Sol. Gen. Erwin N. Griswold, for the United States.

          Alexander M. Bickel, New Haven, Conn., for the New York Times.

          William R. Glendon, Washington, D.C., for the Washington Post Co.

Page 714

           PER CURIAM.

          We granted certiorari, 403 U.S. 942, 943, 91 S.Ct. 2270, 2271, 29 L.Ed.2d 853 (1971) in these cases in which the United States seeks to enjoin the New York Times and the Washington Post from publishing the contents of a classified study entitled 'History of U.S. Decision-Making Process on Viet Nam Policy.'

          'Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.' Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963); see also Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931). The Government 'thus carries a heavy burden of showing justification for the imposition of such a restraint.' Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 (1971). The District Court for the Southern District of New York in the New York Times case, 328 F.Supp. 324, and the District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit, 446 F.2d 1327, in the Washington Post case held that the Government had not met that burden. We agree.

          The judgment of the Court of Appeals for the District of Columbia Circuit is therefore affirmed. The order of the Court of Appeals for the Second Circuit is reversed, 444 F.2d 544, and the case is remanded with directions to enter a judgment affirming the judgment of the District Court for the Southern District of New York. The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.

          So ordered.

          Judgment of the Court of Appeals for the District of Columbia Circuit affirmed; order of the Court of Appeals for the Second Circuit reversed and case remanded with directions.

           Mr. Justice BLACK, with whom Mr. Justice DOUGLAS joins, concurring. DP I adhere to the view that the Government's case against the Washington Post should have been dismissed and that the injunction against the New York Times should have been vacated without oral argument when the cases were first presented to this Court. I believe

Page 715

that every moment's continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and continuing violation of the First Amendment. Furthermore, after oral argument, I agree completely that we must affirm the judgment of the Court of Appeals for the District of Columbia Circuit and reverse the judgment of the Court of Appeals for the Second Circuit for the reasons stated by my Brothers DOUGLAS and BRENNAN. In my view it is unfortunate that some of my Brethren are apparently willing to hold that the publication of news may sometimes be enjoined. Such a holding would make a shambles of the First Amendment.

          Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights, including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the founding of the Republic, the federal courts are asked to hold that the First Amendment does not mean what it says, but rather means that the Government can halt the publication of current news of vital importance to the people of this country.

          In seeking injunctions against these newspapers and in its presentation to the Court, the Executive Branch seems to have forgotten the essential purpose and history of the First Amendment. When the Constitution was adopted, many people strongly opposed it because the document contained no Bill of Rights to safeguard certain basic freedoms.¹ They especially feared that the

Page 716

new powers granted to a central government might be interpreted to permit the government to curtail freedom of religion, press, assembly, and speech. In response to an overwhelming public clamor, James Madison offered a series of amendments to satisfy citizens that these great liberties would remain safe and beyond the power of government to abridge. Madison proposed what later became the First Amendment in three parts, two of which are set out below, and one of which proclaimed: 'The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable.'² The amendments were offered to curtail and restrict the general powers granted to the Executive, Legislative, and Judicial Branches two years before in the original Constitution. The Bill of Rights changed the original Constitution into a new charter under which no branch of government could abridge the people's freedoms of press, speech, religion, and assembly. Yet the Solicitor General argues and some members of the Court appear to agree that the general powers of the Government adopted in the original Constitution should be interpreted to limit and restrict the specific and emphatic guarantees of the Bill of Rights adopted later. I can imagine no greater perversion of history. Madison and the other Framers of the First Amendment, able men

Page 717

that they were, wrote in language they earnestly believed could never be misunderstood: 'Congress shall make no law * * * abridging the freedom * * * of the press * * *.' Both the history and language of the First Amendment support the view that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints.

          In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

          The Government's case here is based on premises entirely different from those that guided the Framers of the First Amendment. The Solicitor General has carefully and emphatically stated:

          'Now, Mr. Justice (BLACK), your construction of * * * (the First Amendment) is well known, and I certainly respect it. You say that no law means no law, and that should be obvious. I can only

Page 718

          say, Mr. Justice, that to me it is equally obvious that 'no law' does not mean 'no law', and I would seek to persuade the Court that that is true. * * * (T)here are other parts of the Constitution that grant powers and responsibilities to the Executive, and * * * the First Amendment was not intended to make it impossible for the Executive to function or to protect the security of the United States.'³

          And the Government argues in its brief that in spite of the First Amendment, '(t)he authority of the Executive Department to protect the nation against publication of information whose disclosure would endanger the national security stems from two interrelated sources: the constitutional power of the President over the conduct of foreign affairs and his authority as Commander-in-Chief.'⁴

          In other words, we are asked to hold that despite the First Amendment's emphatic command, the Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current news and abridging freedom of the press in the name of 'national security.' The Government does not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously farreaching contention that the courts should take it upon themselves to 'make' a law abridging freedom of the press in the name of equity, presidential power and national security, even when the representatives of the people in Congress have adhered to the command of the First Amendment and refused to make such a law.⁵ See concurring opinion of Mr. Justice DOUGLAS,

Page 719

post, at 721—722. To find that the President has 'inherent power' to halt the publication of news by resort to the courts would wipe out the First Amendment and destroy the fundamental liberty and security of the very people the Government hopes to make 'secure.' No one can read the history of the adoption of the First Amendment without being convinced beyond any doubt that it was injunctions like those sought here that Madison and his collaborators intended to outlaw in this Nation for all time.

          The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation and the abuses of the English and Colonial Governments, sought to give this new society strength and security by providing that freedom of speech, press, religion, and assembly should not be abridged. This thought was eloquently expressed in 1937 by Mr. Chief Justice Hughes—great man and great Chief Justice that he was when the Court held a man could not be punished for attending a meeting run by Communists.

          'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free

Page 720

          assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.'⁶

           Mr. Justice DOUGLAS, with whom Mr. Justice BLACK joins, concurring .

          While I join the opinion of the Court I believe it necessary to express my views more fully.

          It should be noted at the outset that the First Amendment provides that 'Congress shall make no law * * * abridging the freedom of speech, or of the press.' That leaves, in my view, no room for governmental restraint on the press.¹

          There is, moreover, no statute barring the publication by the press of the material which the Times and the Post seek to use. Title 18 U.S.C. § 793(e) provides that '(w)hoever having unauthorized possession of, access to, or control over any document, writing * * * or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates * * * the same to any person not entitled to receive it * * * (s)hall be fined

Page 721

not more than $10,000 or imprisoned not more than ten years, or both.'

          The Government suggests that the word 'communicates' is broad enough to encompass publication.

          There are eight sections in the chapter on espionage and censorship, §§ 792—799. In three of those eight 'publish' is specifically mentioned: § 794(b) applies to 'Whoever, in time of war, with intent that the same shall be communicated to the enemy, collects, records, publishes, or communicates * * * (the disposition of armed forces).'

          Section 797 applies to whoever 'reproduces, publishes, sells, or gives away' photographs of defense installations.

          Section 798 relating to cryptography applies to whoever: 'communicates, furnishes, transmits, or otherwise makes available * * * or publishes' the described materials.² (Emphasis added.)

          Thus it is apparent that Congress was capable of and did distinguish between publishing and communication in the various sections of the Espionage Act.

          The other evidence that § 793 does not apply to the press is a rejected version of § 793. That version read: 'During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the

Page 722

enemy.' 55 Cong.Rec. 1763. During the debates in the Senate the First Amendment was specifically cited and that provision was defeated. 55 Cong.Rec. 2167.

          Judge Gurfein's holding in the Times case that this Act does not apply to this case was therefore preeminently sound. Moreover, the Act of September 23, 1950, in amending 18 U.S.C. § 793 states in § 1(b) that:

          'Nothing in this Act shall be construed to authorize, require, or establish military or civilian censorship or in any way to limit or infringe upon freedom of the press or of speech as guaranteed by the Constitution of the United States and no regulation shall be promulgated hereunder having that effect.' 64 Stat. 987.

          Thus Congress has been faithful to the command of the First Amendment in this area.

          So any power that the Government possesses must come from its 'inherent power.'

          The power to wage war is 'the power to wage war successfully.' See Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774. But the war power stems from a declaration of war. The Constitution by Art. I, § 8, gives Congress, not the President, power '(t)o declare War.' Nowhere are presidential wars authorized. We need not decide therefore what leveling effect the war power of Congress might have.

          These disclosures³ may have a serious impact. But that is no basis for sanctioning a previous restraint on

Page 723

the press. As stated by Chief Justice Hughes in Near v. Minnesota ex rel. Olson, 283 U.S. 697, 719—720, 51 S.Ct. 625, 632, 75 L.Ed. 1357:

          'While reckless assaults upon public men, and efforts to bring obloquy upon those who are endeavoring faithfully to discharge official duties, exert a baleful influence and deserve the severest condemnation in public opinion, it cannot be said that this abuse is greater, and it is believed to be less, than that which characterized the period in which our institutions took shape. Meanwhile, the administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct.'

          As we stated only the other day in Organization for a Better Austin v. Keefe, 402 U.S. 415, 419, 91 S.Ct. 1575, 1578, 29 L.Ed.2d 1 '(a)ny prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity.'

          The Government says that it has inherent powers to go into court and obtain an injunction to protect the national interest, which in this case is alleged to be national security.

          Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357, repudiated that expansive doctrine in no uncertain terms.

          The dominant purpose of the First Amendment was to prohibit the widespread practice of governmental sup-

Page 724

pression of embarrassing information. It is common knowledge that the First Amendment was adopted against the widespread use of the common law of seditious libel to punish the dissemination of material that is embarrassing to the powers-that-be. See T. Emerson, The System of Freedom of Expression, c. V (1970); Z. Chafee, Free Speech in the United States, c. XIII (1941). The present cases will, I think, go down in history as the most dramatic illustration of that principle. A debate of large proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure of the contents of the present documents. The latter are highly relevant to the debate in progress.

          Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open debate and discussion of public issues are vital to our national health. On public questions there should be 'uninhibited, robust, and wide-open' debate. New York Times Co. v. Sullivan, 376 U.S. 254, 269—270, 84 S.Ct. 710, 720—721, 11 L.Ed.2d 686.

          I would affirm the judgment of the Court of Appeals in the Post case, vacate the stay of the Court of Appeals in the Times case and direct that it affirm the District Court.

          The stays is these cases that have been in effect for more than a week constitute a flouting of the principles of the First Amendment as interpreted in Near v. Minnesota ex rel. Olson.

           Mr. Justice BRENNAN, concurring.

          I write separately in these cases only to emphasize what should be apparent: that our judgments in the present cases may not be taken to indicate the propriety, in the future, of issuing temporary stays and restraining

Page 725

orders to block the publication of material sought to be suppressed by the Government. So far as I can determine, never before has the United States sought to enjoin a newspaper from publishing information in its possession. The relative novelty of the questions presented, the necessary haste with which decisions were reached, the magnitude of the interests asserted, and the fact that all the parties have concentrated their arguments upon the question whether permanent restraints were proper may have justified at least some of the restraints heretofore imposed in these cases. Certainly it is difficult to fault the several courts below for seeking to assure that the issues here involved were preserved for ultimate review by this Court. But even if it be assumed that some of the interim restraints were proper in the two cases before us, that assumption has no bearing upon the propriety of similar judicial action in the future. To begin with, there has now been ample time for reflection and judgment; whatever values there may be in the preservation of novel questions for appellate review may not support any restraints in the future. More important, the First Amendment stands as an absolute bar to the imposition of judicial restraints in circumstances of the kind presented by these cases.

          The error that has pervaded these cases from the outset was the granting of any injunctive relief whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these cases has been that publication of the material sought to be enjoined 'could,' or 'might,' or 'may' prejudice the national interest in various ways. But the First Amendment tolerates absolutely no prior judicial restraints of the press predicated upon surmise or conjecture that untoward consequences

Page 726

may result.^* Our cases, it is true, have indicated that there is a single, extremely narrow class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our cases have thus far indicated that such cases may arise only when the Nation 'is at war,' Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919), during which times '(n)o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.' Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931). Even if the present world situation were assumed to be tantamount to a time of war, or if the power of presently available armaments would justify even in peacetime the suppression of information that would set in motion a nuclear holocaust, in neither of these actions has the Government presented or even alleged that publication of items from or based upon the material at issue would cause the happening of an event of that nature. '(T)he chief purpose of (the First Amendment's) guaranty (is) to prevent previous restraints upon publication.' Near v. Minnesota ex rel. Olson, supra, at 713, 51 S.Ct., at 630. Thus, only governmental allegation and proof that publication must inevitably, di-

Page 727

rectly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order. In no event may mere conclusions be sufficient: for if the Executive Branch seeks judicial aid in preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny by the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the First Amendment—and not less so because that restraint was justified as necessary to afford the courts an opportunity to examine the claim more thoroughly. Unless and until the Government has clearly made out its case, the First Amendment commands that no injunction may issue.

           Mr. Justice STEWART, with whom Mr. Justice WHITE joins, concurring.

          In the governmental structure created by our Constitution, the Executive is endowed with enormous power in the two related areas of national defense and international relations. This power, largely unchecked by the Legislative¹ and Judicial² branches, has been pressed to the very hilt since the advent of the nuclear missile age. For better of for worse, the simple fact is that a

Page 728

President of the United States possesses vastly greater constitutional independence in these two vital areas of power than does, say, a prime minister of a country with a parliamentary form of government.

          In the absence of the governmental checks and balances present in other areas of our national life, the only effective restraint upon executive policy and power in the areas of national defense and international affairs may lie in an enlightened citizenry—in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware, and free most vitally serves the basic purpose of the First Amendment. For without an informed and free press there cannot be an enlightened people.

          Yet it is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident.

          I think there can be but one answer to this dilemma, if dilemma it be. The responsibility must be where the power is.³ If the Constitution gives the Executive

Page 729

a large degree of unshared power in the conduct of foreign affairs and the maintenance of our national defense, then under the Constitution the Executive must have the largely unshared duty to determine and preserve the degree of internal security necessary to exercise that power successfully. It is an awesome responsibility, requiring judgment and wisdom of a high order. I should suppose that moral, political, and practical considerations would dictate that a very first principle of that wisdom would be an insistence upon avoiding secrecy for its own sake. For when everything is classified, then nothing is classified, and the system becomes one to be disregarded by the cynical or the careless, and to be manipulated by those intent on self-protection or self-promotion. I should suppose, in short, that the hallmark of a truly effective internal security system would be the maximum possible disclosure, recognizing that secrecy can best be preserved only when credibility is truly maintained. But be that as it may, it is clear to me that it is the constitutional duty of the Executive—as a matter of sovereign prerogative and not as a matter of law as the courts know law—through the promulgation and enforcement of executive regulations, to protect

Page 730

the confidentiality necessary to carry out its responsibilities in the fields of international relations and national defense.

          This is not to say that Congress and the courts have no role to play. Undoubtedly Congress has the power to enact specific and appropriate criminal laws to protect government property and preserve government secrets. Congress has passed such laws, and several of them are of very colorable relevance to the apparent circumstances of these cases. And if a criminal prosecution is instituted, it will be the responsibility of the courts to decide the applicability of the criminal law under which the charge is brought. Moreover, if Congress should pass a specific law authorizing civil proceedings in this field, the courts would likewise have the duty to decide the constitutionality of such a law as well as its applicability to the facts proved.

          But in the cases before us we are asked neither to construe specific regulations nor to apply specific laws. We are asked, instead, to perform a function that the Constitution gave to the Executive, not the Judiciary. We are asked, quite simply, to prevent the publication by two newspapers of material that the Executive Branch insists should not, in the national interest, be published. I am convinced that the Executive is correct with respect to some of the documents involved. But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people. That being so, there can under the First Amendment be but one judicial resolution of the issues before us. I join the judgments of the Court.

           Mr. Justice WHITE, with whom Mr. Justice STEWART joins, concurring.

          I concur in today's judgments, but only because of the concededly extraordinary protection against prior re-

Page 731

straints enjoyed by the press under our constitutional system. I do not say that in no circumstances would the First Amendment permit an injunction against publishing information about government plans or operations.¹ Nor, after examining the materials the Government characterizes as the most sensitive and destructive, can I deny that revelation of these documents will do substantial damage to public interests. Indeed, I am confident that their disclosure will have that result. But I nevertheless agree that the United States has not satisfied the very heavy burden that it must meet to warrant an injunction against publication in these cases, at least in the absence of express and appropriately limited congressional authorization for prior restraints in circumstances such as these.

Page 732

          The Government's position is simply stated: The responsibility of the Executive for the conduct of the foreign affairs and for the security of the Nation is so basic that the President is entitled to an injunction against publication of a newspaper story whenever he can convince a court that the information to be revealed threatens 'grave and irreparable' injury to the public interest;² and the injunction should issue whether or not the material to be published is classified, whether or not publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of the circumstances by which the newspaper came into possession of the information.

          At least in the absence of legislation by Congress, based on its own investigations and findings, I am quite unable to agree that the inherent powers of the Executive and the courts reach so far as to authorize remedies having such sweeping potential for inhibiting publications by the press. Much of the difficulty inheres in the 'grave and irreparable danger' standard suggested by the United States. If the United States were to have judgment under such a standard in these cases, our decision would be of little guidance to other courts in other cases, for the material at issue here would not be available from the Court's opinion or from public records, nor would it be published by the press. Indeed, even today where we hold that the United States has not met its burden, the material remains sealed in court records and it is

Page 733

properly not discussed in today's opinions. Moreover, because the material poses substantial dangers to national interests and because of the hazards of criminal sanctions, a responsible press may choose never to publish the more sensitive materials. To sustain the Government in these cases would start the courts down a long and hazardous road that I am not willing to travel, at least without congressional guidance and direction.

          It is not easy to reject the proposition urged by the United States and to deny relief on its good-faith claims in these cases that publication will work serious damage to the country. But that discomfiture is considerably dispelled by the infrequency of prior-restraint cases. Normally, publication will occur and the damage be done before the Government has either opportunity or grounds for suppression. So here, publication has already begun and a substantial part of the threatened damage has already occurred. The fact of a massive breakdown in security is known, access to the documents by many unauthorized people is undeniable, and the efficacy of equitable relief against these or other newspapers to avert anticipated damage is doubtful at best.

          What is more, terminating the ban on publication of the relatively few sensitive documents the Government now seeks to suppress does not mean that the law either requires or invites newspapers or others to publish them or that they will be immune from criminal action if they do. Prior restraints require an unusually heavy justification under the First Amendment; but failure by the Government to justify prior restraints does not measure its constitutional entitlement to a conviction for criminal publication. That the Government mistakenly chose to proceed by injunction does not mean that it could not successfully proceed in another way.

          When the Espionage Act was under consideration in

Page 734

1917, Congress eliminated from the bill a provision that would have given the President broad powers in time of war to proscribe, under threat of criminal penalty, the publication of various categories of information related to the national defense.³ Congress at that time was unwilling to clothe the President with such far-reaching powers to monitor the press, and those opposed to this part of the legislation assumed that a necessary concomitant of such power was the power to 'filter out the news to the people through some man.' 55 Cong.Rec. 2008 (remarks of Sen. Ashurst). However, these same members of Congress appeared to have little doubt that newspapers would be subject to criminal prosecution if they insisted on publishing information of the type Congress had itself determined should not be revealed. Senator Ashurst, for example, was quite sure that the editor of such a newspaper 'should be punished if he did publish information as to the movements of the fleet, the troops, the aircraft, the location of powder factories, the location of defense works, and all that sort of thing.' Id., at 2009.⁴

Page 735

          The Criminal Code contains numerous provisions potentially relevant to these cases. Section 797⁵ makes it a crime to publish certain photographs or drawings of military installations. Section 798,⁶ also in precise language, proscribes knowing and willful publication of any classified information concerning the cryptographic sys-

Page 736

tems or communication intelligence activities of the United States as well as any information obtained from communication intelligence operations.⁷ If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they

Page 737

publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

          The same would be true under those sections of the Criminal Code casting a wider net to protect the national defense. Section 793(e)⁸ makes it a criminal act for any unauthorized possessor of a document 'relating to the national defense' either (1) willfully to communicate or cause to be communicated that document to any person not entitled to receive it or (2) willfully to retain the document and fail to deliver it to an officer of the United States entitled to receive it. The subsection was added in 1950 because pre-existing law provided no

Page 738

penalty for the unauthorized possessor unless demand for the documents was made.⁹ 'The dangers surrounding the unauthorized possession of such items are self-

Page 739

evident, and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand.' S.Rep.No. 2369, pt. 1, 81st Cong., 2d Sess., 9 (1950). Of course, in the cases before us, the unpublished documents have been demanded by the United States and their import has been made known at least to counsel for the newspapers involved. In Gorin v. United States, 312 U.S. 19, 28, 61 S.Ct. 429, 434, 85 L.Ed. 488 (1941), the words 'national defense' as used in a predecessor of § 793 were held by a unanimous Court to have 'a well understood connotation'—a 'generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness'—and to be 'sufficiently definite to apprise the public of prohibited activi-

Page 740

ties' and to be consonant with due process. 312 U.S., at 28, 61 S.Ct., at 434. Also, as construed by the Court in Gorin, information 'connected with the national defense' is obviously not limited to that threatening 'grave and irreparable' injury to the United States.¹⁰

          It is thus clear that Congress has addressed itself to the problems of protecting the security of the country and the national defense from unauthorized disclosure of potentially damaging information. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585—586, 72 S.Ct. 863, 865—866, 96 L.Ed. 1153 (1953); see also id., at 593—628, 72 S.Ct., at 888—928 (Frankfurter, J., concurring). It has not, however, authorized the injunctive remedy against threatened publication. It has apparently been satisfied to rely on criminal sanctions and their deterrent effect on the responsible as well as the irresponsible press. I am not, of course, saying that either of these newspapers has yet committed a crime or that either would commit a crime if it published all the material now in its possession. That matter must await resolution in the context of a criminal proceeding if one is instituted by the United States. In that event, the issue of guilt or innocence would be determined by procedures and standards quite different from those that have purported to govern these injunctive proceedings.

