Article: Teens, Porn, and Video Games — Is it Time to Rethink Ginsberg?

The Supreme Court has granted certiorari in Schwarzenegger v. Entertainment Merchants Association, a Ninth Circuit decision that struck down, on First Amendment grounds, a California statute prohibiting the sale or rental of certain “violent video
games” to minors. In finding the California statute unconstitutional, the Court of Appeals distinguished Ginsberg v. New York, the 1968 case in which the Supreme Court first suggested that First Amendment protections of speech may apply less strictly to minors. The reason that the Ninth Circuit gave was that the Ginsberg Court had “placed the magazines at issue within a sub-category of obscenity–obscenity as to minors,” noting that the “Supreme Court has carefully limited obscenity to sexual content.” However, this explanation does not provide any obvious policy reason for differentiating between allegedly harmful violent materials and allegedly harmful sex-themed materials. Because the case is highly problematic precedent, the Supreme Court should rethink Ginsberg when deciding Entertainment Merchants.

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