Essay On Law: Brown Vs Merchant Association

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Brown Versus Merchant Association

Respondents in the case, representing the companies in the e video game and software industries filed the pre-enforcement application aiming at barring the sale and rental of violent games to the minors (Gardiner, 51). The district court of California concluded that the act was in violation of the e first amendment and enjoined in the enforcement. The ninth circuit of the Supreme Court affirmed the decision of the district court. The decision determined that the act was not in comport with the requirements of the first amendment.

Video games are qualified under the first amendment protection. The classification of the video games under this category arose from the fact that the video game communicate idea via literary means that are distinctive to the media. Therefore, they are in their own way literary works. The requirements in the communication of do not apply selectively according to the communication media.

Therefore, the videos are means of expressing ideas and they should not be stifled. The expression of the ideas stand irrespective of the nature of the ideas. Therefore, the freedom of expression has to prevail regardless of the content being communicated (Lerner and Lerner, 43). The government was without its boundaries when it opted for the restriction of the communication of the idea based on the content.

The freedom of expression has to prevail regardless of the nature of the content. However, the content that is expressed in the communication briefs has to be in agreement with the exception rules (Lerner and Lerner, 43). The historical limitations of the freedom of expression include communication of obscene words, incitement of any words that are bound to increase the chances of the people fighting.

However, the legislature was not bound to come up with new limitations of the nature of the content that one can communicate using the established and traditional media as well as the emerging media such as the gaming platforms. Valuation of a certain category of communication against its social costs and punishing it was not a requirement.
Contrary to the previous precedents on the matter, the California act did not adjust the boundaries of the existing categories of unprotected speech. Therefore, it did not lead to the protection of the application of the definition of adult content to minors.

On the contrary, the law sought to bring about an entirely new category of legislation barring the communication. Content-based regulation is set in the first amendment. Therefore, the content of the new and emerging media still has to be applied within the context of the previous laws and precedents. Development of the new legislation permissible to the children was faulty since the application of the same was not widespread.

Development of the legislation was unprecedented and ill advised. The trend and convention in the United States was not in any way characterized with the limitation of access to content depicting violent actions (Epstein, 46). The government does not restrict the access to content depicting violence since it is not part of the first amendment and any other judicial precedent. The definition of violent depictions does not warrant the application of discriminatory legislation. Violent depictions are not necessarily depictions of adult content.

Additionally, the claim that the videos have some interactive aspects, which led to presentation of special issues, was also misadvised. The argument that the participation in the violent video games is an undermining as pact on the behavior is unpersuasive. The outcome of a person’s behavior depends on the myriad of factors most of which span across a wide categorization.

The act imposes restrictions on the content portrayed. This restriction is a violation of the set tenets of the first amendment. If the arguments are purportedly based on the goal of protecting the minors from unsavory content, it must be drawn to serve the interests of the government. However, the California act is invalid since it does not pass the scrutiny. The compelling government interest is absent or minimally covered hence the lack of the validity of the argument of the protection of the children and teenage minors from the content espousing accommodation of violence.

The act cannot meet the standard. The main foundation of the argument is that there are psychological effects that arise from the continued viewership and indulgence with the violent games. The psychological studies do not point at the real casual relationships between the exposure and tendency of violence.

The findings in the field point at different possible explanations of violence behavior. Therefore, apportioning the blame primarily on the exposure to violent games is inconclusive and misleading (Gardiner, 42). Evidenced studies indicate possibility of the relationship. However, they also acknowledge that there are other factors that may be in play in the development of the violent tendencies.
In the event that there are some connection between the violence and the development of the leaning among the minors, there connection or degree of causality is minimal. The effects of exposure to the violence are also indistinguishable from other causes such as the exposure to other violent media such as cartoons. The arguments also do not accommodate the other causal factors that are ingrained in the genetic and nurture environment.

The state refused to restrict other media that also displays the violence levels that the law seeks to curb (Epstein, 56). The move to pass the law is indicative of the under inclusive nature of the act. Common media depictions that qualify as violence under the criteria include the Saturday morning cartoons that also display domination using imagery of violence.

The allowance of the cartoons, normally displayed in the conventional media, points to the double standards in the constraining freedom of speech. Essentially, the law seeks to stifle a certain viewpoint and let another rein irrespective of the similarity in the content. Double standards in the application of the constraints point towards the insincerity of the state in the pursuit of the standpoint (Lerner and Lerner, 43).

