FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIDEO SOFTWARE DEALERS
ASSOCIATION; ENTERTAINMENT
SOFTWARE ASSOCIATION,
Plaintiffs-Appellees,
v.
ARNOLD SCHWARZENEGGER, in his
official capacity as Governor State
of California; EDMUND G. BROWN,
JR., in his official capacity as
Attorney General, State of No. 07-16620
California,
Defendants-Appellants, D.C. No.
CV-05-04188-RMW
and OPINION
GEORGE KENNEDY, in his official
capacity as Santa Clara County
District Attorney; RICHARD DOYLE,
in his official capacity as City
Attorney for the City of San Jose;
ANN MILLER RAVEL, in her official
capacity as County Counsel for
the County of Santa Clara,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, District Judge, Presiding
Argued and Submitted
October 29, 2008—Sacramento, California
Filed February 20, 2009
1937
1938 VIDEO SOFTWARE v. SCHWARZENEGGER
Before: Alex Kozinski, Chief Judge, Sidney R. Thomas and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
VIDEO SOFTWARE v. SCHWARZENEGGER 1941
COUNSEL
Zachery P. Morazzini, Deputy Attorney General for the State
of California, on behalf of Defendants-Appellants Arnold
Schwarzenegger, in his official capacity as Governor of the
State of California, and Edmund G. Brown, in his official
capacity as Attorney General of the State of California.
Paul M. Smith, Jenner & Block LLP, on behalf of Plaintiffs-
Appellees Video Software Dealers Association and Entertain-
ment Software Association.
OPINION
CALLAHAN, Circuit Judge:
Defendants-Appellants California Governor Schwarzeneg-
ger and California Attorney General Brown (the “State”)
appeal the district court’s grant of summary judgment in favor
of Plaintiffs-Appellees Video Software Dealers Association
and Entertainment Software Association (“Plaintiffs”), and
the denial of the State’s cross-motion for summary judgment.1
Plaintiffs filed suit for declaratory relief seeking to invalidate
newly-enacted California Civil Code sections 1746-1746.5
(the “Act”), which impose restrictions and a labeling require-
ment on the sale or rental of “violent video games” to minors,
1
Plaintiffs are associations of companies that create, publish, distribute,
sell and/or rent video games, including games that would be potentially
regulated under the California statutory scheme at issue.
1942 VIDEO SOFTWARE v. SCHWARZENEGGER
on the grounds that the Act violates rights guaranteed by the
First and Fourteenth Amendments.2
We hold that the Act, as a presumptively invalid content-
based restriction on speech, is subject to strict scrutiny and
not the “variable obscenity” standard from Ginsberg v. New
York, 390 U.S. 629 (1968). Applying strict scrutiny, we hold
that the Act violates rights protected by the First Amendment
because the State has not demonstrated a compelling interest,
has not tailored the restriction to its alleged compelling inter-
est, and there exist less-restrictive means that would further
the State’s expressed interests. Additionally, we hold that the
Act’s labeling requirement is unconstitutionally compelled
speech under the First Amendment because it does not require
the disclosure of purely factual information; but compels the
carrying of the State’s controversial opinion. Accordingly, we
affirm the district court’s grant of summary judgment to
Plaintiffs and its denial of the State’s cross-motion. Because
we affirm the district court on these grounds, we do not reach
two of Plaintiffs’ challenges to the Act: first, that the language
of the Act is unconstitutionally vague, and, second, that the
Act violates Plaintiffs’ rights under the Equal Protection
Clause of the Fourteenth Amendment.
I.
A.
On October 7, 2005, Governor Schwarzenegger signed into
law Assembly Bill 1179 (“AB 1179”), codified at Civil Code
§§ 1746-1746.5.3 The Act states that “[a] person may not sell
or rent a video game that has been labeled as a violent video
2
All references to “Civil Code” or “section 1746” refer to the California
Civil Code unless otherwise indicated.
3
During the legislative session, A.B. 1179 had been “gutted” and
amended; the language in Assembly Bill 450 (“A.B. 450”) replaced the
original language in A.B. 1179.
VIDEO SOFTWARE v. SCHWARZENEGGER 1943
game to a minor.” Cal. Civ. Code § 1746.1(a).4 Violators are
subject to a civil penalty of up to $1,000. Id. at § 1746.3.
Central to this appeal, the Act defines a “violent video
game” as follows:
(d)(1) “Violent video game” means a video game in
which the range of options available to a player
includes killing, maiming, dismembering, or sexu-
ally assaulting an image of a human being, if those
acts are depicted in the game in a manner that does
either of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the
game as a whole, would find appeals to a
deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing
standards in the community as to what is
suitable for minors.
(iii) It causes the game, as a whole, to lack
serious literary, artistic, political, or scien-
tific value for minors.
(B) Enables the player to virtually inflict serious
injury upon images of human beings or characters
with substantially human characteristics in a manner
which is especially heinous, cruel, or depraved in
4
The parties dispute whether the Act bans purchases or rentals by
minors who are accompanied by their parents. The Act does not speak to
whether there is an exception for sales to minors accompanied by a parent;
it states only that it does not apply “if the violent video game is sold or
rented to a minor by the minor’s parent, grandparent, aunt, uncle, or legal
guardian.” Cal. Civ. Code § 1746.1(c).
1944 VIDEO SOFTWARE v. SCHWARZENEGGER
that it involves torture or serious physical abuse to
the victim.
Id. at § 1746(d)(1).5 Borrowing language from federal death
penalty jury instructions, the Act also defines the terms
“cruel,” “depraved,” “heinous,” and “serious physical abuse,”6
and states that “[p]ertinent factors in determining whether a
5
The State concedes on appeal, consistent with the district court’s con-
clusion, that the alternate definition of “violent video game” in section
1746(d)(1)(B) is unconstitutional because it “does not provide an excep-
tion for material that might have some redeeming value to minors . . . .”
The State’s contention that this section of the Act is severable based on
the severability clause contained in California Civil Code § 1746.5 is sub-
sequently addressed.
6
Section 1746(d)(2) includes the following definitions:
(A) “Cruel” means that the player intends to virtually inflict a
high degree of pain by torture or serious physical abuse of the
victim in addition to killing the victim.
(B) “Depraved” means that the player relishes the virtual killing
or shows indifference to the suffering of the victim, as evidenced
by torture or serious physical abuse of the victim.
(C) “Heinous” means shockingly atrocious. For the killing
depicted in a video game to be heinous, it must involve additional
acts of torture or serious physical abuse of the victim as set apart
from other killings.