           Mr. Justice MARSHALL, concurring.

          The Government contends that the only issue in these cases is whether in a suit by the United States, 'the First Amendment bars a court from prohibiting a news-

Page 741

paper from publishing material whose disclosure would pose a 'grave and immediate danger to the security of the United States." Brief for the United States 7. With all due respect, I believe the ultimate issue in this case is even more basic than the one posed by the Solicitor General. The issue is whether this Court or the Congress has the power to make law.

          In these cases there is no problem concerning the President's power to classify information as 'secret' or 'top secret.' Congress has specifically recognized Presidential authority, which has been formally exercised in Exec. Order 10501 (1953), to classify documents and information. See, e.g., 18 U.S.C. § 798; 50 U.S.C. § 783.¹ Nor is there any issue here regarding the President's power as Chief Executive and Commander in Chief to protect national security by disciplining employees who disclose information and by taking precautions to prevent leaks.

          The problem here is whether in these particular cases the Executive Branch has authority to invoke the equity jurisdiction of the courts to protect what it believes to be the national interest. See In re Debs, 158 U.S. 564, 584, 15 S.Ct. 900, 906, 39 L.Ed. 1092 (1895). The Government argues that in addition to the inherent power of any government to protect itself, the President's power to conduct foreign affairs and his position as Commander in Chief give him authority to impose censorship on the press to protect his ability to deal effectively with foreign nations and to conduct the military affairs of the country. Of course, it is beyond cavil that the President has broad powers by virtue of his primary responsibility for the conduct of our foreign affairs and his position as Commander in Chief. Chicago & Southern Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568 (1948); Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 1382, 87 L.Ed. 1774 (1943); United States v. Curtiss-

Page 742

Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936).² And in some situations it may be that under whatever inherent powers the Government may have, as well as the implicit authority derived from the President's mandate to conduct foreign affairs and to act as Commander in Chief, there is a basis for the invocation of the equity jurisdiction of this Court as an aid to prevent the publication of material damaging to 'national security,' however that term may be defined.

          It would, however, be utterly inconsistent with the concept of separation of powers for this Court to use its power of contempt to prevent behavior that Congress has specifically declined to prohibit. There would be a similar damage to the basic concept of these co-equal branches of Government if when the Executive Branch has adequate authority granted by Congress to protect 'national security' it can choose instead to invoke the contempt power of a court to enjoin the threatened conduct. The Constitution provides that Congress shall make laws, the President execute laws, and courts interpret laws. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). It did not provide for government by injunction in which the courts and the Executive Branch can 'make law' without regard to the action of Congress. It may be more convenient for the Executive Branch if it need only convince a judge to prohibit conduct rather than ask the Congress to pass a law, and it may be more convenient to enforce a contempt order than to seek a criminal conviction in a jury trial. Moreover, it may be considered politically wise to get a court to share the responsibility for arresting those who the Executive Branch has probable cause to believe are violating the law. But convenience and political considerations of the

Page 743

moment do not justify a basic departure from the principles of our system of government.

          In these cases we are not faced with a situation where Congress has failed to provide the Executive with broad power to protect the Nation from disclosure of damaging state secrets. Congress has on several occasions given extensive consideration to the problem of protecting the military and strategic secrets of the United States. This consideration has resulted in the enactment of statutes making it a crime to receive, disclose, communicate, withhold, and publish certain documents, photographs, instruments, appliances, and information. The bulk of these statutes is found in chapter 37 of U.S.C., Title 18, entitled Espionage and Censorship.³ In that chapter,

Page 744

Congress has provided penalties ranging from a $10,000 fine to death for violating the various statutes.

          Thus it would seem that in order for this Court to issue an injunction it would require a showing that such an injunction would enhance the already existing power of the Government to act. See People ex rel. Bennett v. Laman, 277 N.Y. 368, 14 N.E.2d 439 (1938). It is a traditional axiom of equity that a court of equity will not do a useless thing just as it is a traditional axiom that equity will not enjoin the commission of a crime. See Z. Chafee & E. Re, Equity 935—954 (5th ed. 1967); 1 H. Joyce, Injunctions §§ 58—60a (1909). Here there has been no attempt to make such a showing. The Solicitor General does not even mention in his brief whether the Government considers that there is probable cause to believe a crime has been committed or whether there is a conspiracy to commit future crimes.

          If the Government had attempted to show that there was no effective remedy under traditional criminal law, it would have had to show that there is no arguably applicable statute. Of course, at this stage this Court could not and cannot determine whether there has been a violation of a particular statute or decide the constitutionality of any statute. Whether a good-faith prosecution could have been instituted under any statute could, however, be determined.

Page 745

          At least one of the many statutes in this area seems relevant to these cases. Congress has provided in 18 U.S.C. § 793(e) that whoever 'having unauthorized possession of, access to, or control over any document, writing, code book, signal book * * * or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits * * * the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it * * * (s)hall be fined not more than $10,000 or imprisoned not more than ten years, or both.' Congress has also made it a crime to conspire to commit any of the offenses listed in 18 U.S.C. § 793(e).

          It is true that Judge Gurfein found that Congress had not made it a crime to publish the items and material specified in § 793(e). He found that the words 'communicates, delivers, transmits * * *' did not refer to publication of newspaper stories. And that view has some support in the legislative history and conforms with the past practice of using the statute only to prosecute those charged with ordinary espionage. But see 103 Cong.Rec. 10449 (remarks of Sen. Humphrey). Judge Gurfein's view of the Statute is not, however, the only plausible construction that could be given. See my Brother WHITE's concurring opinion.

          Even if it is determined that the Government could not in good faith bring criminal prosecutions against the New York Times and the Washington Post, it is clear that Congress has specifically rejected passing legislation that would have clearly given the President the power he seeks here and made the current activity of the newspapers unlawful. When Congress specifically declines to make conduct unlawful it is not for this Court

Page 746

to redecide those issues—to overrule Congress. See Youngtown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).

          On at least two occasions Congress has refused to enact legislation that would have made the conduct engaged in here unlawful and given the President the power that he seeks in this case. In 1917 during the debate over the original Espionage Act, still the basic provisions of § 793, Congress rejected a proposal to give the President in time of war or threat of war authority to directly prohibit by proclamation the publication of information relating to national defense that might be useful to the enemy. The proposal provided that:

          'During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, declare the existence of such emergency and, by proclamation, prohibit the publishing or communicating of, or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy. Whoever violates any such prohibition shall be punished by a fine of not more than $10,000 or by imprisonment for not more than 10 years, or both: Provided, that nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government or its representatives or the publication of the same.' 55 Cong.Rec. 1763.

          Congress rejected this proposal after war against Germany had been declared even though many believed that there was a grave national emergency and that the threat of security leaks and espionage was serious. The Executive Branch has not gone to Congress and requested that the decision to provide such power be reconsidered. In-

Page 747

stead, the Executive Branch comes to this Court and asks that it be granted the power Congress refused to give.

          In 1957 the United States Commission on Government Security found that '(a) irplane journals, scientific periodicals, and even the daily newspaper have featured articles containing information and other data which should have been deleted in whole or in part for security reasons.' In response to this problem the Commission proposed that 'Congress enact legislation making it a crime for any person willfully to disclose without proper authorization, for any purpose whatever, information classified 'secret' or 'top secret,' knowing, or having reasonable grounds to believe, such information to have been so classified.' Report of Commission on Government Security 619—620 (1957). After substantial floor discussion on the proposal, it was rejected. See 103 Cong.Rec. 10447—10450. If the proposal that Sen. Cotton championed on the floor had been enacted, the publication of the documents involved here would certainly have been a crime. Congress refused, however, to make it a crime. The Government is here asking this Court to remake that decision. This Court has no such power.

          Either the Government has the power under statutory grant to use traditional criminal law to protect the country or, if there is no basis for arguing that Congress has made the activity a crime, it is plain that Congress has specifically refused to grant the authority the Government seeks from this Court. In either case this Court does not have authority to grant the requested relief. It is not for this Court to fling itself into every breach perceived by some Government official nor is it for this Court to take on itself the burden of enacting law, especially a law that Congress has refused to pass.

          I believe that the judgment of the United States Court of Appeals for the District of Columbia Circuit should

Page 748

be affirmed and the judgment of the United States Court of Appeals for the Second Circuit should be reversed insofar as it remands the case for further hearings.

           Mr. Chief Justice BURGER, dissenting.

          So clear are the constitutional limitations on prior restraint against expression, that from the time of Near v. Minnesota ex rel. Olson, 283 U.S. 697, 51 S.Ct. 625, 75 L.Ed. 1357 (1931), until recently in Organization for a Better Austin v. Keefe, 402 U.S. 415, 91 S.Ct. 1575, 29 L.Ed.2d 1 (1971), we have had little occasion to be concerned with cases involving prior restraints against news reporting on matters of public interest. There is, therefore, little variation among the members of the Court in terms of resistance to prior restraints against publication. Adherence to this basic constitutional principle, however, does not make these cases simple ones. In these cases, the imperative of a free and unfettered press comes into collision with another imperative, the effective functioning of a complex modern government and specifically the effective exercise of certain constitutional powers of the Executive. Only those who view the First Amendment as an absolute in all circumstances—a view I respect, but reject—can find such cases as these to be simple or easy.

          These cases are not simple for another and more immediate reason. We do not know the facts of the cases. No District Judge knew all the facts. No Court of Appeals Judge knew all the facts. No member of this Court knows all the facts.

          Why are we in this posture, in which only those judges to whom the First Amendment is absolute and permits of no restraint in any circumstances or for any reason, are really in a position to act?

          I suggest we are in this posture because these cases have been conducted in unseemly haste. Mr. Justice HARLAN covers the chronology of events demonstrating the hectic pressures under which these cases have been processed and I need not restate them. The prompt

Page 749

settling of these cases reflects our universal abhorrence of prior restraint. But prompt judicial action does not mean unjudicial haste.

          Here, moreover, the frenetic haste is due in large part to the manner in which the Times proceeded from the date it obtained the purloined documents. It seems reasonably clear now that the haste precluded reasonable and deliberate judicial treatment of these cases and was not warranted. The precipitate action of this Court aborting trials not yet completed is not the kind of judicial conduct that ought to attend the disposition of a great issue.

          The newspapers make a derivative claim under the First Amendment; they denominate this right as the public 'right to know'; by implication, the Times asserts a sole trusteenship of that right by virtue of its journalistic 'scoop.' The right is asserted as an absolute. Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out in his aphorism concerning the right to shout 'fire' in a crowded theater if there was no fire. There are other exceptions, some of which Chief Justice Hughes mentioned by way of example in Near v. Minnesota ex rel. Olson. There are no doubt other exceptions no one has had occasion to describe or discuss. Conceivably such exceptions may be lurking in these cases and would have been flushed had they been properly considered in the trial courts, free from unwarranted deadlines and frenetic pressures. An issue of this importance should be tried and heard in a judicial atmosphere conducive to thoughtful, reflective deliberation, especially when haste, in terms of hours, is unwarranted in light of the long period the Times, by its own choice, deferred publication.¹

Page 750

          It is not disputed that the Times has had unauthorized possession of the documents for three to four months, during which it has had its expert analysts studying them, presumably digesting them and preparing the material for publication. During all of this time, the Times, presumably in its capacity as trustee of the public's 'right to know,' has held up publication for purposes it considered proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of 7,000 pages of complex material drawn from a vastly greater volume of material would inevitably take time and the writing of good news stories takes time. But why should the United States Government, from whom this information was illegally acquired by someone, along with all the counsel, trial judges, and appellate judges be placed under needless pressure? After these months of deferral, the alleged 'right to know' has somehow and suddenly become a right that must be vindicated instanter.

          Would it have been unreasonable, since the newspaper could anticipate the Government's objections to release of secret material, to give the Government an opportunity to review the entire collection and determine whether agreement could be reached on publication? Stolen or not, if security was not in fact jeopardized, much of the material could not doubt have been declassified, since it spans a period ending in 1968. With such an approach—one that great newspapers have in the past practiced and stated editorially to be the duty of an honorable press—the newspapers and Government might well have nar-

Page 751

rowed the area of disagreement as to what was and was not publishable, leaving the remainder to be resolved in orderly litigation, if necessary. To me it is hardly believable that a newspaper long regarded as a great institution in American life would fail to perform one of the basic and simple duties of every citizen with respect to the discovery or possession of stolen property or secret government documents. That duty, I had thought perhaps naively—was to report forthwith, to responsible public officers. This duty rests on taxi drivers, Justices, and the New York Times. The course followed by the Times, whether so calculated or not, removed any possibility of orderly litigation of the issues. If the action of the judges up to now has been correct, that result is sheer happenstance.²

          Our grant of the writ of certiorari before final judgment in the Times case aborted the trial in the District Court before it had made a complete record pursuant to the mandate of the Court of Appeals for the Second Circuit.

          The consequence of all this melancholy series of events is that we literally do not know what we are acting on. As I see it, we have been forced to deal with litigation concerning rights of great magnitude without an adequate record, and surely without time for adequate treatment either in the prior proceedings or in this Court. It is interesting to note that counsel, on both sides, in oral argument before this Court, were frequently unable to respond to questions on factual points. Not surprisingly they pointed out that they had been working literally 'around the clock' and simply were unable to review the documents that give rise to these cases and

Page 752

were not familiar with them. This Court is in no better posture. I agree generally with Mr. Justice HARLAN and Mr. Justice BLACKMUN but I am not prepared to reach the merits.³

          I would affirm the Court of Appeals for the Second Circuit and allow the District Court to complete the trial aborted by our grant of certiorari, meanwhile preserving the status quo in the post case. I would direct that the District Court on remand give priority to the Times case to the exclusion of all other business of that court but I would not set arbitrary deadlines.

          I should add that I am in general agreement with much of what Mr. Justice WHITE has expressed with respect to penal sanctions concerning communication or retention of documents or information relating to the national defense.

          We all crave speedier judicial processes but when judges are pressured as in these cases the result is a parody of the judicial function.

           Mr. Justice HARLAN, with whom THE CHIEF JUSTICE and Mr. Justice BLACKMUN join, dissenting.

          These cases forcefully call to mind the wise admonition of Mr. Justice Holmes, dissenting in Northern Securities Co. v. United States, 193 U.S. 197, 400—401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904):

          'Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their

Page 753

          real importance in shaping the law of the futture, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.'

          With all respect, I consider that the Court has been almost irresponsibly feverish in dealing with these cases.

          Both the Court of Appeals for the Second Circuit and the Court of Appeals for the District of Columbia Circuit rendered judgment on June 23. The New York Times' petition for certiorari, its motion for accelerated consideration thereof, and its application for interim relief were filed in this Court on June 24 at about 11 a.m. The application of the United States for interim relief in the Post case was also filed here on June 24 at about 7:15 p.m. This Court's order setting a hearing before us on June 26 at 11 a.m., a course which I joined only to avoid the possibility of even more peremptory action by the Court, was issued less than 24 hours before. The record in the Post case was filed with the Clerk shortly before 1 p.m. on June 25; the record in the Times case did not arrive until 7 or 8 o'clock that same night. The briefs of the parties were received less than two hours before argument on June 26.

          This frenzied train of events took place in the name of the presumption against prior restraints created by the First Amendment. Due regard for the extraordinarily important and difficult questions involved in these litigations should have led the Court to shun such a precipitate timetable. In order to decide the merits of these cases properly, some or all of the following questions should have been faced:

          1. Whether the Attorney General is authorized to bring these suits in the name of the United States. Com-

Page 754

pare In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895), with Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). This question involves as well the construction and validity of a singularly opaque statute—the Espionage Act, 18 U.S.C. § 793(e).

          2. Whether the First Amendment permits the federal courts to enjoin publication of stories which would present a serious threat to national security. See Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. 1357 (1931) (dictum).

          3. Whether the threat to publish highly secret documents is of itself a sufficient implication of national security to justify an injunction on the theory that regardless of the contents of the documents harm enough results simply from the demonstration of such a breach of secrecy.

          4. Whether the unauthorized disclosure of any of these particular documents would seriously impair the national security.

          5. What weight should be given to the opinion of high officers in the Executive Branch of the Government with respect to questions 3 and 4.

          6. Whether the newspapers are entitled to retain and use the documents notwithstanding the seemingly uncontested facts that the documents, or the originals of which they are duplicates, were purloined from the Government's possession and that the newspapers received them with knowledge that they had been feloniously acquired. Cf. Liberty Lobby, Inc. v. Pearson, 129 U.S.App.D.C. 74, 390 F.2d 489 (1967, amended 1968).

          7. Whether the threatened harm to the national security or the Government's possessory interest in the documents justifies the issuance of an injunction against publication in light of—

          a. The strong First Amendment policy against prior restraints on publication;

Page 755

          b. The doctrine against enjoining conduct in violation of criminal statutes; and

          c. The extent to which the materials at issue have apparently already been otherwise disseminated.

          These are difficult questions of fact, of law, and of judgment; the potential consequences of erroneous decision are enormous. The time which has been available to us, to the lower courts,^* and to the parties has been wholly inadequate for giving these cases the kind of consideration they deserve. It is a reflection on the stability of the judicial process that these great issues—as important as any that have arisen during my time on the Court—should have been decided under the pressures engendered by th torrent of publicity that has attended these litigations from their inception.

          Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court. Within the severe limitations imposed by the time constraints under which I have been required to operate, I can only state my reasons in telescoped form, even though in different circumstances I would have felt constrained to deal with the cases in the fuller sweep indicated above.

          It is a sufficient basis for affirming the Court of Appeals for the Second Circuit in the Times litigation to observe that its order must rest on the conclusion that because of the time elements the Government had not been given an adequate opportunity to present its case

Page 756

to the District Court. At the least this conclusion was not an abuse of discretion.

          In the Post litigation the Government had more time to prepare; this was apparently the basis for the refusal of the Court of Appeals for the District of Columbia Circuit on rehearing to conform its judgment to that of the Second Circuit. But I think there is another and more fundamental reason why this judgment cannot stand—a reason which also furnishes an additional ground for not reinstating the judgment of the District Court in the Times litigation, set aside by the Court of Appeals. It is plain to me that the scope of the judicial function in passing upon the activities of the Executive Branch of the Government in the field of foreign affairs is very narrowly restricted. This view is, I think, dictated by the concept of separation of powers upon which our constitutional system rests.

          In a speech on the floor of the House of Representatives, Chief Justice John Marshall, then a member of that body, stated:

          'The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' 10 Annals of Cong. 613.

          From that time, shortly after the founding of the Nation, to this, there has been no substantial challenge to this description of the scope of executive power. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319—321, 57 S.Ct. 216, 220—221, 81 L.Ed. 255 (1936), collecting authorities.

          From this constitutional primacy in the field of foreign affairs, it seems to me that certain conclusions necessarily follow. Some of these were stated concisely by President Washington, declining the request of the House of Representatives for the papers leading up to the negotiation of the Jay Treaty:

          'The nature of foreign negotiations requires caution, and their success must often depend on secrecy;

Page 757

          and even when brought to a conclusion a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or contemplated would be extremely impolitic; for this might have a pernicious influence on future negotiations, or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers.' 1 J. Richardson, Messages and Papers of the Presidents 194—195 (1896).

          The power to evaluate the 'pernicious influence' of premature disclosure is not, however, lodged in the Executive alone. I agree that, in performance of its duty to protect the values of the First Amendment against political pressures, the judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President's foreign relations power. Constitutional considerations forbid 'a complete abandonment of judicial control.' Cf. United States v. Reynolds, 345 U.S. 1, 8, 73 S.Ct. 528, 532, 97 L.Ed. 727 (1953). Moreover the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department concerned—here the Secretary of State or the Secretary of Defense after actual personal consideration by that officer. This safeguard is required in the analogous area of executive claims of privilege for secrets of state. See id., at 8 and n. 20, 73 S.Ct., at 532; Duncan v. Cammell, Laird & Co., (1942) A.C. 624, 638 (House of Lords).

          But in my judgment the judiciary may not properly go beyond these two inquiries and redetermine for itself the probable impact of disclosure on the national security.

          '(T)he very nature of executive decisions as to foreign policy is political, not judicial. Such de-

Page 758

          cisions are wholly confided by our Constitution to the political departments of the government, Executive and Legislative. They are delicate, complex, and involve large elements of prophecy. They are and should be undertaken only by those directly responsible to the people whose welfare they advance or imperil. They are decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.' Chicago & Southern Air Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103, 111, 68 S.Ct. 431, 436, 92 L.Ed. 568 (1948) (Jackson J.).

          Even if there is some room for the judiciary to override the executive determination, it is plain that the scope of review must be exceedingly narrow. I can see no indication in the opinions of either the District Court or the Court of Appeals in the Post litigation that the conclusions of the Executive were given even the deference owing to an administrative agency, much less that owing to a co-equal branch of the Government operating within the field of its constitutional prerogative.

          Accordingly, I would vacate the judgment of the Court of Appeals for the District of Columbia Circuit on this ground and remand the case for further proceedings in the District Court. Before the commencement of such further proceedings, due opportunity should be afforded the Government for procuring from the Secretary of State or the Secretary of Defense or both an expression of their views on the issue of national security. The ensuing review by the District Court should be in accordance with the views expressed in this opinion. And for the reasons stated above I would affirm the judgment of the Court of Appeals for the Second Circuit.

          Pending further hearings in each case conducted under the appropriate ground rules, I would continue the

Page 759

restraints on publication. I cannot believe that the doctrine prohibiting prior restraints reaches to the point of preventing courts from maintaining the status quo long enough to act responsibly in matters of such national importance as those involved here.