The other foundation of the argument of the state to come up with the regulation is the need of the parents to restrict the access to different content availed by the gaming companies. The assertion that the need is substantial is not reflected in the argument and ex-ante surveys. Additionally, the restriction of the content that a person views is dependent on the parent. What is permissible in a certain home is not applicable in another.

Therefore, the universality of the restriction and urgency of the legislation is unfounded and largely misguided. Essentially, the state is in pursuit of a restriction on the choices of the parents when it comes to the upbringing of their children. From one perspective, there is a mandatory but salient coercion by the government to follow a certain course in matters relating to the upbringing of the children. The expression of the values upheld by the parent is not manifested in the child.

The mandatory exclusion of access of the minors to the video content is belated. The video gaming industry has set its objective rating system that focuses on the development of the right content according to the age. The game rating system is by large based on the efficacy of the different ages that may be using the content. Therefore, the internal control mechanisms installed by the gaming companies are sufficient in the development of the control mechanisms. The parents can use the ratings in the control of the content visible to their children.

The move by the video companies to form their internally developed ratings also points to their goodwill. The gaming companies send a silent message that they are aware of the concerns over the effect of their games on the psychology. Therefore, they have taken the initiative to control the access to some content. The industry seeks the inclusion of the input of the parents in the enactment of the internal control (Gardiner, 63). Therefore, the industry has done enough in the protection of the children that are supposed to be using the content.

The legislation is unwarranted in this case since the goodwill portrayed in the industrywide practice is enough in the protection of the viewers and users of the content. Interactions between the players may lead to the moral degradation of the minors since the heat of the moment could reduce the logical and moral thinking. The restriction of the content access is not a guarantee that the moral degradation and tendencies towards violence will stop.

Counter argument

The state of California was focused on the development of a society that was morally upright in the sense of the tendency of the future generation towards violence (Epstein, 14). Therefore, the motivation behind the legislation is correct and well founded. The slight evidence that the exposure to violent video games would develop adverse violent behavior ought to be sufficient basis for the enactment of the law. Failure of the state to pass the law can translate into the veto of development of violent tendencies in the state. Therefore, the state had viable motivations behind drafting of the law.

Discontent sets in with the assumption that the state was applying selective control of the content. The main argument against the legislation was that it was not inclusive. This argument is not based on the merit of the content. Therefore, the gaming associations were aware of the possible effects hence the rating system. It is indicative that the arguments were viable and applicable in the context.

The other argument is based on the premise that the gaming culture leads to the development of the violent behavior as evidence by the scientific studies. Despite the variability in findings, there is enough basis to pursue the gaming law (James, 65). Passing of the pre enforcement motion sends a message that the commercial interests are superior to the rights and the wellbeing of the people. The fact that the games increase the chances of the members being violent meets the requirement for limitation under the first amendment. Any communication that increases tendency to fight qualifies to be limited. Therefore, the games’ distribution ought to be constrained. Basing the argument on the selectiveness of the law is faulty since the wrongs in the control of the main stream media do not have to overspill into the control of the gaming industry.

The judgement was founded on the assumption that the law was selective. Therefore, the inclusion of the rest of the media players in the restriction could make it correct. It should be designed to reduce the exposure to the harmful content irrespective of the channel that is used to convey the material.

The first amendment requires the government to restrict any instance of expression that infringing on the rights of the other people or endangering them. Whenever the minors are exposed to the video games, the characters are abstract such that there is no chance of the minors copying the tactics learnt and applying them in real life.

The nurturing environment of the children and other minors has a large bearing on their outcome. The law is informed by these aspects (Epstein, 45). The continued exposure of children to violence leads to the situation whereby they indicate high tolerance for violence. Reduction of the exposure is one of the proposed ways of reducing the effects.

The move to provide ratings is part of the requirements by the industry practice. However, the level of sincerity in the depiction is comparatively lower (Gardiner, 77). The organizations that engage in the practice of rating their games are just action in compliance to the industry standards. In another scenario, they will be less inclined to accept them.

Rating of the games is also part of the public relations campaigns conducted by the company. The depiction of the company as a compliant member of the business environment is important since it paints it in the good light. Therefore, the main motivation is not to help the parent determine the right games for their children but to paint the company in a different light and make it more appealing.


Epstein, Adam. Sports Law. Clifton Park, NY: Thomson/Delmar Learning, 2003. Print.
Gardiner, Simon. Sports Law. London: Cavendish Pub., 2006. Print.
James, Mark. Sports Law. Basingstoke: Palgrave Macmillan, 2010. Print.
Lerner, Alicia Cafferty, and Adrienne Wilmoth Lerner. Freedom Of Expression. Detroit: Greenhaven Press, 2009. Print.