(D) “Serious physical abuse” means a significant or consider-
able amount of injury or damage to the victim’s body which
involves a substantial risk of death, unconsciousness, extreme
physical pain, substantial disfigurement, or substantial impair-
ment of the function of a bodily member, organ, or mental fac-
ulty. Serious physical abuse, unlike torture, does not require that
the victim be conscious of the abuse at the time it is inflicted.
However, the player must specifically intend the abuse apart from
the killing.
(E) “Torture” includes mental as well as physical abuse of the
victim. In either case, the virtual victim must be conscious of the
abuse at the time it is inflicted; and the player must specifically
intend to virtually inflict severe mental or physical pain or suffer-
ing upon the victim, apart from killing the victim.
VIDEO SOFTWARE v. SCHWARZENEGGER 1945
killing depicted in a video game is especially heinous, cruel,
or depraved include infliction of gratuitous violence upon the
victim beyond that necessary to commit the killing, needless
mutilation of the victim’s body, and helplessness of the victim.”7
Id. at § 1746(d)(2)-(3).
The Act also imposes a labeling requirement. It requires
that each “violent video game” imported into or distributed in
California must “be labeled with a solid white ‘18’ outlined
in black,” which shall appear on the front face of the game’s
package and be “no less than 2 inches by 2 inches” in size.
Id. at § 1746.2.
A.B. 1179 states that the State of California has two com-
pelling interests that support the Act: (1) “preventing violent,
aggressive, and antisocial behavior”; and (2) “preventing psy-
chological or neurological harm to minors who play violent
video games.” A.B. 1179 also “finds and declares” that:
(a) Exposing minors to depictions of violence in
video games, including sexual and heinous violence,
makes those minors more likely to experience feel-
ings of aggression, to experience a reduction of
activity in the frontal lobes of the brain, and to
exhibit violent antisocial or aggressive behavior.
(b) Even minors who do not commit acts of vio-
lence suffer psychological harm from prolonged
exposure to violent video games.
The State included in the excerpts of record several hun-
dred pages of material on which the Legislature purportedly
relied in passing the Act. While many of the materials are
social science studies on the asserted impact of violent video
7
Legislative materials in the record indicate that the Legislature used
these terms in the Act because they survived claims of unconstitutional
vagueness in United States v. Jones, 132 F.3d 232 (5th Cir. 1998).
1946 VIDEO SOFTWARE v. SCHWARZENEGGER
games on children, other documents are varied and include
legal analyses, general background papers, position papers,
etc. Dr. Craig Anderson, whose work is central to the State’s
arguments in this case, is listed as an author of roughly half
of the works included in the bibliography.
B.
The content of the video games potentially affected by the
Act is diverse. Some of the games to which the Act might
apply are unquestionably violent by everyday standards, digi-
tally depicting what most people would agree amounts to
murder, torture, or mutilation. For example, the State submit-
ted a videotape that contains several vignettes from the games
Grand Theft Auto: Vice City, Postal 2, and Duke Nukem 3D,
which demonstrate the myriad ways in which characters can
kill or injure victims or adversaries.8 The record also contains
descriptions of several games, some of which are based on
popular novels or motion pictures, which are potentially cov-
ered by the Act. Many of these games have extensive plot
lines that involve or parallel historical events, mirror common
fictional plots, or place the player in a position to evaluate and
make moral choices.
The video game industry has in place a voluntary rating
system to provide consumers and retailers information about
video game content. The Entertainment Software Rating
Board (“ESRB”), an independent, self-regulated body estab-
lished by the Entertainment Software Association, rates the
content of video games that are voluntarily submitted. ESRB
assigns each game one of six age-specific ratings, ranging
from “Early Childhood” to “Adults Only.”9 It also assigns to
8
We note that the State’s videotape contains heavily edited selections of
the violence that can be meted out, but does not include any context or
possible storyline within which the violence occurs.
9
The age ratings include “EC” (Early Childhood), “E” (Everyone),
“E10+” (Everyone Ten and Older), “T” (Teen [13+]), “M” (Mature
[17+]), and “AO” (Adults Only [18+]).
VIDEO SOFTWARE v. SCHWARZENEGGER 1947
each game one of roughly thirty content descriptors, which
include “Animated Blood,” “Blood and Gore,” “Cartoon Vio-
lence,” “Crude Humor,” “Fantasy Violence,” “Intense Vio-
lence,” “Language,” “Suggestive Themes,” and “Sexual
Violence.”
C.
On October 17, 2005, before the Act took effect, Plaintiffs
filed suit against the Governor, the Attorney General, and
three city and county defendants, all in their official capaci-
ties, for declaratory relief against the Act on the grounds that
it violated 42 U.S.C. § 1983 and the First and Fourteenth
Amendments. Plaintiffs argued that the Act unconstitutionally
restricted freedom of expression on its face based on content
regulation and the labeling requirement, was unconstitution-
ally vague, and violated equal protection.
The district court granted Plaintiffs’ motion for a prelimi-
nary injunction. Video Software Dealers Ass’n v. Schwar-
zenegger, 401 F. Supp. 2d 1034 (N.D. Cal. 2005).
Subsequently, the parties filed cross-motions for summary
judgment. The district court granted Plaintiffs’ motion and
denied the State’s cross-motion. See Video Software Dealers
Ass’n v. Schwarzenegger, No. C-05-04188, slip op. (N.D. Cal.
Aug. 6, 2007). The district court’s summary judgment order
invalidated the Act under strict scrutiny, and did not reach
Plaintiffs’ claims regarding vagueness, equal protection, or
the Act’s labeling requirement. The district court permanently
enjoined enforcement of the Act. The State timely appealed.
II.
We review a grant of summary judgment de novo and must
“determine, viewing the evidence in the light most favorable
to the nonmoving party, whether there are any genuine issues
of material fact and whether the district court correctly
applied substantive law.” Ballen v. City of Redmond, 466 F.3d
1948 VIDEO SOFTWARE v. SCHWARZENEGGER
736, 741 (9th Cir. 2006) (citation and internal quotation
marks omitted). We draw all reasonable inferences supported
by the evidence in the nonmoving party’s favor. Id. We “may
affirm summary judgment on any ground supported by the
record.” Doran v. 7-Eleven, Inc., 524 F.3d 1034, 1039 n.3
(9th Cir. 2008).
III.