           Mr. Justice BLACKMUN, dissenting.

          I join Mr. Justice HARLAN in his dissent. I also am in substantial accord with much that Mr. Justice WHITE says, by way of admonition, in the latter part of his opinion.

          At this point the focus is on only the comparatively few documents specified by the Government as critical. So far as the other material—vast in amount—is concerned, let it be published and published forthwith if the newspapers, once the strain is gone and the sensationalism is eased, still feel the urge so to do.

          But we are concerned here with the few documents specified from the 47 volumes. Almost 70 years ago Mr. Justice Holmes, dissenting in a celebrated case, observed:

          'Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure * * *.' Northern Securities Co. v. United States, 193 U.S. 197, 400—401, 24 S.Ct. 436, 468, 48 L.Ed. 679 (1904).

          The present cases, if not great, are at least unusual in their posture and implications, and the Holmes observation certainly has pertinent application.

          The New York Times clandestinely devoted a period of three months to examining the 47 volumes that came into its unauthorized possession. Once it had begun publi-

Page 760

cation of material from those volumes, the New York case now before us emerged. It immediately assumed, and ever since has maintained, a frenetic pace and character. Seemingly once publication started, the material could not be made public fast enough. Seemingly, from then on, every deferral or delay, by restraint or otherwise, was abhorrent and was to be deemed violative of the First Amendment and of the public's 'right immediately to know.' Yet that newspaper stood before us at oral argument and professed criticism of the Government for not lodging its protest earlier than by a Monday telegram following the initial Sunday publication.

          The District of Columbia case is much the same.

          Two federal district courts, two United States courts of appeals, and this Court—within a period of less than three weeks from inception until today—have been pressed into hurried decision of profound constitutional issues on inadequately developed and largely assumed facts without the careful deliberation that, one would hope, should characterize the American judicial process. There has been much writing about the law and little knowledge and less digestion of the facts. In the New York case the judges, both trial and appellate, had not yet examined the basic material when the case was brought here. In the District of Columbia case, little more was done, and what was accomplished in this respect was only on required remand, with the Washington Post, on the axcuse that it was trying to protect its source of information, initially refusing to reveal what material it actually possessed, and with the District Court forced to make assumptions as to that possession.

          With such respect as may be due to the contrary view, this, in my opinion, is not the way to try a lawsuit of this magnitude and asserted importance. It is not the way for federal courts to adjudicate, and to be required to adjudicate, issues that allegedly concern the Nation's

Page 761

vital welfare. The country would be none the worse off were the cases tried quickly, to be sure, but in the customary and properly deliberative manner. The most recent of the material, it is said, dates no later than 1968, already about three years ago, and the Times itself took three months to formulate its plan of procedure and, thus, deprived its public for that period.

          The First Amendment, after all, is only one part of an entire Constitution. Article II of the great document vests in the Executive Branch primary power over the conduct of foreign affairs and places in that branch the responsibility for the Nation's safety. Each provision of the Constitution is important, and I cannot subscribe to a doctrine of unlimited absolutism for the First Amendment at the cost of downgrading other provisions. First Amendment absolutism has never commanded a majority of this Court. See, for example, Near v. Minnesota, ex rel. Olson, 283 U.S. 697, 708, 51 S.Ct. 625, 628, 75 L.Ed. 1357 (1931), and Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470 (1919). What is needed here is a weighing, upon properly developed standards, of the broad right of the press to print and of the very narrow right of the Government to prevent. Such standards are not yet developed. The parties here are in disagreement as to what those standards should be. But even the newspapers concede that there are situations where restraint is in order and is constitutional. Mr. Justice Holmes gave us a suggestion when he said in Schenck,

          'It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.' 249 U.S., at 52, 39 S.Ct., at 249.

          I therefore would remand these cases to be developed expeditiously, of course, but on a schedule permitting the

Page 762

orderly presentation of evidence from both sides, with the use of discovery, if necessary, as authorized by the rules, and with the preparation of briefs, oral argument, and court opinions of a quality better than has been seen to this point. In making this last statement, I criticize no lawyer or judge. I know from past personal experience the agony of time pressure in the preparation of litigation. But these cases and the issues involved and the courts, including this one, deserve better than has been produced thus far.

          It may well be that if these cases were allowed to develop as they should be developed, and to be tried as lawyers should try them and as courts should hear them, free of pressure and panic and sensationalism, other light would be shed on the situation and contrary considerations, for me, might prevail. But that is not the present posture of the litigation.

          The Court, however, decides the cases today the other way. I therefore add one final comment.

          I strongly urge, and sincerely hope, that these two newspapers will be fully aware of their ultimate responsibilities to the United States of America. Judge Wilkey, dissenting in the District of Columbia case, after a review of only the affidavits before his court (the basic papers had not then been made available by either party), concluded that there were a number of examples of documents that, if in the possession of the Post, and if published, 'could clearly result in great harm to the nation,' and he defined 'harm' to mean 'the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate * * *.' I, for one, have now been able to give at least some cursory study not only to the affidavits, but to the material itself. I regreat to say that from this examination I fear that Judge Wilkey's statements have possible foundation. I therefore share

Page 763

his concern. I hope that damage has not already been done. If, however, damage has been done, and if, with the Court's action today, these newspapers proceed to publish the critical documents and there results therefrom 'the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiation with our enemies, the inability of our diplomats to negotiate,' to which list I might add the factors of prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation's people will know where the responsibility for these sad consequences rests.

^{1. In introducing the Bill of Rights in the House of Representatives, Madison said: '(B)ut I believe that the great mass of the people who opposed (the Constitution), disliked it because it did not contain effectual provisions against the encroachments on particular rights * * *.' 1 Annals of Cong. 433. Congressman Goodhue added: '(I)t is the wish of many of our constituents, that something should be added to the Constitution, to secure in a stronger manner their liberties from the inroads of power.' Id., at 426.}

^2. The other parts were:

'The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.'

'The people shall not be restrained from peaceably assembling and consulting for their common good; nor from applying to the Legislature by petitions, or remonstrances, for redress of their grievances.' 1 Annals of Cong. 434.

^3. Tr. of Oral Arg. 76.

^4. Brief for the United States 13—14.

^5. Compare the views of the Solicitor General with those of James Madison, the author of the First Amendment. When speaking of the Bill of Rights in the House of Representatives, Madison said: 'If they (the first ten amendments) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' 1 Annals of Cong. 439.

^6. De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278.

^1. See Beauharnais v. Illinois, 343 U.S. 250, 267, 72 S.Ct. 725, 736, 96 L.Ed. 919 (dissenting opinion of Mr. Justice Black), 284, 72 S.Ct. 744 (my dissenting opinion); Roth v. United States, 354 U.S. 476, 508, 77 S.Ct. 1304, 1321, 1 L.Ed.2d 1498 (my dissenting opinion which Mr. Justice Black joined); Yates v. United States, 354 U.S. 298, 339, 77 S.Ct. 1064, 1087, 1 L.Ed.2d 1356 (separate opinion of Mr. Justice Black which I joined); New York Times Co. v. Sullivan, 376 U.S. 254, 293, 84 S.Ct. 710, 733, 11 L.Ed.2d 686 (concurring opinion of Mr. Justice Black which I joined); Garrison v. Louisiana, 379 U.S. 64, 80, 85 S.Ct. 209, 218, 13 L.Ed.2d 125 (my concurring opinion which Mr. Justice Black joined).

^2. These documents contain data concerning the communications system of the United States, the publication of which is made a crime. But the criminal sanction is not urged by the United States as the basis of equity power.

^3. There are numerous sets of this material in existence and they apparently are not under any controlled custody. Moreover, the President has sent a set to the Congress. We start then with a case where there already is rather wide distribution of the material that is destined for publicity, not secrecy. I have gone over the material listed in the in camera brief of the United States. It is all history, not future events. None of it is more recent than 1968.

^* Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), and similar cases regarding temporary restraints of allegedly obscene materials are not in point. For those cases rest upon the proposition that 'obscenity is not protected by the freedoms of speech and press.' Roth v. United States, 354 U.S. 476, 481, 77 S.Ct. 1304, 1307, 1 L.Ed.2d 1498 (1957). Here there is no question but that the material sought to be suppressed is within the protection of the First Amendment; the only question is whether, notwithstanding that fact, its publication may be enjoined for a time because of the presence of an overwhelming national interest. Similarly, copyright cases have no pertinence here: the Government is not asserting an interest in the particular form of words chosen in the documents, but is seeking to suppress the ideas expressed therein. And the copyright laws, of course, protect only the form of expression and not the ideas expressed.

^1. The President's power to make treaties and to appoint ambassadors is, of course, limited by the requirement of Art. II, § 2, of the Constitution that he obtain the advice and consent of the Senate. Article I, § 8, empowers Congress to 'raise and support Armies,' and 'provide and maintain a Navy.' And, of course, Congress alone can declare war. This power was last exercised almost 30 years ago at the inception of World War II. Since the end of that war in 1945, the Armed Forces of the United States have suffered approximately half a million casualties in various parts of the world.

^2. See Chicago & Southern Air Lines Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S.Ct. 431, 92 L.Ed. 568; Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 63 S.Ct. 1375, 87 L.Ed. 1774; United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255; cf. Mora v. McNamara, 389 U.S. 934, 88 S.Ct. 282, 19 L.Ed.2d 287 (Stewart, J., dissenting).

^3. 'It is quite apparent that if, in the maintenance of our international relations, embarrassment—perhaps serious embarrassment—is to be avoided and success for our aims achieved, congressional legislation which is to be made effective through negotiation and inquiry within the international field must often accord to the President a degree of discretion and freedom from statutory restriction which would not be admissible were domestic affairs alone involved. Moreover, he, not Congress, has the better opportunity of knowing the conditions which prevail in foreign countries, and especially is this true in time of war. He has his confidential sources of information. He has his agents in the form of diplomatic, consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results. Indeed, so clearly is this true that the first President refused to accede to a request to lay before the House of Representatives the instructions, correspondence and documents relating to the negotiation of the Jay Treaty—a refusal the wisdom of which was recognized by the House itself and has never since been doubted. * * *' United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320, 57 S.Ct. 216, 221, 81 L.Ed. 255.

^1. The Congress has authorized a strain of prior restraints against private parties in certain instances. The National Labor Relations Board routinely issues cease-and-desist orders against employers who it finds have threatened or coerced employees in the exercise of protected rights. See 29 U.S.C. § 160(c). Similarly, the Federal Trade Commission is empowered to impose cease-and-desist orders against unfair methods of competition. 15 U.S.C. § 45(b). Such orders can, and quite often do, restrict what may be spoken or written under certain circumstances. See, e.g., NLRB v. Gissel Packing Co., 395 U.S. 575, 616—620, 89 S.Ct. 1918, 1941—1943, 23 L.Ed.2d 547 (1969). Article I, § 8, of the Constitution authorizes Congress to secure the 'exclusive right' of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another. See L. A. Westermann Co. v. Dispatch Printing Co., 249 U.S. 100, 39 S.Ct. 194, 63 L.Ed. 499 (1919). Newspapers do themselves rely from time to time on the copyright as a means of protecting their accounts of important events. However, those enjoined under the statutes relating to the National Labor Relations Board and the Federal Trade Commission are private parties, not the press; and when the press is enjoined under the copyright laws the complainant is a private copyright holder enforcing a private right. These situations are quite distinct from the Government's request for an injunction against publishing information about the affairs of government, a request admittedly not based on any statute.

^2. The 'grave and irreparable danger' standard is that asserted by the Government in this Court. In remanding to Judge Gurfein for further hearings in the Times litigation, five members of the Court of Appeals for the Second Circuit directed him to determine whether disclosure of certain items specified with particularity by the Government would 'pose such grave and immediate danger to the security of the United States as to warrant their publication being enjoined.'

^3. 'Whoever, in time of war, in violation of reasonable regulations to be prescribed by the President, which he is hereby authorized to make and promulgate, shall publish any information with respect to the movement, numbers, description, condition, or disposition of any of the armed forces, ships, aircraft, or war materials of the United States, or with respect to the plans or conduct of any naval or military operations, or with respect to any works or measures undertaken for or connected with, or intended for the fortification or defense of any place, or any other information relating to the public defense calculated to be useful to the enemy, shall be punished by a fine * * * or by imprisonment * * *.' 55 Cong.Rec. 2100.

^4. Senator Ashurst also urged that "freedom of the press' means freedom from the restraints of a censor, means the absolute liberty and right to publish whatever you wish; but you take your chances of punishment in the courts of your country for the violation of the laws of libel, slander, and treason.' 55 Cong.Rec. 2005.

^5. Title 18 U.S.C. § 797 provides:

'On and after thirty days from the date upon which the President defines any vital military or naval installation or equipment as being within the category contemplated under section 795 of this title, whoever reproduces, publishes, sells, or gives away any photograph, sketch, picture, drawing, map, or graphical representation of the vital military or naval installations or equipment so defined, without first obtaining permission of the commanding officer of the military or naval post, camp, or station concerned, or higher authority, unless such photograph, sketch, picture, drawing, map, or graphical representation has clearly indicated thereon that it has been censored by the proper military or naval authority, shall be fined not more than $1,000 or imprisoned not more than one year, or both.'

^6. In relevant part 18 U.S.C. § 798 provides:

'(a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—

'(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or

'(2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or

'(3) concerning the communication intelligence activities of the United States or any foreign government; or

'(4) obtained by the process of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—

'Shall be fined not more than $10,000 or imprisoned not more than ten years, or both.'

^7. The purport of 18 U.S.C. § 798 is clear. Both the House and Senate Reports on the bill, in identical terms, speak of furthering the security of the United States by preventing disclosure of information concerning the cryptographic systems and the communication intelligence systems of the United States, and explaining that '(t)his bill make it a crime to reveal the methods, techniques, and mate riel used in the transmission by this Nation of enciphered or coded messages. * * * Further, it makes it a crime to reveal methods used by this Nation in breaking the secret codes of a foreign nation. It also prohibits under certain penalties the divulging of any information which may have come into this Government's hands as a result of such a code-breaking.' H.R.Rep.No.1895, 81st Cong., 2d Sess., 1 (1950). The narrow reach of the statute was explained as covering 'only a small category of classified matter, a category which is both vital and vulnerable to an almost unique degree.' Id., at 2. Existing legislation was deemed inadequate.

'At present two other acts protect this information, but only in a limited way. These are the Espionage Act of 1917 (40 Stat. 217) and the act of June 10, 1933 (48 Stat. 122). Under the first, unauthorized revelation of information of this kind can be penalized only if it can be proved that the person making the revelation did so with an intent to injure the United States. Under the second, only diplomatic codes and messages transmitted in diplomatic codes are protected. The present bill is designed to protect against knowing and willful publication or any other revelation of all important information affecting the United States communication intelligence operations and all direct information about all United States codes and ciphers.' Ibid. Section 798 obviously was intended to cover publications by non-employees of the Government and to ease the Government's burden in obtaining convictions. See H.R.Rep.No.1895, supra, at 2 5. The identical Senate Report, not cited in parallel in the text of this footnote, is S.Rep.No.111, 81st Cong., 1st Sess. (1949).

^8. Section 793(e) of 18 U.S.C. provides that:

'(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it;' is guilty of an offense punishable by 10 years in prison, a $10,000 fine, or both. It should also be noted that 18 U.S.C. § 793(g), added in 1950 (see 64 Stat. 1004; S.Rep.No.2369, pt. 1, 81st Cong., 2d Sess., 9 (1950)), provides that '(i)f two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy.'

^9. The amendment of § 793 that added subsection (e) was part of the Subversive Activities Control Act of 1950, which was in turn Title I of the Internal Security Act of 1950. See 64 Stat. 987. The report of the Senate Judiciary Committee best explains the purposes of the amendment:

'Section 18 of the bill amends section 793 of title 18 of the United States Code (espionage statute). The several paragraphs of section 793 of title 18 are designated as subsections (a) through (g) for purposes of convenient reference. The significant changes which would be made in section 793 of title 18 are as follows:

'(1) Amends the fourth paragraph of section 793, title 18 (subsec. (d)), to cover the unlawful dissemination of 'information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation.' The phrase 'which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation' would modify only 'information relating to the national defense' and not the other items enumerated in the subsection. The fourth paragraph of section 793 is also amended to provide that only those with lawful possession of the items relating to national defense enumerated therein may retain them subject to demand therefor. Those who have unauthorized possession of such items are treated in a separate subsection.

'(2) Amends section 793, title 18 (subsec. (e)), to provide that unauthorized possessors of items enumerated in paragraph 4 of section 793 must surrender possession thereof to the proper authorities without demand. Existing law provides no penalty for the unauthorized possession of such items unless a demand for them is made by the person entitled to receive them. The dangers surrounding the unauthorized possession of such items are self-evident, and it is deemed advisable to require their surrender in such a case, regardless of demand, especially since their unauthorized possession may be unknown to the authorities who would otherwise make the demand. The only difference between subsection (d) and subsection (e) of section 793 is that a demand by the person entitled to receive the items would be a necessary element of an offense under subsection (d) where the possession is lawful, whereas such

a demand would not be a necessary element of an offense under subsection (e) where the possession is unauthorized.' S.Rep.No.2369, pt. 1, 81st Cong., 2d Sess., 8—9 (1950) (emphasis added).

It seems clear from the foregoing, contrary to the intimations of the District Court for the Southern District of New York in this case, that in prosecuting for communicating or withholding a 'document' as contrasted with similar action with respect to 'information' the Government need not prove an intent to injure the United States or to benefit a foreign nation but only willful and knowing conduct. The District Court relied on Gorin v. United States, 312 U.S. 19, 61 S.Ct. 429, 85 L.Ed. 488 (1941). But that case arose under other parts of the predecessor to § 793, see 312 U.S., at 21—22, 61 S.Ct., at 430—432—parts that imposed different intent standards not repeated in § 793(d) or § 793(e). Cf. 18 U.S.C. § 793(a), (b), and (c). Also, from the face of subsection (e) and from the context of the Act of which it was a part, it seems undeniable that a newspaper, as well as others unconnected with the Government, are vulnerable to prosecution under § 793(e) if they communicate or withhold the materials covered by that section. The District Court ruled that 'communication' did not reach publication by a newspaper of documents relating to the national defense. I intimate no views on the correctness of that conclusion. But neither communication nor publication is necessary to violate the subsection.

^10. Also relevant is 18 U.S.C. § 794. Subsection (b) thereof forbids in time of war the collection or publication, with intent that it shall be communicated to the enemy, of any information with respect to the movements of military forces, 'or with respect to the plans or conduct * * * of any naval or military operations * * * or any other information relating to the public defense, which might be useful to the enemy * * *.'

^1. See n. 3, infra.

^2. But see Kent v. Dulles, 357 U.S. 116, 78 S.Ct. 1113, 2 L.Ed.2d 1204 (1958); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952).

^3. There are several other statutory provisions prohibiting and punishing the dissemination of information, the disclosure of which Congress thought sufficiently imperiled national security to warrant that result. These include 42 U.S.C. §§ 2161 through 2166 relating to the authority of the Atomic Energy Commission to classify and declassify 'Restricted Data' ('Restricted Data' is a term of art employed uniquely by the Atomic Energy Act). Specifically, 42 U.S.C. § 2162 authorizes the Atomic Energy Commission to classify certain information. Title 42 U.S.C. § 2274, subsection (a), provides penalties for a person who 'communicates, transmits, or discloses (restricted data) * * * with intent to injure the United States or with intent to secure an advantage to any foreign nation * * *.' Subsection (b) of § 2274 provides lesser penalties for one who 'communicates, transmits, or discloses' such information 'with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation * * *.' Other sections of Title 42 of the United States Code dealing with atomic energy prohibit and punish acquisition, removal, concealment, tampering with, alteration, mutilation, or destruction of documents incorporating 'Restricted Data' and provide penalties for employees and former employees of the Atomic Energy Commission, the armed services, contractors and licensees of the Atomic Energy Commission. Title 42 U.S.C. §§ 2276, 2277. Title 50 U.S.C.App. § 781, 56 Stat. 390, prohibits the making of any sketch or other representation of military installations or any military equipment located on any military installation, as specified; and indeed Congress in the National Defense Act of 1940, 54 Stat. 676, as amended, 56 Stat. 179, conferred jurisdiction on federal district courts over civil actions 'to enjoin any violation' thereof. 50 U.S.C.App. § 1152(6). Title 50 U.S.C. § 783(b) makes it unlawful for any officers or employees of the United States or any corporation which is owned by the United States to communicate material which has been 'classified' by the President to any person who that governmental employee knows or has reason to believe is an agent or representative of any foreign government or any Communist organization.

^1. As noted elsewhere the Times conducted its analysis of the 47 volumes of Government documents over a period of several months and did so with a degree of security that a government might envy. Such security was essential, of course, to protect the enterprise from others. Meanwhile the Times has copyrighted its material and there were strong intimations in the oral argument that the Times contemplated enjoining its use by any other publisher in violation of its copyright. Paradoxically this would afford it a protection, analogous to prior restraint, against all others—a protection the Times denies the Government of the United States.

^2. Interestingly the Times explained its refusal to allow the Government to examine its own purloined documents by saying in substance this might compromise its sources and informants! The Times thus asserts a right to guard the secrecy of its sources while denying that the Government of the United States has that power.

^3. With respect to the question of inherent power of the Executive to classify papers, records, and documents as secret, or otherwise unavailable for public exposure, and to secure aid of the courts for enforcement, there may be an analogy with respect to this Court. No statute gives this Court express power to establish and enforce the utmost security measures for the secrecy of our deliberations and records. Yet I have little doubt as to the inherent power of the Court to protect the confidentiality of its internal operations by whatever judicial measures may be required.

