Last week, the Supreme Court issued its much anticipated decision in the Brown v. Entertainment Merchant’s Association case.  Justice Scalia, writing for Justices Kennedy, Ginsburg, Sotomayor, and Kagan, held that a California law restricting the sale or rental of violent video games to minors, and mandating “18” labels for such games, violates the First Amendment.

The decision is not only a resounding victory for the entertainment software industry, but its views on the protection of minors under the First Amendment could have a profound impact on future legislative efforts as well.  In his dissent, Justice Thomas argued that the First Amendment does not include the right to speak to minors without obtaining the prior consent of their parents or guardians.  This approach supports many of the children’s privacy laws that are on the books today.  The majority soundly rejected this approach, however, stating that laws that prevent children from hearing or saying anything without their parents’ prior consent “do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto.”  

 

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Photo of Lindsey Tonsager Lindsey Tonsager

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the…

Lindsey Tonsager helps national and multinational clients in a broad range of industries anticipate and effectively evaluate legal and reputational risks under federal and state data privacy and communications laws.

In addition to assisting clients engage strategically with the Federal Trade Commission, the U.S. Congress, and other federal and state regulators on a proactive basis, she has experience helping clients respond to informal investigations and enforcement actions, including by self-regulatory bodies such as the Digital Advertising Alliance and Children’s Advertising Review Unit.

Ms. Tonsager’s practice focuses on helping clients launch new products and services that implicate the laws governing the use of endorsements and testimonials in advertising and social media, the collection of personal information from children and students online, behavioral advertising, e-mail marketing, artificial intelligence the processing of “big data” in the Internet of Things, spectrum policy, online accessibility, compulsory copyright licensing, telecommunications and new technologies.

Ms. Tonsager also conducts privacy and data security diligence in complex corporate transactions and negotiates agreements with third-party service providers to ensure that robust protections are in place to avoid unauthorized access, use, or disclosure of customer data and other types of confidential information. She regularly assists clients in developing clear privacy disclosures and policies―including website and mobile app disclosures, terms of use, and internal social media and privacy-by-design programs.