[1] We first address Plaintiffs’ argument that the entire Act
should be invalidated based on the State’s concession on
appeal that the alternate definition of “violent video game”
found in section 1746(d)(1)(B) is unconstitutionally broad.
The State counters that the Act is saved by the severability
clause in Civil Code § 1746.5, which states: “The provisions
of this title are severable. If any provision of this title or its
application is held to be invalid, that invalidity shall not affect
other provisions or applications that can be given effect with-
out the invalid provision or application.” We hold that the Act
is not wholly invalid as a result of the State’s concession.
[2] We look to state law to determine the effect of the sev-
erability clause. Qwest Commc’ns Inc. v. City of Berkeley,
433 F.3d 1253, 1259 (9th Cir. 2006), overruled on other
grounds, Sprint Telephony PCS, L.P. v. County of San Diego,
543 F.3d 571 (9th Cir. 2008) (en banc). Under California law,
there is a general presumption in favor a statute’s constitu-
tionality. Ex parte Blaney, 184 P.2d 892, 900 (Cal. 1947)
(“[T]he general presumption of constitutionality, fortified by
the express statement of a severability clause, normally calls
for sustaining any valid portion of statute unconstitutional in
part.”). An invalid portion of a statute
can be severed if, and only if, it is “grammatically,
functionally and volitionally separable.” It is “gram-
matically” separable if it is “distinct” and “separate”
and, hence, “can be removed as a whole without
affecting the wording of any” of the measure’s
VIDEO SOFTWARE v. SCHWARZENEGGER 1949
“other provisions.” It is “functionally” separable if it
is not necessary to the measure’s operation and pur-
pose. And it is “volitionally” separable if it was not
of critical importance to the measure’s enactment.
Hotel Employees & Rest. Employees Int’l Union v. Davis, 981
P.2d 990, 1009 (Cal. 1999) (citations omitted); see also Jevne
v. Superior Court, 111 P.3d 954, 971 (Cal. 2005).
[3] Section 1746(d)(1)(B) is grammatically and function-
ally separable because, as an alternate definition of “violent
video game,” it can be removed from the Act without affect-
ing the wording or function of the Act’s other provisions.
Plaintiffs contend, however, that such a deletion does not
account for the phrase “does either of the following” in sec-
tion 1746(d)(1), which is the lead-in language to the alternate
definitions of “violent video game,” and that retaining this
phrase results in a “conundrum and grammatical error.” Plain-
tiffs’ concerns are accounted for by the simultaneous deletion
of the phrase “does either of the following.” Although some
California cases speak in general terms of separability “as a
whole,” see, e.g., Jevne, 111 P.3d at 972, the California
Supreme Court has also evaluated grammatical and functional
separability with respect to whether the valid and invalid por-
tions of a statute or initiative can be “separated by paragraph,
sentence, clause, phrase, or even single words.” Santa Bar-
bara Sch. Dist. v. Superior Court of Santa Barbara County,
530 P.2d 605, 617 (Cal. 1975); see also Ex parte Blaney, 184
P.2d at 900; accord Schweitzer v. Westminster Invs., 69 Cal.
Rptr. 3d 472, 485 (Ct. App. 2007). Here, the phrase “does
either of the following” can be cleanly stricken without doing
violence to the rest of the Act or impermissibly reading into
the statute any exceptions or qualifications. See Fort v. Civ.
Serv. Comm’n of Alameda County, 392 P.2d 385, 390 (Cal.
1964).10
10
Although not argued by the parties, we note that deleting Civil Code
§ 1746(d)(1)(B) also appears to require the deletion of sections 1746(d)(2)
and (d)(3)—which define when a violent act is “cruel,” “depraved,” or
“heinous,” or involves “serious physical abuse” or “torture”—because
these sections only relate to or explain section 1746(d)(1)(B).
1950 VIDEO SOFTWARE v. SCHWARZENEGGER
[4] Sections 1746(d)(1)(B), (d)(2), and (d)(3) are also voli-
tionally separable. We must ask whether the inclusion of these
sections was of critical importance to passage of the Act and
whether the Act “would have been adopted by the legislative
body had [it] foreseen the partial invalidation of the statute.”
Sonoma County Org. of Pub. Employees v. County of
Sonoma, 591 P.2d 1, 14 (Cal. 1979) (citation and internal quo-
tation marks omitted). Evidence in the record indicates that
the Legislature included sections 1746(d)(1)(B), (d)(2) and
(d)(3) in the Act with the express goal of avoiding the consti-
tutional pitfalls identified in Video Software Dealers Associa-
tion v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004). An
Assembly Judiciary Committee Mandatory Information
Worksheet to A.B. 450 and a Research Summary to A.B. 450
both indicate that these detailed definition sections were
included in the Act for the purpose of avoiding the result in
Maleng, where a Washington district court struck down a
2003 state statute, in part, because it was not narrowly tai-
lored. Further, the Assembly Third Reading to A.B. 450 also
discusses the tailoring issues in Maleng, and notes that the
Act “regulates the sale of only those games that contain the
most heinous, cruel or depraved acts of violence.” Nonethe-
less, the record does not persuade us that sections
1746(d)(1)(B), (d)(2) and (d)(3) were “critical” to the passage
of the Act. The fact that the Legislature included an alternate
definition for “violent video game” designed to help the Act
withstand a constitutional challenge does not necessarily indi-
cate that it would not have passed the Act but for the inclusion
of these sections. Accordingly, in light of California’s pre-
sumption in favor of retaining constitutional parts of statutes,
we conclude that the Act is not wholly invalid as a result of
the State’s concession.
IV.
[5] Our next task is to determine what level of scrutiny to
apply in reviewing the Act’s prohibitions. Existing case law
indicates that minors are entitled to a significant measure of
VIDEO SOFTWARE v. SCHWARZENEGGER 1951
First Amendment protections, that content-based regulations
are presumptively invalid and subject to strict scrutiny, and
that if less restrictive means for achieving a state’s compelling
interest are available, they must be used. The State’s argu-
ment on appeal, that we should not apply strict scrutiny and
instead should apply a “variable obscenity” standard from
Ginsberg v. New York, 390 U.S. 629 (1968), raises a question
of first impression in this circuit.
[6] The Supreme Court has stated that “minors are entitled
to a significant measure of First Amendment protection, and
only in relatively narrow and well-defined circumstances may
government bar public dissemination of protected materials to
them.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-
13 (1975) (citations omitted). The State does not contest that
video games are a form of expression protected by the First
Amendment.11 See Interactive Digital Software Ass’n v. St.