^* The hearing in the Post case before Judge Gesell began at 8 a.m. on June 21, and his decision was rendered, under the hammer of a deadline imposed by the Court of Appeals, shortly before 5 p.m. on the same day. The hearing in the Times case before Judge Gurfein was held on June 18 and his decision was rendered on June 19. The Government's appeals in the two cases were heard by the Courts of Appeals for the District of Columbia and Second Circuits, each court sitting en banc, on June 22. Each court rendered its decision on the following afternoon.

No. 08-1448.

BROWN, GOVERNOR OF CALIFORNIA, et al. v. ENTERTAINMENT MERCHANTS ASSOCIATION et al.

Decided June 27, 2011

Argued November 2, 2010

with whom The Chief Justice joins,

Zackery P. Morazzini, Supervising Deputy Attorney Gen­eral of California, argued the cause for petitioners. With him on the briefs were Edmund G. Brown, Jr., Attorney General, David S. Chaney, Chief Assistant Attorney Gen­eral, Manuel M. Medeiros, State Solicitor General, Gordon Burns, Deputy Solicitor General, Jonathan K. Renner, Se­nior Assistant Attorney General, and Daniel J. Powell, Dep­uty Attorney General.

Paul M. Smith argued the cause for respondents. With him on the brief were Katherine A. Fallotv, Matthew S. Hell­man, Duane C. Pozza, William M. Hohengarten, and Ken­neth L. Doroshow *

*

Briefs of amici curiae urging reversal were filed for the State of Loui­siana et al. by James D. “Buddy” Caldwell, Attorney General of Louisiana, James Trey Phillips, First Assistant Attorney General, and S. Kyle Dun­can, Appellate Chief, and by the Attorneys General for their respective States as follows: Richard Blumenthal of Connecticut, Bill McCollum of Florida, Mark J. Bennett of Hawaii, Lisa Madigan of Illinois, Douglas F. Gansler of Maryland, Michael A Cox of Michigan, Lori Swanson of Min­nesota, Jim Hood of Mississippi, Greg Abbott of Texas, and Kenneth T. Cuccinelli II of Virginia; for the Eagle Forum Education & Legal Defense Fund by Andrew L, Schlafly; and for California State Senator Leland Y. Yee et al. by Steven F. Gruel.

Briefs of amici curiae urging affirmance were filed for the State of Rhode Island et al. by Patrick C. Lynch, Attorney General of Rhode Is­land, Joseph M. Lipner, and Elliot Brown, and by the Attorneys General for their respective jurisdictions as follows: Dustin McDaniel of Arkansas, Thurbert E. Baker of Georgia, Jon C. Bruning of Nebraska, Wayne Sten-­ehjem of North Dakota, W. A Drew Edmondson of Oklahoma, Guillermo A. Somoza-Colombani of Puerto Rico, Henry McMaster of South Caro­lina, Mark L. Shurtleff of Utah, and Robert M. McKenna of Washington; for Activision Blizzard, Inc., by Paul J. Watford; for the American Book­sellers Foundation for Free Expression et al. by Michael A Bamberger and Richard M. Zuckerman; for the American Civil Liberties Union et al. by Christopher A Hanson, Steven R. Shapiro, David Blair-Luy, Joan E. Bertin, Peter J. Eliasberg, and Alan Schlosser; for the Chamber of Com­merce of the United States of America by Lisa S. Blatt, Christopher S. Rhee, Robin S. Conrad, and Amar Sarwal; for the Computer & Communi­cations Industry Association et al. by John B. Morris, Jr.; for the Con­sumer Electronic Retailers Coalition et al. by Seth D. Greenstein; for the Entertainment Consumers Association et al. by William R. Stein, Daniel H. Weiner, Daniel C. Doeschner, and Jennifer Mercurio; for the First Amendment Lawyers Association by Lawrence G. Walters and Jennifer S. Kinsley; for First Amendment Scholars by Donald M. Falk and Eugene Volokh; for the Future of Music Coalition et al. by Andrew Jay Schwartz-­man; for Id Software LLC by James T. Dralceley, Kevin J. Keith, Paul E. Salamanca, and J. Griffin Lesher; for the International Game Developers Association et al. by Christopher J. Wright, Timothy J. Simeone, and Mark D. Davis; for the Marion B. Brechner First Amendment Project et al. by Clay Calvert and Robert D. Richards; for Microsoft Corp. by Theodore B, Olson and Matthew D. McGill, for the Motion Picture Associ­ation of America, Inc., et al. by Kannon K Shanmugam, David E. Ken-­dull, and Thomas G. Hcntoff; for the National Association of Broadcasters by Robert A Long, Jr., Stephen A Weiswasser, Mark W. Mosier, Jane E. Mago, and Jerianne Timmerman; for the National Cable & Telecommuni­cations Association by H. Bartow Farr III, Rick Chessen, Neal M. Gold­berg, Michael S. Schooler, and Diane B. Burstein; for the Progress & Freedom Foundation et al. by Cindy Cohn; for Social Scientists et al. by Patricia A Millctt and Michael C. Small; for the Thomas Jefferson Cen­ter for the Protection of Free Expression et al. by Robert M. O’Neil and J. Joshua Wheeler; and for Vindieia, Inc., by Alan Gura and Laura Possessky.

Briefs of amici curiae were filed for the Cato Institute by John P. El­wood, Ilya Shapiro, and Thomas S. Leatherbury; for the Comic Book Legal Defense Fund by Robert Corn Revere and Ronald G. London; for Common Sense Media by Thoodoro M. Shaw and Kevin W Saunders; for the First Amendment Coalition by Gary L. Bootwioh and Jacm-Paul Jassy; for the Reporters Committee for Freedom of the Press ot al. by Lucy Dalglish, Gregg P. Leslie, Kevin M. Goldberg, David Greene, Mickey P Oatcrroichcr, Bruce IK Sanford, Bruco D. Brown, and Laurie A Babin ski; and for the Rutherford Institute by John W. Whitehead.

Justice Scalia

delivered the opinion of the Court.

We consider whether a California law imposing restric­tions on violent video games comports with the First Amendment.

California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§ 1746-1746.5 (West 2009) (Act), prohibits the sale or rental of “violent video games” to minors, and requires their pack­aging to be labeled “18.” The Act covers games “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artis­tic, political, or scientific value for minors.” § 1746(d)(1)(A). Violation of the Act is punishable by a civil fine of up to $1,000. §1746.3.

Respondents, representing the video-game and software industries, brought a preenforcement challenge to the Act in the United States District Court for the Northern District

H-1 of California. That court concluded that the Act violated the First Amendment and permanently enjoined its enforce­ment. Video Software Dealers Assn. v. Schwarzenegger, No. C-05-04188 RMW (2007), App. to Pet. for Cert. 39a. The Court of Appeals affirmed, Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950 (CA9 2009), and we granted certiorari, 559 U. S. 1092 (2010).

II

California correctly acknowledges that video games qual­ify for First Amendment protection. The Free Speech Clause exists principally to protect discourse on public mat­ters, but we have long recognized that it is difficult to distin­guish politics from entertainment, and dangerous to try. “Everyone is familiar with instances of propaganda through fiction. What is one man’s amusement, teaches another’s doctrine.” Winters v. New York, 333 U. S. 507, 510 (1948). Like the protected books, plays, and movies that preceded them, video games communicate ideas — and even social mes­sages — through many familiar literary devices (such as char­acters, dialogue, plot, and music) and through features dis­tinctive to the medium (such as the player’s interaction with -the virtual world). That suffices to confer First Amend­ment protection. Under our Constitution, “esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 818 (2000). And whatever the challenges of applying the Consti­tution to ever-advancing technology, “the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary” when a new and different medium for communication appears. Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 503 (1952).

The most basic of those principles is this: “[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Ashcroft v. American Civil Liberties Union, 535 U. S. 564, 573 (2002) (internal quotation marks omitted). There are of course exceptions. “‘From 1791 to the pres­ent/ ... the First Amendment has ‘permitted restrictions upon the content of speech in a few limited areas/ and has never ‘include[d] a freedom to disregard these traditional limitations.’ ” United States v. Stevens, 559 U. S. 460, 468 (2010) (quoting R. A. V. v. St. Paul, 505 U. S. 377, 382-383 (1992)). These limited areas — such as obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), incitement, Branden­burg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and fighting words, Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)—represent “well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional prob­lem,” id., at 571-572.

Last Term, in Stevens, we held that new categories of un­protected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated. Stevens concerned a federal statute purporting to criminal­ize the creation, sale, or possession of certain depictions of animal cruelty. See 18 U. S. C. § 48 (amended 2010). The statute covered depictions “in which a living animal is inten­tionally maimed, mutilated, tortured, wounded, or killed” if that harm to the animal was illegal where “the creation, sale, or possession t[ook] place,” § 48(e)(1). A saving clause largely borrowed from our obscenity jurisprudence, see Miller v. California, 413 U. S. 15, 24 (1973), exempted depic­tions with “serious religious, political, scientific, educational, journalistic, historical, or artistic value,” § 48(b). We held that statute to be an impermissible content-based restriction on speech. There was no American tradition of forbidding the depiction of animal cruelty — though States have long had laws against committing it.

The Government argued in Stevens that lack of a historical warrant did not matter; that it could create new categories of unprotected speech by applying a “simple balancing test” that weighs the value of a particular category of speech against its social costs and then punishes that category of speech if it fails the test. Stevens, 559 U. S., at 470. We emphatically rejected that “startling and dangerous” propo­sition. Ibid. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Id., at 472. But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,” embodied in the First Amendment, “that the benefits of its restrictions on the Government outweigh the costs.” Id., at 470.

That holding controls this case.1 As in Stevens, California has tried to make violent-speech regulation look like obscen­ity regulation by appending a saving clause required for the latter. That does not suffice. Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only de­pictions of “sexual conduct,” Miller, supra, at 24. See also Cohen v. California, 403 U. S. 15, 20 (1971); Roth, supra, at 487, and n. 20.

Stevens was not the first time we have encountered and rejected a State’s attempt to shoehorn speech about violence into obscenity. In Winters, we considered a New York crim­inal statute “forbid[ding] the massing of stories of bloodshed and lust in such a way as to incite to crime against the per­son,” 333 U. S., at 514. The New York Court of Appeals upheld the provision as a law against obscenity. “[T]here can be no more precise test of written indecency or obscen­ity,” it said, “than the continuing and changeable experience of the community as to what types of books are likely to bring about the corruption of public morals or other analo­gous injury to the public order. ” Ibid, (internal quotation marks omitted). That is of course the same expansive view of governmental power to abridge the freedom of speech based on interest balancing that we rejected in Stevens. Our opinion in Winters, which concluded that the New York statute failed a heightened vagueness standard applicable to restrictions upon speech entitled to First Amendment pro­tection, 333 U. S., at 517-519, made clear that violence is not part of the obscenity that the Constitution permits to be reg­ulated. The speech reached by the statute contained “no indecency or obscenity in any sense heretofore known to the law.” Id., at 519.

Because speech about violence is not obscene, it is of no consequence that California’s statute mimics the New York statute regulating obscenity for minors that we upheld in Ginsberg v. New York, 390 U. S. 629 (1968). That case ap­proved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.2 We held that the legislature could “adjus[t] the definition of ob­scenity 'to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual inter­ests ... ’ of... minors.” Id., at 638 (quoting Mishkin v. New York, 383 U. S. 502, 509 (1966)). And because “obscenity is not protected expression,” the New York statute could be sustained so long as the legislature’s judgment that the pro­scribed materials were harmful to children “was not irratio­nal.” 390 U. S., at 641.

The California Act is something else entirely. It does not adjust the boundaries of an existing category of unprotected speech to ensure that a definition designed for adults is not uncritically applied to children. California does not argue that it is empowered to prohibit selling offensively violent works to adults — and it is wise not to, since that is but a hair’s breadth from the argument rejected in Stevens. In­stead, it wishes to create a wholly new category of content-­based regulation that is permissible only for speech directed at children.

That is unprecedented and mistaken. “[Mjinors 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. Jacksonville, 422 U. S. 205, 212-213 (1975) (citation omitted). No doubt a State pos­sesses legitimate power to protect children from harm, Gins­berg, supra, at 640-641; Prince v. Massachusetts, 321 U. S. 158, 165 (1944), but that does not include a free-floating power to restrict the ideas to which children may be ex­posed. “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.” Erznoznik, supra, at 213-214.3

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Com­plete Brothers Grimm Fairy Tales 198 (2006 ed.). Cinderel­la’s evil stepsisters have their eyes pecked out by doves. Id., at 95. And Hansel and Gretel (children!) kill their cap­tor by baking her in an oven. Id., at 54.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. 22 The Odyssey of Homer, Book IX, p. 125 (S. Butcher & A. Lang transis. 1909) (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crack­led in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. Canto XXI, pp. 187-189 (A. Mandelbaum transl. Bantam Classic ed. 1982). And Golding’s Lord of the­-Flies recounts how a schoolboy called Piggy is savagely mur­dered by other children while marooned on an island. W. Golding, Lord of the Flies 208-209 (1997 ed.).4

This is not to say that minors’ consumption of violent en­tertainment has never encountered resistance. In the 1800’s, dime novels depicting crime and “penny dreadfuls” (named for their price and content) were blamed in some quarters for juvenile delinquency. See Brief for Cato Insti­tute as Amicus Curiae 6-7. When motion pictures came along, they became the villains instead. “The days when the police looked upon dime novels as the most dangerous of textbooks in the school for crime are drawing to a close.... They say that the moving picture machine . . . tends even more than did the dime novel to turn the thoughts of the easily influenced to paths which sometimes lead to prison.” Moving Pictures as Helps to Crime, N. Y. Times, Feb. 21, 1909, quoted in Brief for Cato Institute 8. For a time, our Court did permit broad censorship of movies because of their capacity to be “used for evil,” see Mutual Film Corp. v. In­dustrial Comm’n of Ohio, 236 U. S. 230, 242 (1915), but we eventually reversed course, Joseph Burstyn, Inc., 343 U. S., at 502; see also Erznoznik, supra, at 212-214 (invalidating a drive-in movies restriction designed to protect children). Radio dramas were next, and then came comic books. Brief for Cato Institute 10-11. Many in the late 1940’s and early 1950’s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading to a ris­ing juvenile crime rate. See Note, Regulation of Comic Books, 68 Harv. L. Rev. 489, 490 (1955). But efforts to convince Congress to restrict comic books failed. Brief for Comic Book Legal Defense Fund as Amicus Curiae 11-15.5 And, of course, after comic books came television and music lyrics.

California claims that video games present special prob­lems because they are “interactive,” in that the player par­ticipates in the violent action on screen and determines its outcome. The latter feature is nothing new: Since at least the publication of The Adventures of You: Sugarcane Island in 1969, young readers of choose-your-own-adventure stories have been able to make decisions that determine the plot by following instructions about which page to turn to. Cf. Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954, 957-958 (CA8 2003). As for the argument that video games enable participation in the violent action, that seems to us more a matter of degree than of kind. As Judge Posner has observed, all literature is interactive. “[T]he better it is, the more interactive. Literature when it is suc­cessful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.” American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001) (striking down a similar restriction on violent video games).

Justice Alito has done considerable independent re­search to identify, see post, at 818-819, nn. 13-18, video games in which “the violence is astounding,” post, at 818. “Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces_Blood gushes, splat­ters, and pools.” Ibid. Justice Alito recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression. And the same is true of Justice Alito’s description, post, at 819, of those

Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demon­strate that it passes strict scrutiny — that is, unless it is justi­fied by a compelling government interest and is narrowly drawn to serve that interest. R. A. V., 505 U. S., at 395. The State must specifically identify an “actual problem” in need of solving, Playboy, 529 U. S., at 822-823, and the cur­tailment of free speech must be actually necessary to the solution, see R. A. V, supra, at 395. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.” Playboy, supra, at 818.

California cannot meet that standard. At the outset, it acknowledges that it cannot show a direct causal link be­tween violent video games and harm to minors. Rather, re­lying upon our decision in Turner Broadcasting System, Inc. v. FCC, 512 U. S. 622 (1994), the State claims that it need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on compet­ing psychological studies. But reliance on Turner Broad­casting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. Id., at 661-662. California’s burden is much higher, and because it bears the video games he has discovered that have a racial or ethnic motive for their violence — “‘ethnic cleansing’ [of] . . . African-Americans, Latinos, or Jews.” To what end does he relate this? Does it somehow increase the “aggressiveness” that- California wishes to suppress? Who knows? But it does arouse the reader’s ire, and the reader’s desire to put an end to this horrible message. Thus, ironically, Justice Alito’s argument highlights the precise danger posed by the California Act: that the ideas expressed by speech — whether it be violence, or' gore, or racism — and not its objective ef­fects, may be the real reason for governmental proscription.

I­I­I risk of uncertainty, see Playboy, supra, at 816-817, ambigu­ous proof will not suffice.

The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been re­jected by every court to consider them,6 and with good rea­son: They do not prove that violent video games cause minors to act aggressively (which would at least be a begin­ning). Instead, “[njearly all of the research is based on cor­relation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game.7

Even taking for granted Dr. Anderson’s conclusions that violent video games produce some effect on children’s feel­ings of aggression, those effects are both small and indistin­guishable from effects produced by other media. In his tes­timony in a similar lawsuit, Dr. Anderson admitted that the “effect sizes” of children’s exposure to violent video games are “about the same” as that produced by their exposure to violence on television. App. 1263. And he admits that the same effects have been found when children watch cartoons starring Bugs Bunny or the Road Runner, id., at 1304, or when they play video games like Sonic the Hedgehog that are rated “E” (appropriate for all ages), id., at 1270, or even when they “vie[w] a picture of a gun,” id., at 1315-1316.8

Of course, California has (wisely) declined to restrict Sat­urday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The conse­quence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint. See City of Ladue v. Gilleo, 512 U. S. 43, 51 (1994); Florida Star v. B. J. F., 491 U. S. 524, 540 (1989). Here, California has singled out the purveyors of video games for disfavored treatment — at least when compared to booksellers, cartoonists, and movie producers — and has given no persuasive reason why.

The Act is also seriously underinclusive in another re­spect — and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; ap­parently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious so­cial problem.

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that par­ents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for convey­ing protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that “only in relatively narrow and well-defined circumstances may government bar public dis­semination of protected materials to [minors].” Erznoznik, 422 U. S., at 212-213.

But leaving that aside, California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games biit cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the En­tertainment Software Rating Board (ESRB), assigns age-­specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only — 18 and older). App. 86. The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from rent­ing or selling adults-only games to minors; and to rent or sell “M” rated games to minors only with parental consent. Id., at 47. In 2009, the Federal Trade Commission (FTC) found that, as a result of this system, “the video game industry outpaces the movie and music industries” in “(1) restrict­ing target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children’s access to mature-rated products at retail.” FTC, Report to Congress, Marketing Violent En­tertainment to Children 30 (Dec. 2009), online at http:// www.ftc.gov/os/2009/12/P994511violententertainment.pdf (as visited June 24, 2011, and available in Clerk of Court’s case file) (FTC Report). This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned parents’ control can hardly be a compelling state interest.9

And finally, the Act’s purported aid to parental authority is vastly overinclusive. Not all of the children who are for­bidden to purchase violent video games on their own have parents who care whether they purchase violent video games. While some of the legislation’s effect may indeed be in support of what some parents of the restricted children actually want, its entire effect is only in support of what the State thinks parents ought to want. This is not the narrow tailoring to “assisting parents” that restriction of First Amendment rights requires.

* * *

California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors. While we have pointed out above that some of the evidence brought forward to sup­port the harmfulness of video games is unpersuasive, we do not mean to demean or disparage the concerns that underlie the attempt to regulate them — concerns that may and doubt­less do prompt a good deal of parental oversight. We have no business passing judgment on the view of the California Legislature that violent video games (or, for that matter, any other forms of speech) corrupt the young or harm their moral development. Our task is only to say whether or not such works constitute a “well-defined and narrowly limited clas[s] of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem,” Chaplinsky, 315 U. S., at 571-572 (the answer plainly is no); and if not, whether the regulation of such works is justified by that high degree of necessity we have described as a com­pelling state interest (it is not). Even where the protection of children is the object, the constitutional limits on govern­mental action apply.

California’s legislation straddles the fence between (1) . addressing a serious social problem and (2) helping con­cerned parents control their children. Both ends are legiti­mate, but when they affect First Amendment rights they must be pursued by means that are neither seriously under-­inclusive nor seriously overinclusive. See Church of Lu­kumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993). As a means of protecting children from portrayals of vio­lence, the legislation is seriously underinclusive, not only because it excludes portrayals other than video games, but also because it permits a parental or avuncular veto. And as a means of assisting concerned parents it is seriously overinclusive because it abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime. And the overbreadth in achieving one goal is not cured by the underbreadth in achieving the other. Legislation such as this, which is neither fish nor fowl, cannot survive strict scrutiny.

We affirm the judgment below.

It is so ordered.

1

Justice Alito distinguishes Stevens on several grounds that seem to us ill founded. He suggests, post, at 814 (opinion concurring in judgment), that Stevens did not apply strict scrutiny. If that is so (and we doubt it), it would make this an a fortiori case. He says, post, at 814, that the California Act punishes the sale or rental rather than the “creation” or “possession” of violent depictions. That distinction appears nowhere in Stevens itself, and for good reason: It would make permissible the pro­hibition of printing or selling books — though not the writing of them. "Whether government regulation applies to creating, distributing, or con­suming speech makes no difference. And finally, Justice Alito points out, post, at 814, that Stevens “left open the possibility that a more nar­rowly drawn statute” would be constitutional. True, but entirely irrele­vant. Stevens said, 559 U. S., at 482, that the “crush-video” statute at issue there might pass muster if it were limited to videos of acts of animal cruelty that violated the law where the acts were performed. There is no contention that any of the virtual characters depicted in the imagina­tive videos at issue here are criminally liable.

