional law as strict scrutiny.

"The interesting aspect of this case is that an unusual combination of justices lined up behind Justice Scalia," Conkle said. "Three justices from the Court's liberal wing -- Justices Ginsburg, Sotomayor, and Kagan -- joined in an opinion written by one of its most conservative justices."

Justice Kennedy, who often stands in the middle of the court, also joined Scalia's opinion. Conkle added that Justice Alito's concurring opinion was more sympathetic to the California law but found it unconstitutionally vague as written. Justices Breyer and Thomas dissented based on their tendencies toward pragmatism and originalism, respectively.

"The opinion in Brown v. EMA underlines the Supreme Court's expansive definition of First Amendment protections," Conkle concluded. "A state's attempt to regulate protected speech or conduct will continue to be viewed with great suspicion."

Conkle is the Robert H. McKinney Professor of Law at the IU Maurer School of Law and an Adjunct Professor of Religious Studies at Indiana University. He is available to comment on this and other First Amendment topics, and can be reached at or at 812-855-4331.