Louis, 329 F.3d 954, 956-58 (8th Cir. 2003) (holding that “vi-
olent” video games are a protected form of speech); Maleng,
325 F. Supp. 2d at 1184-85 (same). It is also undisputed that
the Act seeks to restrict expression in video games based on
its content. See Ctr. for Bio-Ethical Reform, Inc. v. Los Ange-
les County Sheriff Dep’t, 533 F.3d 780, 787 (9th Cir. 2008)
(“[A] law is content-based if either the main purpose in enact-
ing it was to suppress or exalt speech of a certain content, or
it differentiates based on the content of speech on its face.”
(citation and internal quotation marks omitted)); Interactive
Digital Software Ass’n, 329 F.3d at 958 (holding that an ordi-
nance that applied to graphically violent video games was a
content-based restriction).
11
The Supreme Court has not specifically commented on whether video
games contain expressive content protected under the First Amendment;
however, story-laden video games of the type potentially covered under
the Act are similar to movies, which the Court has long held are protected
expression notwithstanding their ability to entertain as well as inform. See,
e.g., Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952).
1952 VIDEO SOFTWARE v. SCHWARZENEGGER
“Content-based regulations are presumptively invalid.”
R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). We ordi-
narily review content-based restrictions on protected expres-
sion under strict scrutiny, and thus, to survive, the Act “must
be narrowly tailored to promote a compelling Government
interest.” United States v. Playboy Entm’t Group, Inc., 529
U.S. 803, 813 (2000). “If a less restrictive alternative would
serve the Government’s purpose, the legislature must use that
alternative.” Id.; see also Sable Commc’ns of Cal., Inc. v.
FCC, 492 U.S. 115, 126 (1989) (“The Government may . . .
regulate the content of constitutionally protected speech in
order to promote a compelling interest if it chooses the least
restrictive means to further the articulated interest.”); Reno v.
ACLU, 521 U.S. 844, 876-77 (1997) (finding relevant the fact
that a reasonably effective method by which parents could
prevent children from accessing internet material which par-
ents believed to be inappropriate “will soon be widely avail-
able”).
The State, however, urges us to depart from this framework
because the Act concerns minors. It argues that we should
analyze the Act’s restrictions under what has been called the
“variable obscenity” or “obscenity as to minors” standard first
mentioned in Ginsberg, 390 U.S. 629. In essence, the State
argues that the Court’s reasoning in Ginsberg that a state
could prohibit the sale of sexually-explicit material to minors
that it could not ban from distribution to adults should be
extended to materials containing violence. This presents an
invitation to re-consider the boundaries of the legal concept of
“obscenity” under the First Amendment.
[7] In Ginsberg, the Court held that New York State could
prohibit the sale of sexually-explicit material to minors that
was defined by statute as obscene because of its appeal to
minors. Id. at 643, 646. Therefore, the state could prohibit the
sale of “girlie magazines” to minors regardless of the fact that
the material was not considered obscene for adults. Id. at 643.
The Court stated that “[t]o sustain the power to exclude mate-
VIDEO SOFTWARE v. SCHWARZENEGGER 1953
rial defined as obscenity by [the statute] requires only that we
be able to say that it was not irrational for the legislature to
find that exposure to material condemned by the statute is
harmful to minors.”12 Id. at 641. The Court offered two justifi-
cations for applying this rational basis standard: (1) that “con-
stitutional interpretation has consistently recognized that the
parents’ claim to authority in their own household to direct
the rearing of their children is basic in the structure of our
society”; and (2) the state’s “independent interest in the well-
being of its youth.” Id. at 639-40.
The State suggests that the justifications underlying Gins-
berg should apply to the regulation of violent content as well
as sexually explicit material. The assertion, however, fails
when we consider the category of material to which the Gins-
berg decision applies and the First Amendment principles in
which that decision was rooted.
[8] Ginsberg is specifically rooted in the Court’s First
Amendment obscenity jurisprudence, which relates to non-
protected sex-based expression—not violent content, which is
presumably protected by the First Amendment. See 390 U.S.
at 640. Ginsberg explicitly states that the New York statute
under review “simply adjusts the definition of obscenity to
social realities by permitting the appeal of this type of mate-
rial to be assessed in term of the sexual interests of such
minors.” Id. at 638 (citation, internal quotation marks, and
alterations omitted). The definition of obscenity that Ginsberg
adjusted was the Court’s obscenity test announced in Roth v.
United States, which dealt with obscene materials defined
with reference to sex. 354 U.S. 476, 485-87 (1957) (discuss-
12
The statute in Ginsberg used the defined term “harmful to minors,”
which prohibited access by minors when it: “(i) predominantly appeals to
the prurient, shameful or morbid interest of minors, and [¶] (ii) is patently
offensive to prevailing standards in the adult community as a whole with
respect to what is suitable material for minors, and [¶] (iii) is utterly with-
out redeeming social importance for minors.” Id. at 646.
1954 VIDEO SOFTWARE v. SCHWARZENEGGER
ing the nature of obscenity at length and stating, among other
things, that “[o]bscene material is material which deals with
sex in a manner appealing to prurient interest.”). The Gins-
berg Court applied a rational basis test to the statute at issue
because it placed the magazines at issue within a sub-category
of obscenity—obscenity as to minors—that had been deter-
mined to be not protected by the First Amendment, and it did
not create an entirely new category of expression excepted
from First Amendment protection. The State, in essence, asks
us to create a new category of non-protected material based
on its depiction of violence.
The Supreme Court has carefully limited obscenity to sex-
ual content. Although the Court has wrestled with the precise
formulation of the legal test by which it classifies obscene
material, it has consistently addressed obscenity with refer-
ence to sex-based material. Such was the case in Roth and
Memoirs v. Massachusetts, 383 U.S. 413 (1966), which modi-
fied Roth. And though it post-dates Ginsberg, the Court in
Miller v. California expressly cabined the First Amendment
concept of obscenity in terms of sexual material. 413 U.S. 15,
24 (1973) (“[W]e now confine the permissible scope of such
regulation to works which depict or describe sexual con-
duct.”)
Circuit courts have resisted attempts to broaden obscenity
to cover violent material as well as sexually-explicit material.