2

The statute in Ginsberg restricted-the sale of certain depictions of ‘“nudity, sexual conduct, sexual excitement, or sado-masochistic abuse’” that were ‘“[h]armful to minors.’” A depiction was harmful to minors if it:

“(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and

“(ü) 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 without redeeming social importance for minors.” 390 U. S., at 646 (Appendix A to opinion of the Court) (quoting N. Y. Penal Law § 484-h(1)(f)).

3

Justice Thomas ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to Gpoalc or bo spoken to without their parents’ consent. He cites no case, state or federal, support­ing this view, and to our knowledge there is none. Most of his dissent is devoted to the proposition that parents have traditionally had the power to control what their children hear and say. This is true enough. And it perhaps follows from this that the state has the power to enforce parental prohibitions — to require, for example, that the promoters of a rock eoncort exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally with­out their parents’ prior written consent — even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent. Our point is not, as Justice Thomas believes, post, at 836, n. 2, merely that such laws are “undesirable.” They are obviously an infringement upon the religious freedom of young people and thooo who wish to proselytizo young people. Such laws do not enforce parental authority over chil­dren’s speech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (Justice Thomas cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as Justice Thomas asserts, “circular,” ibid. It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.

4

Justice Auto accuses us of pronouncing that playing violent video games “is not different in ‘kind’ ” from reading violent literature. Post, at 806. Well of course it is different in kind, but not in a way that causes the provision and viewing of violent video games, unlike the provision and reading of books, not to be expressive activity and hence not to enjoy First Amendment protection. Reading Dante is unquestionably more cul­tured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violont video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny — a question to which we devote our attention in Part III, infra. Even if we can see in them “nothing of any possible value to society .. ., they are as much entitled to the protection of free speech as the best of literature.” Winters v. New York, 338 U. S. 507, 510 (1948).

5

The crusade against comic books was led by a psychiatrist, Frederic Wertham, who told the Senate Judiciary Committee that “as long as the crime comic books industry exists in its present forms there are no secure homes.” Juvenile Delinquency (Comic Books): Hearings before the Sub­committee to Investigate Juvenile Delinquency, 83d Cong., 2d Sess., 84 (1954). Wertham’s objections extended even to Superman comics, which he described as “particularly injurious to the ethical development of chil­dren.” Id., at 86. Wertham’s crusade did convince the New York Legis­lature to pass a ban on the sale of certain comic books to minors, but it was vetoed by Governor Thomas Dewey on the ground that it was uncon­stitutional given our opinion in Winters, supra. See People v. Bookcase, Inc., 14 N. Y. 2d 409, 412-413, 201 N. E. 2d 14, 15-16 (1964).

6

See Video Software Dealers Assn. v. Schwarzenegger, 556 F. 3d 950, 963-964 (CA9 2009); Interactive Digital Software Assn. v. St. Louis County, 329 F. 3d 954 (CA8 2003); American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 578-579 (CA7 2001); Entertainment Software Assn. v. Foti, 451 F. Supp. 2d 823, 832-833 (MD La, 2006); Entertainment Software Assn. v. Hatch, 443 F. Supp. 2d 1065, 1070 (Minn. 2006), aff’d, 519 F. 3d 768 (CA8 2008); Entertainment Software Assn. v. Granholm, 426 F. Supp. 2d 646, 653 (ED Mich. 2006); Entertainment Software Assn. v. Blagojevich, 404 F. Supp. 2d 1051, 1063 (ND Ill. 2005), aff’d, 469 F. 3d 641 (CA7 2006).

7

One study, for example, found that children who had just finished play­ing violent video games were more likely to fill in the blank letter in “explo_e” with a “d” (so that it reads “explode”) than with an “r” (“ex­plore”). App. 496, 506 (internal quotation marks omitted). The preven­tion of this phenomenon, which might have been anticipated with common sense, is not a compelling state interest.

8

Justice Auto is mistaken in thinking that we fail to take account of “new and rapidly evolving technology,” post, at 806. The studies in ques­tion pertain to that new and rapidly evolving technology, and fail to show, with the degree of certitude that strict scrutiny requires, that this subject-matter restriction on speech is justified. Nor is Justice Alito correct in attributing to us the view that “violent video games really pre­sent no serious problem.” Ibid. Perhaps they do present a problem, and perhaps none of us would allow our own children to play them. But there are all sorts of “problems” — some of them surely more serious than this one — that cannot be addressed by governmental restriction of free expres­sion: for example, the problem of encouraging anti-Semitism (National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam)), the problem of spreading a political philosophy hostile to the Constitution (Noto v. United States, 367 U. S. 290 (1961)), or the problem of encouraging disrespect for the Nation’s flag (Texas v. Johnson, 491 U. S. 397 (1989)).

Justice Breyer would hold that California has satisfied strict scrutiny based upon his own research into the issue of the harmfulness of violent video games. See post, at 858-872 (appendixes to dissenting opinion) (listing competing academic articles discussing the harmfulness vel non of violent video games). The vast preponderance of this research is outside the record — and in any event we do not see how it could lead to Justice Breyer’s conclusion, since he admits he cannot say whether the studies on his side are right or wrong. Post, at 853. Similarly, Justice Axito says he is not “sure” whether there are any constitutionally dispositive differences between video games and other media. Post, at 806. If that is so, then strict scrutiny plainly has not been satisfied.

9

Justice Breyer concludes that the remaining gap is compelling be­cause, according to the FTC’s report, some “20% of those under 17 are still able to buy M-rated video games.” Post, at 856 (citing FTC Report 28). But some gap in compliance is unavoidable. The sale of alcohol to minors, for example, has long been illegal, but a 2005 study suggests that about 18% of retailers still sell alcohol to those under the drinking age. Brief for State of Rhode Island et al. as Amici Curiae 18. Even if the sale of violent video games to minors could be deterred further by increas­ing regulation, the government does not have a compelling interest in each marginal percentage point by which its goals are advanced.

Justice Auto,

con­curring in the judgment.

The California statute that is before us in this case rep­resents a pioneering effort to address what the state leg­islature and others regard as a potentially serious social problem: the effect of exceptionally violent video games on impressionable minors, who often spend countless hours im­mersed in the alternative worlds that these games create. Although the California statute is well intentioned, its terms are not framed with the precision that the Constitution de­mands, and I therefore agree with the Court that this partic­ular law cannot be sustained.

I disagree, however, with the approach taken in the Court’s opinion. In considering the application of unchang­ing constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution.

In the view of the Court, all those concerned about the effects of violent video games — federal and state, legislators, educators, social scientists, and parents — are unduly fearful, for violent video games really present no serious problem. See ante, at 798-801, 803-804. Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in “kind” from reading a description of violence in a work of literature. See ante, at 798.

The Court is sure of this; I am not. There are reasons to suspect that the experience of playing violent video games just might be very different from reading a book, listening to the radio, or watching a movie or a television show.

I

Respondents in this case, representing the video-game in­dustry, ask us to strike down the California law on two grounds: the broad ground adopted by the Court and the narrower ground that the law’s definition of “violent video game,” see Cal. Civ. Code Ann. § 1746(d)(1)(A) (West 2009), is impermissibly vague. See Brief for Respondents 23-61. Because I agree with the latter argument, I see no need to reach the broader First Amendment issues addressed by the Court.1

A

. Due process requires that laws give people of ordinary in­telligence fair notice of what is prohibited. Grayned v. City of Rockford, 408 U. S. 104, 108 (1972). The lack of such no­tice in a law that regulates expression “raises special First Amendment concerns because of its obvious chilling effect on free speech.” Reno v. American Civil Liberties Union, 521 U. S. 844, 871-872 (1997). Vague laws force potential speakers to “ 'steer far wider of the unlawful zone’... than if the boundaries of the forbidden areas were clearly marked.” Baggett v. Bullitt, 377 U. S. 360, 372 (1964) (quoting Speiser v. Randall, 357 U. S. 513, 526 (1958)). While “perfect clarity and precise guidance have never been required even of regu­lations that restrict expressive activity,” Ward v. Rock Against Racism, 491 U. S. 781, 794 (1989), “government may regulate in the area” of First Amendment freedoms “only with narrow specificity,” NAACP v. Button, 371 U. S. 415, 433 (1963); see also Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S. 489, 499 (1982). These principles apply to laws that regulate expression for the purpose of protecting children. See Interstate Circuit, Inc. v. Dallas, 390 U. S. 676, 689 (1968).

Here, the California law does not define “violent video games” with the “narrow specificity” that the Constitution demands. In an effort to avoid First Amendment problems, the California Legislature modeled its violent video game statute on the New York law that this Court upheld in Gins­berg v. New York, 390 U. S. 629 (1968) — a law that prohibited the sale of certain sexually related materials to minors, see id., at 631-633. But the California Legislature departed from the Ginsberg model in an important respect, and the legislature overlooked important differences between the materials falling within the scope of the two statutes.

B

The law at issue in Ginsberg prohibited the sale to minors of materials that were deemed “harmful to minors,” and the law defined “harmful to minors” simply by adding the words “for minors” to each element of the definition of obscenity set out in what were then the Court’s leading obscenity deci­sions, see Roth v. United States, 354 U. S. 476 (1957), and Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U. S. 413 (1966).

Seeking to bring its violent video game law within the protection of Ginsberg, the California Legislature began with the obscenity test adopted in Miller v. California, 413 U. S. 15 (1973), a decision that revised the obscenity tests previously set out in Roth and Memoirs. The legislature then made certain modifications to accommodate the aim of the violent video game law.

Under Miller, an obscenity statute must contain a thresh­old limitation that restricts the statute’s scope to specifically described “hard core” materials. See 413 U. S., at 23-25, 27. Materials that fall within this “hard core” category may be deemed to be obscene if three additional requirements are met:

(1) An “average person, applying contemporary commu­nity standards [must] find ... the work, taken as a whole, appeals to the prurient interest”;

(2) “the work [must] depic[t] or describ[e], in a patently offensive way, sexual conduct specifically defined by the applicable state law; and”

(3) “the work, taken as a whole, [must] lac[k] serious literary, artistic, political, or scientific value.” Id., at 24 (internal quotation marks omitted).

Adapting these standards, the California law imposes the following threshold limitation: “[T]he range of options avail­able to a player [must] includ[e] killing, maiming, dismember­ing, or sexually assaulting an image of a human being.” § 1746(d)(1). Any video game that meets this threshold test is subject to the law’s restrictions if it also satisfies three further requirements:

“(i) A reasonable person, considering the game as a whole, would find [the game] 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 scientific value for mi­nors.” § 1746(d)(1)(A).2

C

The first important difference between the Ginsberg law and the California violent video game statute concerns their respective threshold requirements. As noted, the Ginsberg law built upon the test for adult obscenity, and the current adult obscenity test, which was set out in Miller, requires an obscenity statute to contain a threshold limitation that restricts the statute’s coverage to specifically defined “hard core” depictions. See 413 U. S., at 23-25, 27. The Miller Court gave as an example a statute that applies to only “[p]atently offensive representations or descriptions of ulti­mate sexual acts,” “masturbation, excretory functions, and lewd exhibition of the genitals.” Id., at 25. The Miller Court clearly viewed this threshold limitation as serving a vital notice function. “We are satisfied,” the Court wrote, “that these specific prerequisites will provide fair notice to a dealer in such materials that his public and commercial activities may bring prosecution.” Id., at 27; see also Reno, 521 U. S., at 873 (observing that Miller’s threshold limitation “reduces the vagueness inherent in the open-ended term 'patently offensive’ ”).3

By contrast, the threshold requirement of the California law does not perform the narrowing function served by the limitation in Miller. At least when Miller was decided, de­pictions of “hard core” sexual conduct were not a common feature of mainstream entertainment. But nothing similar can be said about much of the conduct covered by the Cali­fornia law. It provides that a video game cannot qualify as “violent” unless “the range of options available to a player includes killing, maiming, dismembering, or sexually assault­ing an image of a human being.” § 1746(d)(1).

For better or worse, our society has long regarded many depictions of killing and maiming4 as suitable features of popular entertainment, including entertainment that is widely available to minors. The California law’s threshold requirement would more closely resemble the limitation in Miller if it targeted a narrower class of graphic depictions.

Because of this feature of the California law’s threshold test, the work of providing fair notice is left in large part to the three requirements that follow, but those elements are also not up to the task. In drafting the violent video game law, the California Legislature could have made its own judgment regarding the kind and degree of violence that is acceptable in games played by minors (or by minors in par­ticular age groups). Instead, the legislature relied on unde­fined societal or community standards.

One of the three elements at issue here refers expressly to “prevailing standards in the community as to what is suit­able for minors.” § 1746(d)(1)(A)(ii). Another element points in the same direction, asking whether “[a] reasonable person, considering [a] game as a whole,” would find that it “appeals to a deviant or morbid interest of minors.” § 1746(d)(1)(A)(i) (emphasis added).

The terms “deviant” and “morbid” are not defined in the statute, and California offers no reason to think that its courts would give the terms anything other than their ordi­nary meaning. See Reply Brief for Petitioners 5 (arguing that “[a] reasonable person can make this judgment through ... a common understanding and definition of the applicable terms”). I therefore assume that “deviant” and “morbid” carry the meaning that they convey in ordinary speech. The adjective “deviant” ordinarily means “deviating . . . from some accepted norm,” and the term “morbid” means “of, re­lating to, or characteristic of disease.” Webster’s 618, 1469. A “deviant or morbid interest” in violence, therefore, ap­pears to be an interest that deviates from what is regarded— presumably in accordance with some generally accepted standard — as normal and healthy. Thus, the application of the California law is heavily dependent on the identification of generally accepted standards regarding the suitability of violent entertainment for minors.

The California Legislature seems to have assumed that these standards are sufficiently well known so that a person of ordinary intelligence would have fair notice as to whether the kind and degree of violence in a particular game is enough to qualify the game as “violent.” And because the Miller test looks to community standards, the legislature may have thought that the use of undefined community standards in the violent video game law would not present vagueness problems.

There is a critical difference, however, between obscenity laws and laws regulating violence in entertainment. By the time of this Court’s landmark obscenity cases in the 1960’s, obscenity had long been prohibited, see Roth, 354 U. S., at 484-485, and this experience had helped to shape certain generally accepted norms concerning expression related to sex.

There is no similar history regarding expression related to violence. As the Court notes, classic literature contains descriptions of great violence, and even children’s stories sometimes depict very violent scenes. See ante, at 795-797.

Although our society does not generally regard all depic­tions of violence as suitable for children or adolescents, the prevalence of violent depictions in children’s literature and entertainment creates numerous opportunities for reason­able people to disagree about which depictions may excite “deviant” or “morbid” impulses. See Edwards & Berman, Regulating Violence on Television, 89 Nw. U. L. Rev. 1487, 1523 (1995) (observing that the Miller test would be difficult to apply to violent expression because “there is nothing even approaching a consensus on low-value violence”).

Finally, the difficulty of ascertaining the community stand­ards incorporated into the California law is compounded by the legislature’s decision to lump all minors together. The California law draws no distinction between young children and adolescents who are nearing the age of majority.

In response to a question at oral argument, the attorney defending the constitutionality of the California law said that the State would accept a narrowing construction of the law under which the law’s references to “minors” would be inter­preted to refer to the oldest minors — that is, those just short of 18. Tr. of Oral Arg. 11-12. However, “it is not within our power to construe and narrow state laws.” Grayned, 408 U. S., at 110. We can only “ ‘extrapolate [their] allowable meaning’” from the statutory text and authoritative inter­pretations of similar laws' by courts of the State. Ibid. (quoting Garner v. Louisiana, 368 U. S. 157, 174 (1961) (Frankfurter, J., concurring in judgment)).

In this case, California has not provided any evidence that the California Legislature intended the law to be limited in this way, or cited any decisions from its courts that would support an “oldest minors” construction.5

For these reasons, I conclude that the California violent video game law fails to provide the fair notice that the Con­stitution requires. And I would go no further. I would not express any view on whether a properly drawn statute would or would not survive First Amendment scrutiny. We should address that question only if and when it is necessary to do so.

II

Having outlined how I would decide this case, I will now briefly elaborate on my reasons for questioning the wisdom of the Court’s approach. Some of these reasons are touched upon by the dissents, and while I am not prepared at this time to go as far as either Justice Thomas or Justice Breyer, they raise valid concerns.

A

The Court is wrong in saying that the holding in United States v. Stevens, 559 U. S. 460 (2010), “controls this case.” Ante, at 792. First, the statute in Stevens differed sharply from the statute at issue here. Stevens struck down a law that broadly prohibited any person from creating, selling, or possessing depictions of animal cruelty for commercial gain. The California law involved here, by contrast, is limited to the sale or rental of violent video games to minors. The California law imposes no restriction on the creation of vio­lent video games, or on the possession of such games by any­one, whether above or below the age of 18. The California law does not regulate the sale or rental of violent games by adults. And the California law does not prevent parents and certain other close relatives from buying or renting vio­lent games for their children or other young relatives if they see fit.

Second, Stevens does not support the proposition that a law like the one at issue must satisfy strict scrutiny. The portion of Stevens on which the Court relies rejected the Government’s contention that depictions of animal cruelty were categorically outside the range of any First Amend­ment protection. 559 U. S., at 471-472. Going well beyond Stevens, the Court now holds that any law that attempts to prevent minors from purchasing violent video games must satisfy strict scrutiny instead of the more lenient standard applied in Ginsberg, 390 U. S. 629, our most closely related precedent. As a result of today’s decision, a State may pro­hibit the sale to minors of what Ginsberg described as “girlie magazines,” but a State must surmount a formidable (and perhaps insurmountable) obstacle if it wishes to prevent chil­dren from purchasing the most violent and depraved video games imaginable.

Third, Stevens expressly left open the possibility that a more narrowly drawn statute targeting depictions of animal cruelty might be compatible with the First Amendment. See 559 U. S., at 482. In this case, the Court’s sweeping opinion will likely be read by many, both inside and outside the video-game industry, as suggesting that no regulation of minors’ access to violent video games is allowed — at least without supporting evidence that may not be realistically ob­tainable given the nature of the phenomenon in question.

B

The Court’s opinion distorts the effect of the California law. I certainly agree with the Court that the government has no “free-floating power to restrict the ideas to which chil­dren may be exposed,” ante, at 794-795, but the California law does not exercise such a power. If parents want their child to have a violent video game, the California law does not interfere with that parental prerogative. Instead, the California law reinforces parental decisionmaking in exactly the same way as the New York statute upheld in Ginsberg. Under both laws, minors are prevented from purchasing cer­tain materials; and under both laws, parents are free to sup­ply their children with these items if that is their wish.

Citing the video-game industry’s voluntary rating system, the Court argues that the California law does not “meet a substantial need of parents who wish to restrict their chil­dren’s access to violent video games but cannot do so.” Ante, at 803. The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, Brief for Activision Blizzard, Inc., as Amicus Curiae 7-10, a threat that the Court’s opinion may now be seen as largely eliminating. Nor does the Court ac­knowledge that compliance with this system at the time of the enactment of the California law left much to be de­sired6 — or that future enforcement may decline if the video-­game industry perceives that any threat of government reg­ulation has vanished. Nor does the Court note, as Justice Breyer points out, see post, at 849-850 (dissenting opinion), that many parents today are simply not able to monitor their children's use of computers and gaming devices.

C

Finally, the Court is far too quick to dismiss the possibility that the experience of playing video games (and the effects on minors of playing violent video games) may be very dif­ferent from anything that we have seen before. Any assess­ment of the experience of playing video games must take into account certain characteristics of the video games that are now on the market and those that are likely to be available in the near future.

Today's most advanced video games create realistic alter­native worlds in which millions of players immerse them­selves for hours on end. These games feature visual imag­ery and sounds that are strikingly realistic, and in the near future video-game graphics may be virtually indistinguish­able from actual video footage.7 Many of the games already on the market can produce high definition images,8 and it is predicted that it will not be long before video-game images will be seen in three dimensions.9 It is also forecast that video games will soon provide sensory feedback.10 By wear­ing a special vest or other device, a player will be able to experience physical sensations supposedly felt by a character on the screen.11 Some amici who support respondents fore­see the day when “ ‘virtual-reality shoot-'em-ups’ ” will allow children to “‘actually feel the splatting blood from the blown-off head’ ” of a victim. Brief for Reporters Commit­tee for Freedom of the Press et al. as Amici Curiae 29 (quot­ing H. Schechter, Savage Pastimes 18 (2005)).

Persons who play video games also have an unprecedented ability to participate in the events that take place in the vir­tual worlds that these games create. Players can create their own video-game characters and can use photos to produce characters that closely resemble actual people. A person playing a sophisticated game can make a multitude of choices and can thereby alter the course of the action in the game. In addition, the means by which players control the action in video games now bear a closer relationship to the means by which people control action in the real world. While the action in older games was often directed with but­tons or a joystick, players dictate the action in newer games by engaging in the same motions that they desire a character in the game to perform.12 For example, a player who wants a video-game character to swing a baseball bat — either to hit a ball or smash a skull — could bring that about by simu­lating the motion of actually swinging a bat.

These present-day and emerging characteristics of video games must be considered together with characteristics of the violent games that have already been marketed.

In some of these games, the violence is astounding.13 Vic­tims by the dozens are killed with every imaginable imple­ment, including machineguns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, de­capitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy. Blood gushes, splatters, and pools. Severed body parts and gobs of human remains are graphically shown. In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed.

