Marketing Community Wins Second Major Victory in U.S. Supreme Court

June 27, 2011; Washington, D.C. - The marketing community has won a second important victory in the U.S. Supreme Court within a week.  Today, in the case of Brown v. Entertainment Merchants Association No.08-1448, the Court struck down a California law that restricted the sale or rental of violent video games to minors, holding that the law violates the First Amendment.  The ANA (Association of National Advertisers) and a broad coalition of media and entertainment groups had filed a "friend of the court" brief with the Court last year urging the Court to strike down the California law.  Last week, in the case of Sorrell v. IMS Health, Inc. No. 10-779, the Supreme Court struck down a Vermont law that restricted the use of prescriber histories for the purposes of marketing pharmaceutical products to physicians.  The ANA had also filed a "friend of the court" brief in that case. 

Dan Jaffe, Executive Vice President of Government Relations for the ANA, stated: "We are very pleased that the Supreme Court struck down the California law.  We agree that children should be protected from inappropriate material, but that law was far too sweeping.  We joined in the amicus brief in this case to respond to the growing effort of policymakers across the country to 'childproof' ever widening categories of speech in our society.  The Supreme Court repeatedly has held that speech that is perfectly lawful for adults cannot be overly restricted under the guise of protecting children and they reaffirmed that in today's decision."

Joining the ANA in the brief were the American Booksellers Foundation for Free Expression, the Association of American Publishers, the Freedom to Read Foundation, the National Association of Recording Merchandisers, the Recording Industry Association of America, the Amusement & Music Operators Association, PEN Center USA and the Recording Academy.

Writing for the majority in the case, Justice Scalia stated: "No doubt a State possesses legitimate power to protect children from harm (citations omitted), but that does not include a free-floating power to restrict the ideas to which children may be exposed. . . Even where the protection of children is the object, the constitutional limits on governmental action apply."

Jaffe stated: "This case also has important implications for the issue of the impact of various media on children, something the FCC is presently examining.  It is ironic that this case was pursued by former California Governor Schwarzenegger, whose career was propelled by a series of movies that contained substantial violent content and which spawned video games based on them."

Jaffe concluded:  "The First Amendment is the ultimate safety net for all marketers when any government seeks to ban or restrict advertising.  The ANA has been very active in the courts for several decades to preserve those First Amendment protections.  The two decisions announced by the Supreme Court in the last week will be very helpful as we continue our efforts in a broad range of venues to defend the rights of marketers to communicate with consumers."

The industry comments are available here.


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