In American Amusement Machine Association v. Kendrick,
which involved a video game restriction that mixed the regu-
lation of sexual and violent material, the Seventh Circuit dis-
cussed why “[v]iolence and obscenity are distinct categories
of objectionable depiction,” explaining that obscenity is con-
cerned with “offensiveness,” whereas ordinances like the one
at issue in Kendrick (and here) are concerned with conduct or
harm. 244 F.3d 572, 574-75 (7th Cir. 2001), cert. denied, 534
U.S. 994 (2001).13 In Video Software Dealers Association v.
13
Citing one law review article, the State also urges us to redefine the
First Amendment meaning of “obscenity”—which involves material
VIDEO SOFTWARE v. SCHWARZENEGGER 1955
Webster, the Eighth Circuit held that videos “that contain[ ]
violence but not depictions or descriptions of sexual conduct
cannot be obscene.” 968 F.2d 684, 688 (8th Cir. 1992)
(“Obscenity . . . encompasses only expression that ‘depict[s]
or describe[s] sexual conduct’ ” (citing Miller, 413 U.S. at
24)). Likewise, in Eclipse Enterprises, Inc. v. Gullota, the
Second Circuit declined to place trading cards which depicted
heinous crime that was allegedly harmful to minors in the cat-
egory of unprotected obscenity. 134 F.3d 63, 66-68 (2d Cir.
1997). Further, in James v. Meow Media, Inc., the Sixth Cir-
cuit, in discussing excessively violent movies and video game
material, “decline[d] to extend [its] obscenity jurisprudence to
violent, instead of sexually explicit, material.” 300 F.3d 683,
698 (6th Cir. 2002).
Finally, we note that the Ginsberg Court suggested its
intent to place a substantive limit on its holding. It stated:
We have no occasion in this case to consider the
impact of the guarantees of freedom of expression
upon the totality of the relationship of the minor and
the State. It is enough for the purposes of this case
that we inquire whether it was constitutionally
impermissible for New York . . . to accord minors
under 17 a more restricted right than that assured to
adults to judge and determine for themselves what
sex material they may read or see.
related to sex—by substituting an ordinary definition of obscenity based
on its Latin root. In Maleng, Judge Lasnik rejected the same argument.
325 F. Supp. 2d at 1185. He explained that the phrase “obscene material”
was not inherently limited to sexually explicit material in the ordinary
sense, and that the Latin root “obscaenus” literally means “filth.” Id.
Nonetheless, he held, relying on Miller, 413 U.S. 15, that “when used in
the context of the First Amendment, the word ‘obscenity’ means material
that deals with sex.” Id. This reasoning, dismissing the linguistic argu-
ment, applies equally to the State’s argument here.
1956 VIDEO SOFTWARE v. SCHWARZENEGGER
Ginsberg, 390 U.S. at 636-37 (citation omitted). Though not
the clearest of disclaimers, this language telegraphs that the
Court’s concern in Ginsberg was with the relationship
between the state and minors with respect to a certain subject
matter—“sex material” as it relates to the interests of minors.
[9] In light of our reading of Ginsberg and the cases from
our sister circuits, we decline the State’s invitation to apply
the Ginsberg rationale to materials depicting violence, and
hold that strict scrutiny remains the applicable review standard.14
Our decision is consistent with the decisions of several other
courts that have addressed and rejected the argument that the
Ginsberg standard be extended from the field of sex-based
content to violence in video games. See Interactive Digital
Software Ass’n, 329 F.3d at 959; Kendrick, 244 F.3d at 576-
78; Entm’t Software Ass’n v. Granholm, 426 F. Supp. 2d 646,
652 (E.D. Mich. 2006); Maleng, 325 F. Supp. 2d at 1185-86.
At oral argument, the State confirmed that it is asking us to
boldly go where no court has gone before. We decline the
State’s entreaty to extend the reach of Ginsberg and thereby
redefine the concept of obscenity under the First Amendment.
V.
[10] Accordingly, we review the Act’s content-based prohi-
bitions under strict scrutiny. As noted above, “[c]ontent-based
regulations are presumptively invalid,” R.A.V., 505 U.S. at
382, and to survive the Act “must be narrowly tailored to pro-
mote a compelling Government interest.” Playboy Entm’t
Group, Inc., 529 U.S. at 813. Further, “[i]f a less restrictive
alternative would serve the Government’s purpose, the legis-
lature must use that alternative.” Id.
14
We also reject the State’s more general request that we equate violent
content with unprotected “obscenity.” As the discussion above indicates,
the Court’s obscenity jurisprudence limits obscene materials to sex-based
materials.
VIDEO SOFTWARE v. SCHWARZENEGGER 1957
A.
The Legislature stated that it had two compelling interests
in passing the Act: (1) “preventing violent, aggressive, and
antisocial behavior”; and (2) “preventing psychological or
neurological harm to minors who play violent video games.”
Although there was some early confusion over whether the
State was relying on both of these interests, the State subse-
quently clarified that “[t]he physical and psychological well-
being of children is the concern of the Act,” as distinguished
from the interest of protecting third parties from violent
behavior. The State’s focus is on the actual harm to the brain
of the child playing the video game. Therefore, we will not
assess the Legislature’s purported interest in the prevention of
“violent, aggressive, and antisocial behavior.”15
[11] The Supreme Court has recognized that “there is a
compelling interest in protecting the physical and psychologi-
cal well-being of minors.” Sable Commc’ns of Cal., Inc., 492
U.S. at 126; see also Entm’t Software Ass’n v. Swanson, 519
15
Throughout this litigation, the parties have disagreed as to what extent
Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam), applies to this
case. The dispute stems from the fact that one of the compelling interests
advanced by the Legislature is the prevention of “violent, aggressive, and
antisocial behavior.” One of the Legislature’s findings was that
“[e]xposing minors to depictions of violence in video games . . . makes
those minors more likely . . . to exhibit violent antisocial or aggressive
behavior.” However, “[t]he government may not prohibit speech because
it increases the chance an unlawful act will be committed ‘at some indefi-
nite future time.’ ” Ashcroft v. Free Speech Coal., 535 U.S. 234, 253
(2002) (citation omitted). It “may suppress speech for advocating the use
of force or a violation of law only if ‘such advocacy is directed to inciting
or producing imminent lawless action and is likely to incite or produce
such action.’ ” Id. (citing Brandenburg, 395 U.S. at 447). District courts
analyzing the violence prevention rationale have rejected it. See Entertain-
ment Software Association v. Blagojevich, 404 F. Supp. 2d 1051, 1073
(N.D. Ill. 2005); Granholm, 426 F. Supp. 2d at 652; Entm’t Software Ass’n
v. Foti, 451 F. Supp. 2d 823, 831 (M.D. La. 2006); Maleng, 325 F. Supp.