It also appears that there is no antisocial theme too base for some in the video-game industry to exploit. There are games in which a player can take on the identity and reenact the killings carried out by the perpetrators of the murders at Columbine High School and Virginia Tech.14 The objec­tive of one game is to rape a mother and her daughters;15 in another, the goal is to rape Native American women.16 There is a game in which players engage in “ethnic cleans­ing” and can choose to gun down African-Americans, Lat­inos, or Jews.17 In still ahother game, players attempt to fire a rifle shot into the head of President Kennedy as his motorcade passes by the Texas School Book Depository.18

If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow trou­bled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.

The Court is untroubled by this possibility. According to the Court, the “interactive” nature of video games is “noth­ing new” because “all literature is interactive.” Ante, at 798. Disagreeing with this assessment, the International Game Developers Association (IGDA) — a group that presum­ably understands the nature of video games and that sup­ports respondents — tells us that video games are “far more concretely interactive.” Brief for IGDA et al. as Amici Cu­riae 3. And on this point, the game developers are surely correct.

It is certainly true, as the Court notes, that “ ‘[literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and suffer­ings as the reader’s own.’ ” Ante, at 798 (quoting American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001)). But only an extraordinarily imaginative . reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads the passage in Crime and Pun­ishment in which Raskolnikov kills the old pawnbroker with an ax. See F. Dostoyevsky, Crime and Punishment 78 (Mod­ern Library ed. 1950). Compare that reader with a video-­game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill the victim and decides to do so; who then pretends to grasp an ax, to raise it above the head of the victim, and then to bring it down; who hears the thud of the ax hitting her head and her cry of pain; who sees her split skull and feels the sensation of blood on his face and hands. For most people, the two experiences will not be the same.19

When all of the characteristics of video games are taken into account, there is certainly a reasonable basis for think­ing that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand.

* * *

For all these reasons, I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative ef­forts to deal with what is perceived by some to be a signifi­cant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Govern­ment, we can consider the constitutionality of those laws when cases challenging them are presented to us.

1

It is well established that a judgment may be affirmed on an alterna­tive ground that was properly raised but not addressed by the lowor court. Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 476-478, n. 20 (1979).

2

Under the California law, a game that meets the threshold requirement set out in text also qualifies as “violent” if it “[e]nables 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 that it involves torture or serious physical abuse to the victim.” § 1746(d)(1)(B). In the Court of Appeals, Califor­nia conceded that this alternative definition is unconstitutional, Video Soft­ware Dealers Assn. v. Schwarzenegger, 556 F. 3d 950, 954, n. 5 (CA9 2009), and therefore only the requirements set out in text are now before us.

3

The provision of New York law under which the petitioner was con­victed in Ginsberg v. New York, 390 U. S. 629 (1968), was framed with similar specificity. This provision applied to depictions of “nudity” and “sexual conduct,” and both those terms were specifically and unambigu­ously defined. See id., at 645-647 (Appendix A to opinion of the Court).

4

The California law does not define the term “maiming,” nor has the State cited any decisions from its courts that define the term in this con­text. Accordingly, I take the term to have its ordinary meaning, which includes the infliction of any serious wound, see Webster’s Third New In­ternational Dictionary 1362 (2002) (hereinafter Webster’s).

5

At oral argument, California also proposed that the term “minors” could be interpreted as referring to the “typical age group of minors” who play video games. Tr. of Oral Arg. 11. But nothing in the law’s text supports such a limitation. Nor has California cited any decisions indicat­ing that its courts would restrict the law in this way. And there is noth­ing in the record indicating what this age group might be.

6

A 2004 Federal Trade Commission Report showed that 69 percent of unaccompanied children ages 13 to 16 were able to buy M-rated games and that 56 percent of 13-year-olds were able to buy an M-rated game. Marketing Violent Entertainment to Children: A Fourth Follow-Up Re­view of Industry Practices in the Motion Picture, Music Recording & Elec­tronic Game Industries 26-28 (July 2004), http://www.ftc.gov/os/2004/07/ 040708kidsvioleneerpt.pdf (all Internet materials as visited June 24, 2011, and available in Clerk of Court’s ease file).

7

See Chayka, Visual Games: Photorealism in Crisis, Kill Screen (May 2011), http://killscreendaily.con3/artieles/visual-games-photorealism-crisis.

8

To see brief video excerpts from games with highly realistic graphics, see Spike TV Video Game Awards 2010 — Game of the Year Nominees, GameTrailers.com (Dec. 10, 2010), http://www.gametrailers.com/video/ game-of-spike-tv-vga/707755?type=flv.

9

See Selleck, Sony PSS Launching 50 3D-Capable Video Games in the Near Future, SlashGear (Nov. 23, 2010), http://www.slashgear.com/ sony-ps3-launching-50-3d-eapable-video-games-in-the-near-future-23115866; Sofge, Why 3D Doesn’t Work for TV, But Is Great for Gaming, Popular Mechanics (Mar. 11, 2010), http://www.popularmechanies.com/teehnology/ digital/gaming/4342437.

10

T. Chatfield, Fun Inc.: Why Games Axe the Twenty-first Century's Most Serious Business 211 (2010) (predicting that “[w]e can expect . . . physical feedback and motion detection as standard in every gaming de­vice in the near future”); J. Blascovich & J. Bailenson, Infinite Reality: Avatars, Eternal Life, New Worlds, and the Dawn of the Virtual Revolu­tion 2 (2011) (“Technological developments powering virtual worlds are accelerating, ensuring that virtual experiences will become more immer-­sive by providing sensory information that makes people feel they are ‘inside’ virtual worlds” (emphasis in the original)).

11

See Topolsky, The Mindwire V5 Turns Gaming Into Pure Electroshock Torture, Engadget (Mar. 9, 2008), http://www.engadget.com/2008/08/09/ the-mindwire-v5-turns-gaming-into-pure-eleetroshock-torture; Greenemeier, Video Game Vest Simulates Sensation of Being Capped, Scientific Amer­ican (Oct. 25, 2007), http://www.scientificamerican.com/article.efm?id= video-game-vest-simulates.

12

See Schiesel, A Real Threat Now Faces the Nintendo Wii, N. Y. Times, Dec. 3, 2010, p. F7 (describing how leading developers of video-game con­soles are competing to deliver gesture-controlled gaming devices).

13

For a sample of violent video games, see Wilson, The 10 Most Vio­lent Video Games of All Time, PCMag.com (Feb. 10, 2011), http:// www.pcmag.com/article2/0,2817,2379959,OO.asp. To see brief video ex­cerpts from violent games, see Chomik, Top 10: Most Violent Video Games, AskMen.com, http://www.askmen.com/top_10/videogame/top-­10-most-violent-video-games.html; Sayed, 15 Most Violent Video Games That Made You Puke, Gamingbolt (May 2, 2010), http://gamingbolt.com/ 15-most-violent-video-games-that-made-you-puke.

14

Webley, “School Shooter” Video Game To Reenact Columbine, Virginia Tech Killings, Time (Apr. 20, 2011), http://newsfeed.time.com/2011/04/20/ sehool-shooter-video-game-reenaets-columbine-virginia-tech-killings. After a Web site that made School Shooter available for download re­moved it in response to mounting criticism, the developer stated that it may make the game available on its own Web site. Inside the Sick Site of a School Shooter Mod (Mar. 26, 2011), http://ssnat.com.

15

Lah, “RapeLay” Video Game Goes Viral Amid Outrage, CNN (Mar. 30, 2010), http://articles.cnn.com/2010-03-30/world/japanwideo. game.rape_l_game-teenage-girl-japanese-government?_s=PM:WORLD.

16

Graham, Custer May Be Shot Down Again in a Battle of the Sexes Over X-Rated Video Games, People, Nov. 15, 1982, pp. 110, 115.

17

Scheeres, Games Elevate Hate to Next Level, Wired (Feb. 20, 2002), http://www.wired.com/print/culture/lifestyle/news/2002/02/50523.

18

Thompson, A View to a Kill: JFK Reloaded Is Just Plain Creepy, Slate (Nov. 22, 2004), http://www.slate.com/id/2110034.

19

As the Court notes, there are a few children’s books that ask young readers to step into the ohooo of a character and to malee choices that take the stories along one of a very limited number of possible lines. See ante, at 798. But the very nature of the print medium makes it impossible for a book to offor anything like the same number of choices as those provided by a video game.

Justice Thomas,

dissenting.

The Court’s decision today does not comport with the orig­inal public understanding of the First Amendment. The majority strikes down, as facially unconstitutional, a state law that prohibits the direct sale or rental of certain video games to minors because the law “abridges] the freedom of speech.” U. S. Const., Arndt. 1. But I do not think the First Amendment stretches that far. The practices and be­liefs of the founding generation establish that “the freedom of speech,” as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians. I would hold that the law at issue is not facially unconstitu­tional under the First Amendment, and reverse and remand for further proceedings.1

I

When interpreting a constitutional provision, “the goal is to discern the most likely public understanding of [that] provision at the time it was adopted.” McDonald v. Chi­cago, 561 U. S. 742, 828 (2010) (Thomas, J., concurring in part and concurring in judgment). Because the Constitution is a written instrument, “its meaning does not alter.” McIntyre v. Ohio Elections Comm'n, 514 U. S. 334, 359 (1995) (Thomas, J., concurring in judgment) (internal quotation marks omitted). “That which it meant when adopted, it means now.” Ibid, (internal quotation marks omitted).

As originally understood, the First Amendment’s protec­tion against laws “abridging the freedom of speech” did not extend to all speech. “There are certain well-defined and narrowly limited classes of speech, the prevention and pun­ishment of which have never been thought to raise any Con­stitutional problem.” Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942); see also United States v. Stevens, 559 U. S. 460, 468-469 (2010). Laws regulating such speech do not “abridg[e] the freedom of speech” because such speech is understood to fall outside “the freedom of speech.” See Ashcroft v. Free Speech Coalition, 535 U. S. 234, 245-246 (2002).

In my view, the “practices and beliefs held by the Found­ers” reveal another category of excluded speech: speech to minor children bypassing their parents. McIntyre, supra, at 360. The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that author­ity to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents. Cf. Brief for Common Sense Media as Amicus Curiae 12-15. The founding gener­ation would not have considered it an abridgment of “the freedom of speech” to support parental authority by restrict­ing speech that bypasses minors’ parents.

A

Attitudes toward children were in a state of transition around the time that the States ratified the Bill of Rights. A complete understanding of the founding generation’s views on children and the parent-child relationship must therefore begin roughly a century earlier, in colonial New England.

In the Puritan tradition common in the New England Colo­nies, fathers ruled families with absolute authority. “The patriarchal family was the basic building block of Puri­tan society.” S. Mintz, Huck’s Raft 13 (2004) (hereinafter Mintz); see also R. MacDonald, Literature for Children in England and America From 1646 to 1774, p. 7 (1982) (herein­after MacDonald). The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure. Mintz 13.

Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and . . . make them apply their knowledge in right action.” E. Morgan, The Puritan Family 97 (rev. ed. 1966) (hereinafter Morgan). Puritans thought children were “innately sinful and that par­ents’ primary task was to suppress their children’s natural depravity.” S. Mintz & S. Kellogg, Domestic Revolutions 2 (1988) (hereinafter Mintz & Kellogg); see also B. Wadsworth, The Well-Ordered Family 55 (1712) (“Children should not be left to themselves ... to do as they please;. . . not being fit to govern themselves”); C. Mather, A Family Well-Ordered 38 (1699). Accordingly, parents were not to let their chil­dren read “vain Books, profane Ballads, and filthy Songs” or “fond and amorous Romances, . . . fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like.” The History of Genesis, pp. vi-vii (3d ed. cor­rected 1708).

This conception of parental authority was reflected in laws at that time. In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone else) to entertain children without their parents’ consent. 2 Records and Files of the Quarterly Courts of Essex County, Massachu­setts, p. 180 (1912); 4 id., at 237, 275 (1914); 5 id., at 143 (1916); see also Morgan 146. And a “stubborn or REBEL­LIOUS SON” of 16 years or more committed a capital of­fense if he disobeyed “the voice of his Father, or the voice of his Mother.” The Laws and Liberties of Massachusetts 6 (1648) (reprint M. Farrand ed. 1929); see also J. Kamensky, Governing the Tongue 102, n. 14 (1997) (citing similar laws in the Connecticut, New Haven, Plymouth, and New Hamp­shire Colonies in the late 1600’s).

B

In the decades leading up to and following the Revolution, attitudes toward children changed. See, e.g., J. Reinier, From Virtue to Character: American Childhood, 1775-1850, p. 1 (1996) (hereinafter Reinier). Children came to be seen less as innately sinful and more as blank slates requiring careful and deliberate development. But the same over­arching principles remained. Parents continued to have both the right and duty to ensure the proper development of their children. They exercised significant authority over their children, including control over the books that children read. And laws at the time continued to reflect strong sup­port for parental authority and the sense that children were not fit to govern themselves.

1

The works of John Locke and Jean-Jacques Rousseau were a driving force behind the changed understanding of children and childhood. See id., at 2-5; H. Brewer, By Birth or Con­sent 97 (2005) (hereinafter Brewer); K. Calvert, Children in the House 59-60 (1992) (hereinafter Calvert). Locke taught that children’s minds were blank slates and that parents therefore had to be careful and deliberate about what their children were told and observed. Parents had only them­selves to blame if, “by humouring and cockering” their chil­dren, they “poison’d the fountain” and later “taste[d] the bit­ter waters.” Some Thoughts Concerning Education (1692), in 37 English Philosophers of the Seventeenth and Eight­eenth Centuries 27-28 (C. Eliot ed. 1910). All vices, he ex­plained, were sowed by parents and “those about children.” Id., at 29. Significantly, Locke did not suggest circumscrib­ing parental authority but rather articulated a new basis for it. Rousseau disagreed with Locke in important respects, but his philosophy was similarly premised on parental con­trol over a child’s development. Although Rousseau advo­cated that children should be allowed to develop naturally, he instructed that the environment be directed by “a tutor who is given total control over the child and who removes him from society, from all competing sources of authority and influence.” J. Fliegelman, Prodigals and Pilgrims 30 (1982) (hereinafter Fliegelman); see also Reinier 15.

These writings received considerable attention in Amer­ica. Locke’s An Essay Concerning Human Understanding and his Some Thoughts Concerning Education were signifi­cantly more popular than his Two Treatises of Government, according to a study of 92 colonial libraries between 1700 and 1776. Lundberg & May, The Enlightened Reader in Amer­ica, 28 American Quarterly 262, 273 (1976) (hereinafter Lund­berg). And Rousseau’s Emile, a treatise on education, was more widely advertised and distributed than his politi­cal work, The Social Contract. Fliegelman 29; see also Lundberg 285. In general, the most popular books in the Colonies on the eve of the American Revolution were not political discourses but ones concerned with child rearing. See Mintz & Kellogg 45.

2

Locke’s and Rousseau’s writings fostered a new conception of childhood. Children were increasingly viewed as mallea­ble creatures, and childhood came to be seen as an important period of growth, development, and preparation for adult­hood. See id., at 17, 21, 47; M. Grossberg, Governing the Hearth 8 (1985) (hereinafter Grossberg). Noah Webster, called the father of American education, wrote that “[t]he impressions received in early life usually form the characters of individuals.” On the Education of Youth in America (1790) (hereinafter Webster), in Essays on Education in the Early Republic 43 (F. Rudolph ed. 1965) (hereinafter Ru­dolph); cf. Slater, Noah Webster: Founding Father of Ameri­can Scholarship and Education, in Noah Webster’s First Edi­tion of an American Dictionary of the English Language (1967). Elizabeth Smith, sister-in-law to John Adams, simi­larly wrote: “The Infant Mind, I beleive[,] is a blank, that eassily receives any impression.” M. Norton, Liberty’s Daughters 101 (1996) (hereinafter Norton) (internal quota­tion marks omitted; alteration in original); see also S. Dog­gett, A Discourse on Education (1796) (hereinafter Doggett), in Rudolph 151 (“[I]n early youth,... every power and capac­ity is pliable and susceptible of any direction or impression”); J. Abbott, The Mother at Home 2 (1834) (hereinafter Abbott) ('What impressions can be more strong, and more lasting, than those received upon the mind in the freshness and the susceptibility of youth”).

Children lacked reason and decisionmaking ability. They “have not Judgment or Will of their own,” John Adams noted. Letter to James Sullivan (May 26,1776), in 4 Papers of John Adams 210 (R. Taylor ed. 1979); see also Vol. 1 1787: Drafting the Constitution, p. 229 (W. Benton ed. 1986) (quot­ing Gouverneur Morris in James Madison’s notes from the Constitutional Convention explaining that children do not vote because they “want prudence” and “have no will of their own”). Children’s “utter incapacity” rendered them “almost wholly at the mercy of their Parents or Instructors for a set of habits to regulate their whole conduct through life.” J. Burgh, Thoughts on Education 7 (1749) (hereinafter Burgh) (emphasis deleted).

This conception of childhood led to great concern about influences on children. ‘Touth are ever learning to do what they see others around them doing, and these imitations grow into habits.” Doggett, in Rudolph 151; see also B. Rush, A Plan for the Establishment of Public Schools (1786) (hereinafter Rush), in Rudolph 16 (“The vices of young people are generally learned from each other”); Webster, in Rudolph 58 (“[C]hildren, artless and unsuspecting, resign their hearts to any person whose manners are agreeable and whose conduct is respectable”). Books therefore advised parents “not to put children in the way of those whom you dare not trust.” L. Child, The Mother’s Book 149 (1831) (hereinafter Child); see also S. Coontz, The Social Origins of Private Life 149-150 (1988) (noting that it was “considered dangerous to leave children to the supervision of servants or apprentices”).

As a result, it was widely accepted that children needed close monitoring and carefully planned development. See B. Wishy, The Child and the Republic 24-25, 32 (1968) (herein­after Wishy); Grossberg 8. Managing the young mind was considered “infinitely important.” Doggett, in Rudolph 151; see also A. MacLeod, A Moral Tale 72-73 (1975) (hereinafter MacLeod). In an essay on the education of youth in Amer­ica, Noah Webster described the human mind as “a rich field, which, without constant care, will ever be covered with a luxuriant growth of weeds.” Rudolph 54. He advocated sheltering children from “every low-bred, drunken, immoral character” and keeping their minds “untainted till their rea­soning faculties have acquired strength and the good princi­ples which may be planted in their minds have taken deep root.” Id., at 63; see also Rush, in id., at 16 (“[T]he most useful citizens have been formed from those youth who have never known or felt their own wills till they were one and twenty years of age”); Burgh 7 (“[T]he souls of Youth are more immediately committed to the care of their Parents and Instructors than even those of a People are to their Pastor”).

The Revolution only amplified these concerns. The Re­public would require virtuous citizens, which necessitated proper training from childhood. See Mintz 54, 71; MacLeod 40; Saxton, French and American Childhoods, in Children and Youth in a New Nation 69 (J. Marten ed. 2009) (herein­after Marten); see also W. Cardell, Story of Jack Halyard, pp. xv-xvi (30th ed. 1834) (hereinafter Cardell) (“[T]he glory and efficacy of our institutions will soon rest with those who are growing up to succede us”). Children were “the pivot of the moral world,” and their proper development was “a subject of as high interest, as any to which the human mind ha[d] ever been called.” Id., at xvi.

3

Based on these views of childhood, the founding genera­tion understood parents to have a right and duty to govern their children’s growth. Parents were expected to direct the development and education of their children and ensure that bad habits did not take root. See Calvert 58-59; Mac­Leod 72; Mintz & Kellogg 23. They were responsible for instilling “moral prohibitions, behavioral standards, and a ca­pacity for self-government that would prepare a child for the outside world.” Mintz & Kellogg 58; see also Youth’s Com­panion, Apr. 16, 1827, p. 1 (hereinafter Youth’s Companion) (“Let [children’s] minds be formed, their hearts prepared, and their characters moulded for the scenes and the duties of a brighter day”). In short, “[h]ome and family bore the major responsibility for the moral training of children and thus, by implication, for the moral health of the nation.” MacLeod 29; see also Introduction, in Marten 6; Reinier, p. xi; Smith, Autonomy and Affection: Parents and Children in Eighteenth-Century Chesapeake Families, in Growing up in America 54 (N. Hiner & J. Hawes eds. 1985).

This conception of parental rights and duties was exempli­fied by Thomas Jefferson’s approach to raising children. He wrote letters to his daughters 'constantly and often gave spe­cific instructions about what the children should do. See, e. g., Letter to Martha Jefferson (Nov. 28, 1783), in S. Ran­dolph, The Domestic Life of Thomas Jefferson 44 (1939) (dic­tating her daily schedule of music, dancing, drawing, and studying); Letter to Martha Jefferson (Dec. 22, 1783), in id., at 45-46 (“I do not wish you to be gaily clothed at this time of life .... [AJbove all things and at all times let your clothes be neat, whole, and properly put on”). Jefferson ex­pected his daughter, Martha, to write “by every post” and instructed her, “Inform me what books you read [and] what tunes you learn.” Letter (Nov. 28, 1783), in id., at 44. He took the same approach with his nephew, Peter Carr, after Carr’s father died. See Letter (Aug. 19, 1785), in 8 The Pa­pers of Thomas Jefferson 405-408 (J. Boyd ed. 1953) (detail­ing a course of reading and exercise, and asking for monthly progress reports describing “in what manner you employ every hour in the day”); see also 3 Dictionary of Virginia Biography 29 (2006).

Jefferson’s rigorous management of his charges was not uncommon. “[M]uch evidence indicates that mothers and fa­thers both believed in giving their children a strict upbring­ing, enforcing obedience to their commands and stressing continued subjection to the parental will.” Norton 96. Two parenting books published in the 1830’s gave prototypi­cal advice. In The Mother’s Book, Lydia Child advised that “[t]he first and most important step in management is, that whatever a mother says, always must be done.” Child 26. John Abbott, the author of The Mother at Home, likewise advised that “[o]bedience is absolutely essential to proper family government.” Abbott 18. Echoing Locke, Abbott warned that parents who indulged a child’s “foolish and un­reasonable wishes” would doom that child to be indulgent in adulthood. Id., at 16.

The concept of total parental control over children’s lives extended into the schools. “The government both of fami­lies and schools should be absolute,” declared Noah Webster. Rudolph 57-58. Dr. Benjamin Rush concurred: “In the edu­cation of youth, let the authority of our masters be as abso­lute as possible.” Id., at 16. Through the doctrine of in loco parentis, teachers assumed the “ ‘sacred dut[y] of par­ents ... to train up and qualify their children’ ” and exercised the same authority “ ‘to command obedience, to control stub­bornness, to quicken diligence, and to reform bad habits.’ ” Morse v. Frederick, 551 U. S. 393, 413-414 (2007) (Thomas, J., concurring) (quoting State v. Pendergrass, 19 N. C. 365, 365-366 (1837)); see also Wishy 73. Thus, the quality of teachers and schools had to “be watched with the most scru­pulous attention.” Webster, in Rudolph 64.

For their part, children were expected to be dutiful and obedient. Mintz & Kellogg 53; Wishy 31; cf. J. Kett, Rites of Passage 45 (1977). Schoolbooks instructed children to do so and frequently featured vignettes illustrating the con­sequences of disobedience. See Adams, “Pictures of the Vicious ultimately overcome by misery and shame”: The Cultural Work of Early National Schoolbooks (hereinafter Adams), in Marten 156. One of trelated example was the hangings of 19 alleged witches in 1692, which, the school­books noted, likely began with false complaints by two young girls. See J. Morse, The American Geography 191 (1789); see also Adams, in Marten 164.

An entire genre of books, “loosely termed ‘advice to youth,’” taught similar lessons well into the 1800’s. J. Demos, Circles and Lines: The Shape of Life in Early America 73 (2004); cf. Wishy 54. “Next to your duty to God,” advised one book, “is your duty to your parents,” even if the child did not “understand the reason of their com­mands.” L. Sigourney, The Girl’s Reading Book 44 (14th ed. 1843); see also Filial Duty Recommended and Enforced, In­troduction, p. iii (c. 1798); The Parent’s Present 44 (3d ed. 1841). “Disobedience is generally punished in some way or other,” warned another, “and often very severely.” S. Good­rich, Peter Parley’s Book of Fables 43 (1836); see also The Country School-House 27 (1848) (“[T]he number of children who die from the effects of disobedience to their parents is very large”).

4

Society’s concern with children’s development extended to the books they read. “Vice always spreads by being pub­lished,” Noah Webster observed. Rudolph 62. “[Y]oung people are taught many vices by fiction, books, or public ex­hibitions, vices which they never would have known had they never read such books or attended such public places.” Ibid.; see also Cardell, p. xii (cautioning parents that “[t]he first reading lessons for children have an extensive influence on the acquisitions and habits of future years”); Youth’s Com­panion 1 (“[T]he capacities of children, and the peculiar situa­tion and duties of youth, require select and appropriate read­ing”). Prominent children’s authors harshly criticized fairy tales and the use of anthropomorphic animals. See, e. g., S. Goodrich, 2 Recollections of a Lifetime 320, n.* (1856) (de­scribing fairy tales as “calculated to familiarize the mind with things shocking and monstrous; to cultivate a taste for tales of bloodshed and violence; to teach the young to use coarse language, and cherish vulgar ideás;... and to fill [the youthful mind] with the horrors of a debased and debauched fancy”); 1 id., at 167 (recalling that children’s books were “full of nonsense” and “lies”); Cardell, p. xiv (“The fancy of converting inferior animals into Teachers of children,’ has been carried to ridiculous extravagance”); see also MacDon­ald 83, 103 (noting that fables and works of fantasy were not popular in America in the 1700’s).

Adults carefully controlled what they published for chil­dren. Stories written for children were dedicated to moral instruction and were relatively austere, lacking details that might titillate children’s minds. See MacLeod 24-25, 42-48; see also id., at 42 (“The authors of juvenile fiction imposed the constraints upon themselves in the name of duty, and for the sake of giving to children what they thought children should have, although they were often well aware that chil­dren might prefer more exciting fare”); Francis, American Children’s Literature, 1646-1880, in American Childhood 208-209 (J. Hawes & N. Hiner eds. 1985). John Newbery, the publisher often credited with creating the genre of chil­dren’s literature, removed traditional folk characters, like Tom Thumb, from their original stories and placed them in new morality tales in which good children were rewarded and disobedient children punished. Reinier 12.

Parents had total authority over what their children read. See A. MacLeod, American Childhood 177 (1994) (“Ideally, if not always actually, nineteenth-century parents regulated their children’s lives fully, certainly including their read­ing”). Lydia Child put it bluntly in The Mother’s Book: “Children . . . should not read anything without a mother’s knowledge and sanction; this is particularly necessary be­tween the ages of twelve and sixteen.” Child 92; see also id., at 143 (“[P]arents, or some guardian friends, should care­fully examine every volume they put into the hands of young people”); E. Monaghan, Learning To Read and Write in Colo­nial America 337 (2005) (reviewing a 12-year-old girl’s jour­nal from the early 1770’s and noting that the child’s aunts monitored and guided her reading).

5

The law at the time reflected the founding generation’s understanding of parent-child relations. According to Sir William Blackstone, parents were responsible for maintain­ing, protecting, and educating their children, and therefore had “power” over their children. 1 Commentaries on the Laws of England 434, 440-441 (1765); cf. Washington v. Glucksberg, 521 U. S. 702, 712 (1997) (Blackstone’s Commen­taries was “a primary legal authority for 18th- and 19th-­century American lawyers”). Chancellor James Kent agreed. 2 Commentaries on American Law *189-*207. The law entitled parents to “the custody of their [children],” “the value of th[e] [children’s] labor and services,” and the “right to the exercise of such discipline as may be requisite for the discharge of their sacred trust.” Id., at *193, *203. Children, in turn, were charged with “obedience and assist­ance during their own minority, and gratitude and reverance during the rest of their lives.” Id., at *207.

Thus, in case after case, courts made clear that parents had a right to the child’s labor and services until the child reached majority. In 1810, the Supreme Judicial Court of Massachusetts explained, “There is no question but that a father, who is entitled to the services of his minor son, and for whom he is obliged to provide, may, at the common law, assign those services to others, for a consideration to enure to himself.” Day v. Everett, 7 Mass. 145, 147; see also Ben­son v. Remington, 2 Mass. 113, 115 (1806) (opinion of Par­sons, C. J.) (“The law is very well settled, that parents are under obligations to support their children, and that they are entitled to their earnings”). Similarly, the Supreme Court of Judicature of New Hampshire noted that the right of par­ents to recover for the services of their child, while a minor, “cannot be contested.” Gale v. Parrot, 1 N. H. 28, 29 (1817). And parents could bring tort suits against those who know­ingly enticed a minor away from them. See, e. g., Kirkpat­rick v. Lockhart, 2 Brev. 276 (S. C. Constitutional Ct. 1809); Jones v. Tevis, 4 Litt. 25 (Ky. App. 1823).

Relatedly, boys could not enlist in the military without pa­rental consent. Many of those who did so during the Revo­lutionary War found, afterwards, that their fathers were entitled to their military wages. See Cox, Boy Soldiers of the American Revolution, in Marten 21-24. And after the war, minors who enlisted without parental consent in viola­tion of federal law could find themselves returned home on writs of habeas corpus issued at their parents’ request. See, e. g., United States v. Anderson, 24 F. Cas. 813 (No. 14,449) (CC Tenn. 1812); Commonwealth v. Callan, 6 Binn. 255 (Pa. 1814) (per curiam).

Laws also set age limits restricting marriage without pa­rental consent. For example, from 1730 until at least 1849, Pennsylvania law required parental consent for the marriage of anyone under the age of 21. See 4 Statutes at Large of Pennsylvania 153 (J. Mitchell & H. Flanders eds. 1897) (here­inafter Pa. Stats, at Large); General Laws of Pennsylvania 82-83 (J. Dunlop 2d ed. 1849) (including the 1730 marriage law with no amendments); see also Perpetual Laws of the Commonwealth of Massachusetts 253 (1788), in The First Laws of the Commonwealth of Massachusetts (J. Cushing ed. 1981), In general, “[p]ost-Revolutionary marriage law as­sumed that below a certain age, children could ... no[t] intel­lectually understand its significance.” Grossberg 105.

Indeed, the law imposed age limits on all manner of activi­ties that required judgment and reason. Children could not vote, could not serve on juries, and generally could not be witnesses in criminal cases unless they were older than 14. See Brewer 43, 145, 148, 159. Nor could they swear loyalty to a State. See, e. g., 9 Pa. Stats, at Large 111 (1903 ed.). Early federal laws granting aliens the ability to become citi­zens provided that those under 21 were deemed citizens if their fathers chose to naturalize. See, e. g., Act of Mar. 26, 1790, 1 Stat. 104; Act of Jan. 29, 1795, ch. 20, 1 Stat. 415.

C

The history clearly shows a founding generation that be­lieved parents to have complete authority over their minor children and expected parents to direct the development of those children. The Puritan tradition in New England laid the foundation of American parental authority and duty.

See MacDonald 6 (“The Puritans are virtually the inventors of the family as we know it today”)- In the decades leading up to and following the Revolution, the conception of the child’s mind evolved but the duty and authority of parents remained. Indeed, society paid closer attention to potential influences on children than before. See Mintz 72 (“By weak­ening earlier forms of patriarchal authority, the Revolution enhanced the importance of childrearing and education in en­suring social stability”). Teachers and schools came under scrutiny, and children’s reading material was carefully super­vised. Laws reflected these concerns and often supported parental authority with the coercive power of the state.

II

A

In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an un­qualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents. As a consequence, I do not believe that laws limiting such speech — for exam­ple, by requiring parental consent to speak to a minor— “abridg[e] the freedom of speech” within the original mean­ing of the First Amendment.

We have recently noted that this Court does not have “freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” Stevens, 559 U. S., at 472. But we also recognized that there may be “some categories of speech that have been historically unpro­tected [and] have not yet been specifically identified or dis­cussed as such in our case law.” Ibid. In my opinion, the historical evidence here plainly reveals one such category.2

B

Admittedly, the original public understanding of a consti­tutional provision does not always comport with modern sen­sibilities. See Morse, 551 U. S., at 419 (Thomas, J., concur­ring) (treating students “as though it were still the 19th century would find little support today”). It may also be inconsistent with precedent. See McDonald, 561 U. S., at 851-855 (Thomas, J., concurring in part and concurring in judgment) (rejecting the Slaughter-House Cases, 16 Wall. 36 (1873), as inconsistent with the original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment).

This, however, is not such a case. Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today. For example, at least some States make it a crime to lure or entice a minor away from the minor’s parent. See, e. g., Cal. Penal Code Ann. § 272(b)(1) (West 2008); Fla. Stat. §787.03 (2010). Every State in the Union still establishes a minimum age for marriage without parental or judicial consent. Cf. Roper v. Simmons, 543 U. S. 551, 558 (2005) (Appendix D to opinion of the Court). Individuals less than 18 years old cannot en­list in the military without parental consent. 10 U. S. C. § 505(a). And minors remain subject to curfew laws across the country, see Brief for State of Louisiana et al. as Amici Curiae 16, and cannot unilaterally consent to most medical procedures, id., at 15.

Moreover, there are many things minors today cannot do at all, whether they have parental consent or not. State laws set minimum ages for voting and jury duty. See Roper, supra, at 581-585 (Appendixes B and C to opinion of the Court). In California (the State at issue here), minors can­not drive for hire or drive a school bus, Cal. Veh. Code Ann. §§12515, 12516 (West 2010), purchase tobacco, Cal. Penal Code Ann. § 308(b) (West 2008), play bingo for money, § 326.5(e), or execute a will, Cal. Prob. Code Ann. §6220 (West 2009).

My understanding of “the freedom of speech” is also con­sistent with this Court’s precedents. To be sure, the Court has held that children are entitled to the protection of the First Amendment, see, e. g., Erznoznik v. Jacksonville, 422 U. S. 205, 212-213 (1975), and the government may not uni­laterally dictate what children can say or hear, see id., at 213-214; Tinker v. Des Moines Independent Community School Dist., 393 U. S. 503, 511 (1969). But this Court has never held, until today, that “the freedom of speech” includes a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents. To the contrary, “[i]t is well settled that a State or municipality can adopt more stringent controls on communicative mate­rials available to youths than on those available to adults.” Erznoznik, supra, at 212; cf. post, at 841-842 (Breyer, J., dissenting).

The Court’s constitutional jurisprudence “historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children.”. Par­ham v. J. R., 442 U. S. 584, 602 (1979). Under that case law,

The California law at issue here forbids the sale or rental of “violent video game[s]” to minors, defined as anyone “under 18 years of age.” Cal. Civ. Code Ann. §§ 1746.1(a), 1746 (West 2009). A violation of the law is punishable by a civil fine of up to $1,000. § 1746.3. Critically, the law does not prohibit adults from buying or renting violent video games for a minor or prohibit minors from playing such games. Cf. ante, at 814 (Alito, J., concurring in judgment); post, at 848 (Breyer, J., dissenting). The law also does not restrict a “minor’s parent, grandparent, aunt, uncle, or legal guardian” from selling or renting him a violent video game. § 1746.1(c).

Respondents, associations of companies in the video game industry, brought a preenforcement challenge to California’s law, claiming that on its face the law violates the free speech rights of their members. The Court holds that video games are speech for purposes of the First Amendment and finds “legislature^] [can] properly conclude that parents and oth­ers, teachers for example, who have ... primary responsibil­ity for children’s well-being are entitled to the support of laws designed to aid discharge of that responsibility.” Gins­berg v. New York, 390 U. S. 629, 639 (1968); see also Bellotti v. Baird, 443 U. S. 622, 635 (1979) (opinion of Powell, J.) (“[T]he State is entitled to adjust its legal system to account for children’s vulnerability and their needs for concern, . . . sympathy, and . . . paternal attention” (internal quotation marks omitted)). This is because “the tradition of parental authority is not inconsistent with our tradition of individual liberty; rather, the former is one of the basic presuppositions of the latter.” Id., at 638; id., at 638-639 (“Legal restric­tions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding”).

I­II the statute facially unconstitutional. See ante, at 789-790, 799-804. I disagree.

Under any of this Court’s standards for a facial First Amendment challenge, this one must fail. The video game associations cannot show “that no set of circumstances exists under which [the law] would be valid,” “that the statute lacks any plainly legitimate sweep,” or that “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Stevens, 559 U. S., at 472, 473 (internal quotation marks omitted). Even as­suming that video games are speech, in most applications the California law does not implicate the First Amendment. All that the law does is prohibit the direct sale or rental of a violent video game to a minor by someone other than the minor’s parent, grandparent, aunt, uncle, or legal guardian. Where a minor has a parent or guardian, as is usually true, the law does not prevent that minor from obtaining a violent video game with his parent’s or guardian’s help. In the typi­cal ease, the only speech affected is speech that bypasses a minor’s parent or guardian. Because such speech does not fall within “the freedom of speech” as originally understood, California’s law does not ordinarily implicate the First Amendment and is not facially unconstitutional.3

* * *

“The freedom of speech,” as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians. Therefore, I cannot agree that the statute at issue is facially unconstitutional under the First Amendment.

I respectfully dissent.

California’s statute defines a violent video game as: A game in which a player “kill[s], maim[s], dismember[s], or sexually assault[s] an image of a human being,” and

“[a] reasonable person, considering the game as a whole, would find [the game] appeals to a deviant or morbid interest of minors,”

and

“[the game] is patently offensive to prevailing standards in the community as to what is suitable for minors,”

and

“the game, as a whole, . . . lack[s] serious literary, artis­tic, political, or scientific value for minors.” Cal. Civ. Code Ann. § 1746(d)(1) (West 2009).

The statute in effect forbids the sale of such a game to mi­nors unless they are accompanied by a parent; it requires the makers of the game to affix a label identifying it as a game suitable only for those aged 18 and over; it exempts retailers from liability unless such a label is properly affixed to the

1

Justice Alito concludes that the law is too vague to satisfy due proc­ess, but neither the District Court nor the Court of Appeals addressed that question. Ante, at 806-813 (opinion concurring in judgment). As we have often said, this Court is “one of final review, ‘not of first view.’ ” FCC v. Fox Television Stations, Inc., 556 U. S. 502, 529 (2009) (quoting Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005)).

2

The majority responds that “it does not follow” from the historical evidence “that the state has the power to prevent children from hear­ing... anything without their parents’prior consent.” Ante, at 795, n. 3. Such a conclusion, the majority asserts, would lead to laws that, in its view, would be undesirable and “obviously” unconstitutional. Ibid.

The majority’s circular argument misses the point. The question is not whether certain laws might make sense to judges or legislators today, but rather what the public likely understood “the freedom of speech” to mean when the First Amendment was adopted. See District of Columbia v. Heller, 554 U. S. 570, 634-635 (2008). I believe it is clear that the founding public would not have understood “the freedom of speech” to include speech to minor children bypassing their parents. It follows that the First Amendment imposes no restriction on state regulation of such speech. To note that there may not be “precedent for [such] state con­trol,” ante, at 795, n. 3, “is not to establish that [there] is a constitutional right,” McIntyre v. Ohio Elections Comm’n, 514 U. S. 334, 373 (1995) (Scalia, J., dissenting).

3

Whether the statute would survive an as-applied challenge in the un­usual case of an emancipated minor is a question for another day. To decide this ease, it is enough that the statute is not unconstitutional on its face.

Justice Breyer,

dissenting.

California imposes a civil fine of up to $1,000 upon any person who distributes a violent video game in California without labeling it “18,” or who sells or rents a labeled vio­lent video game to a person under the age of 18. Repre­sentatives of the video game and software industries, claim­ing that the statute violates the First Amendment on its face, seek an injunction against its enforcement. Applying traditional First Amendment analysis, I would uphold the statute as constitutional on its face and would consequently reject the industries’ facial challenge. game; and it imposes a civil fine of up to $1,000 upon a viola­tor. See §§ 1746.1-1746.3.

B

A facial challenge to this statute based on the First Amendment can succeed only if “a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” United States v. Ste­vens, 559 U. S. 460, 473 (2010) (internal quotation marks omitted). Moreover, it is more difficult to mount a facial First Amendment attack on a statute that seeks to regulate activity that involves action as well as speech. See Broad­rick v. Oklahoma, 413 U. S. 601, 614-615 (1973). Hence, I shall focus here upon an area within which I believe the State can legitimately apply its statute, namely, sales to mi­nors under the age of 17 (the age cutoff used by the indus­try’s own ratings system), of highly realistic violent video games, which a reasonable game maker would know meet the Act’s criteria. That area lies at the heart of the statute. I shall assume that the number of instances in which the State will enforce the statute within that area is compara­tively large, and that the number outside that area (for ex­ample, sales to 17-year-olds) is comparatively small. And the activity the statute regulates combines speech with ac­tion (a virtual form of target practice).

C

In determining whether the statute is unconstitutional, I would apply both this Court’s “vagueness” precedents and a strict form of First Amendment scrutiny. In doing so, the special First Amendment category I find relevant is not (as the Court claims) the category of “depictions of violence,” ante, at 795, but rather the category of “protection of chil­dren.” This Court has held that the “power of the state to control the conduct of children reaches beyond the scope of its authority over adults.” Prince v. Massachusetts, 321 U. S. 158, 170 (1944). And the “ Tegulatio[n] of communica­tion addressed to [children] need not conform to the require­ments of the [F]irst [A]mendment in the same way as those applicable to adults.’" Ginsberg v. New York, 890 U. S. 629, 638, n. 6 (1968) (quoting Emerson, Toward a General Theory of the First Amendment, 72 Yale L. J. 877, 939 (1963)).

The majority’s claim that the California statute, if upheld, would create a “new categor[y] of unprotected speech,” ante, at 791, 794, is overstated. No one here argues that depic­tions of violence, even extreme violence, automatically fall outside the First Amendment’s protective scope as, for ex­ample, do obscenity and depictions of child pornography. We properly speak of categories of expression that lack pro­tection when, like “child pornography,” the category is broad, when it applies automatically, and when the State can prohibit everyone, including adults, from obtaining access to the mate­rial within it. But where, as here, careful analysis must pre­cede a narrower judicial conclusion (say, denying protection to a shout of “fire” falsely made in a crowded theater, or to an effort to teach a terrorist group how to peacefully petition the United Nations), we do not normally describe the result as creating a “new category of unprotected speech.” See Schenck v. United States, 249 U. S. 47, 52 (1919); Holder v. Humanitarian Law Project, 561 U. S. 1 (2010).

Thus, in Stevens, after rejecting the claim that all de­pictions of animal cruelty (a category) fall outside the First Amendment’s protective scope, we went on to decide whether the particular statute at issue violates the First Amendment under traditional standards; and we held that, because the statute was overly broad, it was invalid. Simi­larly, here the issue is whether, applying traditional First Amendment standards, this statute does, or does not, pass muster.

II

In my view, California’s statute provides “fair notice of what is prohibited,” and consequently it is not impermissibly vague. United States v. Williams, 553 U. S. 285, 304 (2008). Ginsberg explains why that is so. The Court there consid­ered a New York law that forbade the sale to minors of a

“picture, photograph, drawing, sculpture, motion picture film, or similar visual representation or image of a person or portion of the human body which depicts nudity . . .

that

“predominately appeals to the prurient, shameful or morbid interest of minors,”

and

“is patently offensive to prevailing standards in the adult community as a whole with respect to what is suit­able material for minors,”

and

“is utterly without redeeming social importance for mi­nors.” 390 U. S., at 646-647.