2d at 1187 n.3.
1958 VIDEO SOFTWARE v. SCHWARZENEGGER
F.3d 768, 771 (8th Cir. 2008); Interactive Digital Software
Ass’n, 329 F.3d at 958; Nunez by Nunez v. City of San Diego,
114 F.3d 935, 944 (9th Cir. 1997); Maleng, 325 F. Supp. 2d
at 1186-87. Notwithstanding this abstract compelling interest,
when the government seeks to restrict speech “[i]t must dem-
onstrate that the recited harms are real, not merely conjec-
tural, and that the regulation will in fact alleviate these harms
in a direct and material way.” Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 664 (1994) (plurality op.); Swanson, 519
F.3d at 771; Interactive Digital Software Ass’n, 329 F.3d at
958-59. Although we must accord deference to the predictive
judgments of the legislature, our “obligation is to assure that,
in formulating its judgments, [the legislature] has drawn rea-
sonable inferences based on substantial evidence.” Turner
Broad. Sys., Inc. v. FCC, 520 U.S. 180, 195 (1997) (citations
and quotation marks omitted); see also Playboy Entm’t
Group, Inc., 529 U.S. at 822 (“This is not to suggest that a
10,000-page record must be compiled in every case or that the
Government must delay in acting to address a real problem;
but the Government must present more than anecdote and
supposition. The question is whether an actual problem has
been proved . . . .” ).
In evaluating the State’s asserted interests, we must distin-
guish the State’s interest in protecting minors from actual psy-
chological or neurological harm from the State’s interest in
controlling minors’ thoughts. The latter is not legitimate. The
Supreme Court has warned that the
government cannot constitutionally premise legisla-
tion on the desirability of controlling a person’s pri-
vate thoughts. First Amendment freedoms are most
in danger when the government seeks to control
thought or to justify its laws for that impermissible
end. The right to think is the beginning of freedom,
and speech must be protected from the government
because speech is the beginning of thought.
VIDEO SOFTWARE v. SCHWARZENEGGER 1959
Ashcroft, 535 U.S. at 253 (citation and internal quotation
marks omitted.) In Kendrick, the Seventh Circuit commented
on a psychological harm rationale in the violent video game
context:
Violence has always been and remains a central
interest of humankind and a recurrent, even obses-
sive theme of culture both high and low. It engages
the interest of children from an early age, as anyone
familiar with the classic fairy tales collected by
Grimm, Andersen, and Perrault is aware. To shield
children right up to the age of 18 from exposure to
violent descriptions and images would not only be
quixotic, but deforming; it would leave them
unequipped to cope with the world as we know it.
244 F.3d at 579; see also Interactive Digital Software Ass’n,
329 F.3d at 960 (“Speech that is neither obscene as to youths
nor subject to some other legitimate proscription cannot be
suppressed solely to protect the young from ideas or images
that a legislative body thinks unsuitable for them.”) (citation
and quotation marks omitted). Because the government may
not restrict speech in order to control a minor’s thoughts, we
focus on the State’s psychological harm rationale in terms of
some actual effect on minors’ psychological health.
[12] Whether the State’s interest in preventing psychologi-
cal or neurological harm to minors is legally compelling
depends on the evidence the State proffers of the effect of
video games on minors. Although the Legislature is entitled
to some deference, the courts are required to review whether
the Legislature has drawn reasonable inferences from the evi-
dence presented. See Turner Broad. Sys., Inc., 520 U.S. at
195. Here, the State relies on a number of studies in support
of its argument that there is substantial evidence of a causal
effect between minors playing violent video games and actual
psychological harm.
1960 VIDEO SOFTWARE v. SCHWARZENEGGER
The State relies heavily on the work of Dr. Craig Anderson,
pointing to Dr. Anderson’s 2004 updated meta-analysis called
An update on the effects of playing violent video games.16
Craig A. Anderson, An update on the effects of playing violent
video games, 27 J. ADOLESCENCE 113 (2004). This article
states that it “reveals that exposure to violent video games is
significantly linked to increases in aggressive behaviour,
aggressive cognition, aggressive affect, and cardiovascular
arousal, and to decreases in helping behaviour.” Even upon
lay review, however, the disclaimers in this article, alone, sig-
nificantly undermine the inferences drawn by the State in sup-
port of its psychological harm rationale.17 First, Dr. Anderson
remarks on the relative paucity of the video game literature
and concedes that the violent video game literature is not suf-
ficiently large to conduct a detailed meta-analysis of the spe-
cific methodological features of other studies, many of which
were themselves flawed. Second, he further states that
“[t]here is not a large enough body of samples . . . for truly
sensitive tests of potential age difference in susceptibility to
violent video game effects,” and jettisons mid-article his
exploration of the effect of age differences (i.e., over-eighteen
versus under-eighteen). It appears that he abandoned the age
aspect of the study, in part, because “there was a hint that the
aggressive behaviour results might be slightly larger for the
18 and over group.” He concludes the meta-analysis with the
admission that there is a “glaring empirical gap” in video
game violence research due to “the lack of longitudinal
studies.”
16
Meta-analysis is “a quantitative method for integrating existing
studies” where “statistical procedures are used to assess the magnitude of
a phenomenon across different studies, independent of the studies’ sample
sizes.” David L. Faigman et al., 2 MOD. SCI. EVIDENCE § 18:13 (2005-06
Ed.).
17
Dr. Anderson’s hearing testimony in the Blagojevich case, which is in
the record, contains his assent to the statements that there is probably an
“infinite” number of stimuli that could cause aggression or aggressive
thoughts in a person (e.g., a picture of a gun), and that his selection of vio-
lent video games was “largely a matter of [his] choice.”
VIDEO SOFTWARE v. SCHWARZENEGGER 1961
Thus, Dr. Anderson’s research has readily admitted flaws
that undermine its support of the State’s interest in regulating
video games sales and rentals to minors, perhaps most impor-
tantly its retreat from the study of the psychological effects of
video games as related to the age of the person studied.18
Although not dispositive of this case, we note that other
courts have either rejected Dr. Anderson’s research or found
it insufficient to establish a causal link between violence in
video games and psychological harm. See Kendrick, 244 F.3d
at 578; Granholm, 426 F. Supp. 2d at 653; Entm’t Software
Ass’n v. Hatch, 443 F. Supp. 2d 1065, 1069 & n.1 (D. Minn.
2006); Blagojevich, 404 F. Supp. 2d at 1063.
The State also relies on a study of the effects of video game
violence on adolescents, conducted by Dr. Douglas Gentile,
which studied eighth and ninth graders and concluded that
“[a]dolescents who expose themselves to greater amounts of
video game violence were more hostile” and reported getting
into more arguments and fights and performing poorly in
school. Douglas A. Gentile et al., The effects of violent video
game habits on adolescent hostility, aggressive behaviors,
and school performance, 27 J. ADOLESCENCE 5 (2004). The
extent to which this study supports the State’s position is sus-
pect for similar reasons as Dr. Anderson’s work. First, this
study states that due to its “correlational nature” it could not
directly answer the following question: “Are young adoles-
cents more hostile and aggressive because they expose them-
selves to media violence, or do previously hostile adolescents
prefer violent media?” Second, this study largely relates to the
player’s violent or aggressive behavior toward others—which,
18
The State also relies on a 2003 study on general media violence by Dr.
Anderson, which contains a three-page section on violent video games and
reflects the conclusions and shortfalls of the 2004 meta-analysis. Craig A.
Anderson et al., The Influence of Media Violence on Youth, 4
PSYCHOLOGICAL SCIENCE IN THE PUBLIC INTEREST 81, 90-93 (2003). For
example, the study states that “[t]here are no published longitudinal sur-
veys specifically focusing on effects of violent video games on aggres-
sion.”
1962 VIDEO SOFTWARE v. SCHWARZENEGGER
as noted above, is not the interest relied on by the State here
—rather than the psychological or neurological harm to the
player. Moreover, the study glaringly states that “[i]t is impor-
tant to note . . . that this study is limited by its correlational
nature. Inferences about causal direction should be viewed
with caution” (emphasis added). Finally, Dr. Gentile’s study
suggests that “[a]dditional experimental and longitudinal
research is needed.”
Additionally, the State relies on a study by Dr. Jeanne Funk
for the proposition that video games can lead to desensitiza-
tion to violence in minors. Jeanne B. Funk et al., Violence
exposure in real-life, video games, television, movies, and the
internet: is there desensitization?, 27 J. ADOLESCENCE 23
(2004). Like the others, this study presents only an attenuated
path between video game violence and desensitization. It spe-
cifically disclaims that it is based on correlation principles
and that “causality was not studied.”
Finally, the State relies on a two-page press release from
Indiana University regarding the purported connection
between violent video games and altered brain activity in the
frontal lobe. Press Release, Indiana University School of
Medicine, Aggressive Youths, Violent Video Games Trigger
Unusual Brain Activity (Dec. 2, 2002). The research
described, conducted in part by Dr. Kronenberger, has been
criticized by courts that have reviewed it in depth. See Blago-
jevich, 404 F. Supp. 2d at 1063-65 (“Dr. Kronenberger con-
ceded that his studies only demonstrate a correlative, not a
causal, relationship between high media violence exposure
and children who experience behavioral disorders [or]
decreased brain activity . . . .” ); Granholm, 426 F. Supp. 2d
at 653 (“Dr. Kronenberger’s research not only fails to provide
concrete evidence that there is a connection between violent
media and aggressive behavior, it also fails to distinguish
between video games and other forms of media.”).
[13] In sum, the evidence presented by the State does not
support the Legislature’s purported interest in preventing psy-
VIDEO SOFTWARE v. SCHWARZENEGGER 1963
chological or neurological harm. Nearly all of the research is
based on correlation, not evidence of causation, and most of
the studies suffer from significant, admitted flaws in method-
ology as they relate to the State’s claimed interest. None of
the research establishes or suggests a causal link between
minors playing violent video games and actual psychological
or neurological harm, and inferences to that effect would not
be reasonable. In fact, some of the studies caution against
inferring causation. Although we do not require the State to
demonstrate a “scientific certainty,” the State must come for-
ward with more than it has. As a result, the State has not met
its burden to demonstrate a compelling interest.
B.
Even if we assume that the State demonstrated a compel-
ling interest in preventing psychological or neurological harm,
the State still has the burden of demonstrating that the Act is
narrowly tailored to further that interest, and that there are no
less restrictive alternatives that would further the Act. Play-
boy Entm’t Group, Inc., 529 U.S. at 813. We hold that the
State has not demonstrated that less restrictive alternative
means are not available.
Instead of focusing its argument on the possibility of less
restrictive means, the State obscures the analysis by focusing
on the “most effective” means, which it asserts is the one
thousand dollar penalty imposed for each violation. Specifi-
cally, the State argues that the ESRB rating system, a volun-
tary system without the force of law or civil penalty, is not a
less-restrictive alternative means of furthering the Legisla-
ture’s purported compelling interest. Acknowledging that the
industry has implemented new enforcement mechanisms, the
State nevertheless argues that the ESRB does not adequately
prevent minors from purchasing M-rated games. The State
also dismisses the notion that parental controls on modern
gaming systems could serve the government’s purposes, argu-
ing that there is no evidence that this technology existed at the
1964 VIDEO SOFTWARE v. SCHWARZENEGGER
time the Act was passed. But see Foti, 451 F. Supp. 2d at 833
(suggesting that such controls could be a less-restrictive mea-
sure); cf. Reno, 521 U.S. at 876-77 (finding relevant the fact
that a reasonably effective method by which parents could
prevent children from accessing internet material which par-
ents believed to be inappropriate “will soon be widely avail-
able”).
Further, the State does not acknowledge the possibility that
an enhanced education campaign about the ESRB rating sys-
tem directed at retailers and parents would help achieve gov-
ernment interests. See also Playboy, 529 U.S. at 816 (“When
a plausible, less restrictive alternative is offered to a content-
based speech restriction, it is the Government’s obligation to
prove that the alternative will be ineffective to achieve its
goals.”); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
507-08 (1996) (plurality op.) (striking down ban on advertis-
ing alcohol prices because of less restrictive alternatives, such
as an educational campaign or counter-speech). The State
appears to be singularly focused on the “most effective” way
to further its goal, instead of the “least restrictive means,” and
has not shown why the less-restrictive means would be inef-
fective.
[14] Even assuming that the State’s interests in enacting the
Act are sufficient, the State has not demonstrated why less
restrictive means would not forward its interests. The Act,
therefore, is not narrowly tailored. Based on the foregoing,
and in light of the presumptive invalidity of content-based
restrictions, we conclude that the Act fails under strict scru-
tiny review.
VI.
Finally, we evaluate the constitutionality of the Act’s label-
ing provision, which requires that the front side of the pack-
age of a “violent video game” be labeled with a four square-
inch label that reads “18.” Cal. Civ. Code § 1746.2. Plaintiffs
VIDEO SOFTWARE v. SCHWARZENEGGER 1965
argue that section 1746.2 unconstitutionally forces video
game retailers to carry the State of California’s subjective
opinion, a message with which it disagrees. The State count-
ers that the “labeling provision impacts the purely commercial
aspect regarding retail sales of the covered video games” and,
under the resulting rational basis analysis, the labeling
requirement is rationally related to the State’s “self-evident
purpose of communicating to consumers and store clerks that
the video game cannot be legally purchased by anyone under
18 years of age.”
[15] Generally, “freedom of speech prohibits the govern-
ment from telling people what they must say.” Rumsfeld v.
Forum for Academic & Institutional Rights, Inc., 547 U.S. 47,
61 (2006); see also United States v. United Foods, Inc., 533
U.S. 405, 410 (2001); Riley v. Nat’l Fed’n of the Blind, 487
U.S. 781, 795 (1988). Commercial speech, however, is gener-
ally accorded less protection than other expression. See
United Foods, Inc., 533 U.S. at 409. The Court has upheld
compelled commercial speech where the state required inclu-
sion of “purely factual and uncontroversial information” in
advertising. See Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626, 651 (1985) (upholding state’s requirement that
attorney include in his advertisements a disclosure that clients
may be responsible for litigation costs); see also United States
v. Schiff, 379 F.3d 621, 630-31 (9th Cir. 2004) (holding that
the government could compel website operator to post factual
information about potential criminal liability if patrons used
website to evade taxes); Nat’l Elec. Mfrs. Ass’n v. Sorrell, 272
F.3d 104, 113-15 (2d Cir. 2001) (upholding state labeling law
that required manufacturers of mercury-containing products to
disclose on packaging factual and uncontroversial information
about the disposal of mercury-containing products). Com-
pelled disclosures, justified by the need to “dissipate the pos-
sibility of consumer confusion or deception,” are permissible
if the “disclosure requirements are reasonably related to the
1966 VIDEO SOFTWARE v. SCHWARZENEGGER
State’s interest in preventing deception of customers.”
Zauderer, 471 U.S. at 651.19
[16] Ordinarily, we would initially decide whether video
game packaging constitutes separable commercial speech or
commercial speech that is “inextricably intertwined” with oth-
erwise fully-protected speech. See Riley, 487 U.S. at 795-96
(stating that “[i]t is not clear that . . . speech is necessarily
commercial whenever it relates to [a] person’s financial moti-
vation for speaking”). That analysis would direct what level
of scrutiny to apply to the labeling requirement. However, we
need not decide that question because the labeling require-
ment fails even under the factual information and deception
prevention standards set forth in Zauderer.20 Our holding
above, that the Act’s sale and rental prohibition is unconstitu-
tional, negates the State’s argument that the labeling provision
only requires that video game retailers carry “purely factual
and uncontroversial information” in advertising. Zauderer,
471 U.S. at 651. Unless the Act can clearly and legally char-
acterize a video game as “violent” and not subject to First
Amendment protections, the “18” sticker does not convey fac-
tual information.
19
Heightened scrutiny may apply, however, if the commercial speech is
“inextricably intertwined” with otherwise fully-protected speech, e.g.,
political speech, charitable solicitations. Riley, 487 U.S. at 796; Cal-
Almond, Inc. v. U.S. Dep’t of Agric., 14 F.3d 429, 436 (9th Cir. 1993).
20
We note that on similar facts, the Seventh Circuit, in Entertainment
Software Association v. Blagojevich, struck down a statute’s requirement
that video game retailers affix a four square-inch sticker reading “18” on
any video game the state defined as “sexually explicit.” 469 F.3d 641,
651-52 (7th Cir. 2006). The court applied strict scrutiny because, in its
view, the label did not concern the disclosure of “purely factual”
information—the label reflected the state’s opinion that the product con-
tained material that the state deemed “sexually explicit” and communi-
cated a “subjective and highly controversial message.” Id. at 652. We do
not adopt the Blagojevich court’s approach here because it is not clear
what authority supported its application of strict scrutiny, and we conclude
that the labeling requirement here is invalid under a less-strict review stan-
dard.
VIDEO SOFTWARE v. SCHWARZENEGGER 1967
Moreover, the labeling requirement fails Zauderer’s ratio-
nal relationship test, which asks if the “disclosure require-
ments are reasonably related to the State’s interest in
preventing deception of customers.” Id. at 651. Our determi-
nation that the Act is unconstitutional eliminates the alleged
deception that the State’s labeling requirement would purport-
edly prevent: the misleading of consumers and retailers by the
ESRB age ratings that already appear on the video games’
packaging. Since the Act is invalid and, as a result, there is
no state-mandated age threshold for the purchase or rental of
video games, there is no chance for deception based on the
possibly conflicting ESRB rating labels. In fact, the State’s
mandated label would arguably now convey a false statement
that certain conduct is illegal when it is not, and the State has
no legitimate reason to force retailers to affix false informa-
tion on their products. See Hatch, 443 F. Supp. 2d at 1072,
aff’d on other grounds, Swanson, 519 F.3d 768.
VII.
We decline the State’s invitation to apply the variable
obscenity standard from Ginsberg to the Act because we do
not read Ginsberg as reaching beyond the context of restric-
tions on sexually-explicit materials or as creating an entirely
new category of expression—speech as to minors—excepted
from First Amendment protections. As the Act is a content
based regulation, it is subject to strict scrutiny and is pre-
sumptively invalid. Under strict scrutiny, the State has not
produced substantial evidence that supports the Legislature’s
conclusion that violent video games cause psychological or
neurological harm to minors. Even if it did, the Act is not nar-
rowly tailored to prevent that harm and there remain less-
restrictive means of forwarding the State’s purported interests,
such as the improved ESRB rating system, enhanced educa-
tional campaigns, and parental controls. Finally, even if the
Act’s labeling requirement affects only commercial speech in
the form of video game packaging, that provision constitutes
impermissibly compelled speech because the compelled label
1968 VIDEO SOFTWARE v. SCHWARZENEGGER
would not convey purely factual information. Accordingly,
the district court’s grant of summary judgment to Plaintiffs
and denial of the State’s cross-motion for summary judgment
is AFFIRMED.