This Court upheld the New York statute in Ginsberg (which is sometimes unfortunately confused with a very different, earlier case, Ginzburg v. United States, 383 U. S. 463 (1966)). The five-Justice majority, in an opinion written by Justice Brennan, wrote that the statute was sufficiently clear. 390 U. S., at 643-645. No Member of the Court voiced any vagueness objection. See id., at 648-650 (Stewart, J., con­curring in result); id., at 650-671 (Douglas, J., joined by Black, J., dissenting); id., at 671-675 (Portas, J., dissenting).

Comparing the language of California’s statute (set forth supra, at 840) with the language of New York’s statute (set forth immediately above), it is difficult to find any vagueness-related difference. Why are the words “kill,” “maim,” and “dismember” any more difficult to understand than the word “nudity?” Justice Alito objects that these words do “not perform the narrowing function” that this Court has required in adult obscenity cases, where statutes can only cover “ ‘hard core’ ” depictions. Ante, at 810 (opin­ion concurring in judgment). But the relevant comparison is not to adult obscenity cases but to Ginsberg, which dealt with “nudity,” a category no more “narrow5’ than killing and maiming. And in any event, narrowness and vagueness do not necessarily have anything to do with one another. All that is required for vagueness purposes is that the terms “kill,” “maim,” and “dismember” give fair notice as to what they cover, which they do.

The remainder of California’s definition copies, almost word for word, the language this Court used in Miller v. California, 413 U. S. 15 (1973), in permitting a total ban on material that satisfied its definition (one enforced with crimi­nal penalties). The California law’s reliance on “community standards” adheres to Miller, and in Fort Wayne Books, Inc. v. Indiana, 489 U. S. 46, 57-58 (1989), this Court specifically upheld the use of Miller’s language against charges of vague­ness. California only departed from the Miller formulation in two significant respects: It substituted the word “deviant” for the words “prurient” and “shameful,” and it three times added the words “for minors.” The word “deviant” differs from “prurient” and “shameful,” but it would seem no less suited to defining and narrowing the reach of the statute. And the addition of “for minors” to a version of the Miller standard was approved, in Ginsberg, supra, at 643, even though the New York law “dr[ew] no distinction between young children and adolescents who are nearing the age of majority,” ante, at 812 (opinion of Alito, J.).

Both the Miller standard and the law upheld in Ginsberg lack perfect clarity. But that fact reflects the difficulty of the Court’s long search for words capable of protecting ex­pression without depriving the State of a legitimate constitu­tional power to regulate. As is well known, at one point Justice Stewart thought he could do no better in defining obscenity than, “I know it when I see it.” Jacobellis v. Ohio, 378 U. S. 184, 197 (1964) (concurring opinion). And Justice Douglas dissented from Miller’s standard, which he thought was still too vague. 413 U. S., at 39-40. Ultimately, how­ever, this Court accepted the .“community standards” tests used in Miller and Ginsberg. They reflect the fact that sometimes, even when a precise standard proves elusive, it is easy enough to identify instances that fall within a legitimate regulation. And they seek to draw a line, which, while fa­voring free expression, will nonetheless permit a legislature to find the words necessary to accomplish a legitimate consti­tutional objective. Cf. Williams, 553 U. S., at 304 (the Consti­tution does not always require “ ‘perfect clarity and precise guidance,’” even when “‘expressive activity’” is involved).

What, then, is the difference between Ginsberg and Miller on the one hand and the California law on the other? It will often be easy to pick out cases at which California’s- statute directly aims, involving, say, a character who shoots out a police officer’s knee, douses him with gasoline, lights him on fire, urinates on his burning body, and finally kills him with a gunshot to the head. (Footage of one such game sequence has been submitted in the record.) See also ante, at 818-819 (opinion of Alito, J.). As in Miller and Ginsberg, the Cali­fornia law clearly 'protects even the most violent games that possess serious literary, artistic, political, or scientific value. § 1746(d)(1)(A)(iii). And it is easier here than in Miller or Ginsberg to separate the sheep from the goats at the stat­ute’s border. That is because here the industry itself has promulgated standards and created a review process, in which adults who “typically have experience with children” assess what games are inappropriate for minors. See En­tertainment Software Rating Board, Rating Process, online at http://www.esrb.org/ratings/&ratings_/process.jsp (all In­ternet materials as visited June 24, 2011, and available in Clerk of Court’s case file).

There is, of course, one obvious difference: The Ginsberg statute concerned depictions of “nudity,” while California’s statute concerns' extremely violent video games. But for purposes of vagueness, why should that matter? Justice Auto argues that the Miller standard sufficed because there are “certain generally accepted norms concerning ex­pression related to sex,” whereas there are no similarly “ac­cepted standards regarding the suitability of violent enter­tainment.” Ante, at 811-812. But there is no evidence that is so. The Court relied on “community standards” in Miller precisely because of the difficulty of articulating “accepted norms” about depictions of sex. I can find no difference— historical or otherwise — that is relevant to the vagueness question. Indeed, the majority’s examples of literary de­scriptions of violence, on which Justice Auto relies, do not show anything relevant at all.

After all, one can find in literature as many (if not more) descriptions of physical love as descriptions of violence. In­deed, sex “has been a theme in art and literature throughout the ages.” Ashcroft v. Free Speech Coalition, 535 U. S. 234, 246 (2002). For every Homer, there is a Titian. For every Dante, there is an Ovid. And for all the teenagers who have read the original versions of Grimm’s Fairy Tales, I suspect there are those who know the story of Lady Godiva.

Thus, I can find no meaningful vagueness-related differ­ences between California’s law and the New York law upheld in Ginsberg. And if there remain any vagueness problems, the state courts can cure them through interpretation. See Erznoznik v. Jacksonville, 422 U. S. 205, 216 (1975) (“state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts”). Cf. Ginsberg, 390 U. S., at 644 (relying on the fact that New York Court of Appeals would read a knowledge requirement into the statute); Berry v. Santa Barbara, 40 Cal. App. 4th 1075, 1088-1089, 47 Cal. Rptr. 2d 661, 669 (1995) (reading a knowledge requirement into a statute). Consequently, for purposes of this facial challenge, I would not find the statute unconstitutionally vague.

III

Video games combine physical action with expression. Were physical activity to predominate in a game, govern­ment could appropriately intervene, say, by requiring parents to accompany children when playing a game involving actual target practice, or restricting the sale of toys presenting physical dangers to children. See generally Consumer Product Safety Improvement Act of 2008, 122 Stat. 3016 (“Title I — Children’s Product Safety”). But because video games also embody important expressive and artistic-ele­ments, I agree with the Court that the First Amendment significantly limits the State’s power to regulate. And I would determine whether the State has exceeded those lim­its by applying a strict standard of review.

Like the majority, I believe that the California law must be “narrowly tailored” to further a “compelling interest,” without there being a “less restrictive” alternative that would be “at least as effective.” Reno v. American Civil Liberties Union, 621 U. S. 844, 874, 875, 879 (1997). I would not apply this strict standard “mechanically.” United States v. Playboy Entertainment Group, Inc., 529 U. S. 803, 841 (2000) (Breyer, J., joined by Rehnquist, C. J., and O’Connor and Scalia, JJ., dissenting). Rather, in applying it, I would evaluate the degree to which the statute injures speech-­related interests, the nature of the potentially justifying “compelling interests,” the degree to which the statute far-­thers that interest, the nature and effectiveness of possible alternatives, and, in light of this evaluation, whether, overall, “the statute works speech-related harm... out of proportion to the benefits that the statute seeks to provide.” Ibid. See also Burson v. Freeman, 504 U. S. 191, 210 (1992) (plural­ity opinion) (applying strict scrutiny and finding relevant the lack of a “significant impingement” on speech).

First Amendment standards applied in this way are diffi­cult but not impossible to satisfy. Applying “strict scrutiny” the Court has upheld restrictions on speech that, for exam­ple, ban the teaching of peaceful dispute resolution to a group on the State Department’s list of terrorist organiza­tions, Holder, 561 U. S., at 27-39; but cf. id., at 41 (Breyer, J., dissenting), and limit speech near polling places, Burson, supra, at 210-211 (plurality opinion). And applying less clearly defined but still rigorous standards, the Court has allowed States to require disclosure of petition signers, Doe v. Reed, 561 U. S. 186 (2010), and to impose campaign contri­bution limits that were '“closely drawn’ to match a ‘suffi­ciently important interest,’ ” Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 387-388 (2000).

Moreover, although the Court did not specify the “level of scrutiny” it applied in Ginsberg, we have subsequently described that case as finding a “compelling interest” in pro­tecting children from harm sufficient to justify limitations on speech. See Sable Communications of Cal., Inc. v. FCC, 492 U. S. 115, 126 (1989). Since the Court in Ginsberg speci­fied that the statute’s prohibition applied to material that was not obscene, 390 U. S., at 634,1 cannot dismiss Ginsberg on the ground that it concerned obscenity. But cf. ante, at 793-794 (majority opinion). Nor need I depend upon the fact that the Court in Ginsberg insisted only that the legislature have a “rational” basis for finding the depictions there at issue harmful to children. 390 U. S., at 639. For in this case, Cali­fornia has substantiated its claim of harm with considerably stronger evidence.

A

California’s law imposes no more than a modest restriction on expression. The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help. § 1746.1(c). All it pre­vents is a child or adolescent from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17. See Brief for Respondents 8.

Nor is the statute, if upheld, likely to create a precedent that would adversely affect other media, say, films, or vid­eos, or books. A typical video game involves a significant amount of physical activity. See ante, at 817-818 (Alito, J., concurring in judgment) (citing examples of the increasing interactivity of video game controllers). And pushing but­tons that achieve an interactive, virtual form of target prac­tice (using images of human beings as targets), while con­taining an expressive component, is not just like watching a typical movie. See infra, at 858.

B

The interest that California advances in support of the statute is compelling. As this Court has previously de­scribed that interest, it consists of both (1) the “basic” paren­tal claim “to authority in their own household to direct the rearing of their children,” which makes it proper to enact “laws designed to aid discharge of [parental] responsibility,” and (2) the State’s “independent interest in the well-being of its youth.” Ginsberg, 390 U. S., at 689-640. Cf. id., at 639, n. 7 (“‘[O]ne can well distinguish laws which do not impose a morality on children, but which support the right of par­ents to deal with the morals of their children as they see fit’ ” (quoting Henkin, Morals and the Constitution: The Sin of Obscenity, 63 Colum. L. Rev. 391, 413, n. 68 (1963))). And where these interests work in tandem, it is not fatally “underinclusive” for a State to advance its interests in pro­tecting children against the special harms present in an in­teractive video game medium through a default rule that still allows parents to provide their children with what their par­ents wish.

Both interests are present here. As to the need to help parents guide their children, the Court noted in 1968 that “‘parental control or guidance cannot always be provided.'” 390 U. S., at 640. Today, 5.3 million grade-school-age chil­dren of working parents are routinely home alone. See Dept, of Commerce, Census Bureau, Who's Minding the Kids? Child Care Arrangements: Spring 2005/Summer 2006, p. 12 (2010), online at http://www.census.gov/prod/2010pubs/ p70-121.pdf. Thus, it has, if anything, become more impor­tant to supplement parents’ authority to guide their chil­dren’s development.

As to the State’s independent interest, we have pointed out that juveniles are more likely to show a “ ‘lack of matu­rity”’ and are “more vulnerable or susceptible to negative influences and outside pressures,” and that their “character . . . is not as well formed as that of an adult.” Roper v. Simmons, 543 U. S. 551, 569-570 (2005). And we have therefore recognized “a compelling interest in protecting the physical and psychological well-being of minors.” Sable Communications, supra, at 126.

At the same time, there is considerable evidence that Cali­fornia’s statute significantly furthers this compelling inter­est. That is, in part, because video games are excellent teaching tools. Learning a practical task often means de­veloping habits, becoming accustomed to performing the task, and receiving positive reinforcement when performing that task well. Video games can help develop habits, accus­tom the player to performance of the task, and reward the player for performing that task well. Why else would the Armed Forces incorporate video games into its training? See CNN, War Games: Military Training Goes High-Tech (Nov. 22, 2001), online at http://artieles.cnn.com/2001-11-2/ tech/2war.games_l_ictbill-swartout-real-world-traimng?_s= PM.-TECH.

When the military uses video games to help soldiers train for missions, it is using this medium for a beneficial purpose. But California argues that when the teaching features of video games are put to less desirable ends, harm can ensue. In particular, extremely violent games can harm children by rewarding them for being violently aggressive in play, and thereby often teaching them to be violently aggressive in life. And video games can cause more harm in this respect than can typically passive media, such as books or films or television programs.

There are many scientific studies that support California’s views. Social scientists, for example, have found causal evi­dence that playing these games results in harm. Longitudi­nal studies, which measure changes over time, have found that increased exposure to violent video games causes an increase in aggression over the same period. See Möller & Krahé, Exposure to Violent Video Games and Aggression in German Adolescents: A Longitudinal Analysis, 35 Aggres­sive Behavior 75 (2009); Gentile & Gentile, Violent Video Games as Exemplary Teachers: A Conceptual Analysis, 37 J. Youth & Adolescence 127 (2008); Anderson et al., Longitudi­nal Effects of Violent Video Games on Aggression in Japan and the United States, 122 Pediatrics e1067 (2008); Wallen­ius & Punamaki, Digital Game Violence and Direct Aggres­sion in Adolescence: A Longitudinal Study of the Roles of Sex, Age, and Parent-Child Communication, 29 J. Applied Developmental Psychology 286 (2008).

Experimental studies in laboratories have found that sub­jects randomly assigned to play a violent video game subse­quently displayed more characteristics of aggression than those who played nonviolent games. See, e. g., Anderson et al., Violent Video Games: Specific Effects of Violent Con­tent on Aggressive Thoughts and Behavior, 36 Advances in Experimental Soc. Psychology 199 (2004).

Surveys of eighth and ninth grade students have found a correlation between playing violent video games and aggres­sion. See, e. g., Gentile, Lynch, Linder, & Walsh, The Ef­fects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School Performance, 27 J. Adoles­cence 5 (2004).

Cutting-edge neuroscience has shown that “virtual vio­lence in video game playing results in those neural patterns that are considered characteristic for aggressive cognition and behavior.” Weber, Ritterfeld, & Mathiak, Does Playing Violent Video Games Induce Aggression? Empirical Evi­dence of a Functional Magnetic Resonance Imaging Study, 8 Media Psychology 39, 51 (2006).

And “meta-analyses,” i. e., studies of all the studies, have concluded that exposure to violent video games “was posi­tively associated with aggressive behavior, aggressive cogni­tion, and aggressive affect,” and that “playing violent video games is a causal risk factor for long-term harmful out­comes.” Anderson et al., Violent Video Game Effects on Aggression, Empathy, and Prosocial Behavior in Eastern and Western Countries: A Meta-Analytic Review, 136 Psy­chological Bull. 151, 167, 169 (2010) (emphasis added).

Some of these studies take care to explain in a common­sense way why video games are potentially more harmful than, say, films or books or television. In essence, they say that the closer a child’s behavior comes, not to watching, but to acting out horrific violence, the greater the potential psy­chological harm. See Bushman & Huesmann, Aggression, in 2 Handbook of Social Psychology 833, 851 (S. Fiske, D. Gilbert, & G. Lindzey eds., 5th ed. 2010) (video games stimulate more aggression because “[p]eople learn better when they are actively involved,” players are “more likely to identify with violent characters,” and “violent games directly reward violent behavior”); Polman, de Castro, & van Aken, Experimental Study of the Differential Effects of Playing Versus Watching Violent Video Games on Children’s Aggres­sive Behavior, 34 Aggressive Behavior 256 (2008) (finding greater aggression resulting from playing, as opposed to watching, a violent game); C. Anderson, D. Gentile, & K. Buckley, Violent Video Game Effects on Children and Ado­lescents 136-137 (2007) (three studies finding greater ef­fects from games as opposed to television). See also infra this page and 854-855 (statements of expert public health associations agreeing that interactive games can be more harmful than “passive” media like television); ante, at 816-­821 (Alito, J., concurring in judgment).

Experts debate the conclusions of all these studies. Like many, perhaps most, studies of human behavior, each study has its critics, and some of those critics have produced stud­ies of their own in which they reach different conclusions. (I list both sets of research in the appendixes.) I, like most judges, lack the social science expertise to say definitively who is right. But associations of public health professionals who do possess that expertise have reviewed many of these studies and found a significant risk that violent video games, when compared with more passive media, are particularly likely to cause children harm.

Eleven years ago, for example, the American Academy of Pediatrics, the American Academy of Child & Adolescent Psychiatry, the American Psychological Association, the American Medical Association, the American Academy of Family Physicians, and the American Psychiatric Association released a joint statement, which said:

“[O]ver 1000 studies . . . point overwhelmingly to a causal connection between media violence and aggres­sive behavior in some children . . . [and, though less re­search had been done at that time, preliminary studies indicated that] the impact of violent interactive enter­tainment (video games and other interactive media) on young people ... may be significantly more severe than that wrought by television, movies, or music.” Joint Statement on the Impact of Entertainment Violence on Children (2000) (emphasis added), online at http:// www.aap.org/advocacy/releases/jstmtevc.htm.

Five years later, after more research had been done, the American Psychological Association adopted a resolution that said:

“[Comprehensive analysis of violent interactive video game research suggests such exposure ... increases ag­gressive behavior,... increases aggressive thoughts,... increases angry feelings,... decreases helpful behavior, and ... increases physiological arousal.” Resolution on Violence in Video Games and Interactive Media (2005), online at http://www.apa.org/about/governance/council/ policy/interaetive-media.pdf.

The association added:

“[T]he practice, repetition, and rewards for acts of vio­lence may be more conducive to increasing aggressive behavior among children and youth than passively watching violence on TV and in films.” Ibid, (empha­sis added).

Four years after that, in 2009, the American Academy of Pediatrics issued a statement in significant part about inter­active media. It said:

“Studies of these rapidly growing and ever-more-­sophisticated types of media have indicated that the ef­fects of child-initiated virtual violence may be even more profound than those of passive media such as television. In many games, the child or teenager is ‘embedded’ in the game and uses a ‘joystick’ (handheld controller) that enhances both the experience and the aggressive feel­ings.” Policy Statement — Media Violence, 124 Pediat­rics 1495, 1498 (2009) (emphasis added).

It added:

“Correlational and experimental studies have revealed that violent video games lead to increases in aggressive behavior and aggressive thinking and decreases in pro-­social behavior. Recent longitudinal studies . . . have revealed that in as little as 3 months, high exposure to violent video games increased physical aggression. Other recent longitudinal studies ... have revealed simi­lar effects across 2 years.” Ibid, (footnotes omitted).

Unlike the majority, I would find sufficient grounds in these studies and expert opinions for this Court to defer to an elected legislature’s conclusion that the video games in question are particularly likely to harm children. This Court has always thought it owed an elected legislature some degree of deference in respect to legislative facts of this kind, particularly when they involve technical matters that are beyond our competence, and even in First Amend­ment cases. See Holder, 561 U. S., at 33-34 (deferring, while applying strict scrutiny, to the Government’s national security judgments); Turner Broadcasting System, Inc. v. FCC, 520 U. S. 180, 195-196 (1997) (deferring, while apply­ing intermediate scrutiny, to the Government’s technological judgments). The majority, in reaching its own, opposite conclusion about the validity of the relevant studies, grants the legislature no deference at all. Compare ante, at 800 (stating that the studies do not provide evidence that violent video games “cause” harm (emphasis deleted)), with supra, at 851 (citing longitudinal studies finding causation).

C

I can find no “less restrictive” alternative to California’s law that would be “at least as effective.” See Reno, 521 U. S., at 874. The majority points to a voluntary alterna­tive: The industry tries to prevent those under 17 from buy­ing extremely violent games by labeling those games with an “M” (Mature) and encouraging retailers to restrict then-­sales to those 17 and older. See ante, at 803. But this vol­untary system has serious enforcement gaps. When Cali­fornia enacted its law, a Federal Trade Commission (FTC) study had found that nearly 70% of unaccompanied 13- to 16-year-olds were able to buy M-rated video games. FTC, Marketing Violent Entertainment to Children 27 (2004), on­line at http://www.ftc.gov/os/2004/07/040708kidsviolencerpt. pdf. Subsequently the voluntary program has become more effective. But as of the FTC’s most recent update to Con­gress, 20% of those under 17 are still able to buy M-rated video games, and, breaking down sales by store, one finds that this number rises to nearly 50% in the case of one large national chain. FTC, Marketing Violent Entertainment to Children 28 (2009), online at http://www.ftc.gov/os/2009/12/ P994511violententertainment.pdf. And the industry could easily revert back to the substantial noncompliance that ex­isted in 2004, particularly after today’s broad ruling reduces the industry’s incentive to police itself.

The industry also argues for an alternative technological solution, namely, “ [filtering at the console level.” Brief for Respondents 53. But it takes only a quick search of the In­ternet to find guides explaining how to circumvent any such technological controls. YouTube viewers, for example, have watched one of those guides (called “How to bypass parental controls on the Xbox 860”) more than 47,000 times. See http://www.youtube.com/watch?v=CFlVfVmvN6k.

I­V

The upshot is that California’s statute, as applied to its heartland of applications (i. e., buyers under 17; extremely violent, realistic video games), imposes a restriction on speech that is modest at most. That restriction is justified by a compelling interest (supplementing parents’ efforts to prevent their children from purchasing potentially harmful violent, interactive material). And there is no equally effec­tive, less restrictive alternative. California’s statute is con­sequently constitutional on its face — though litigants remain free to challenge the statute as applied in particular in­stances, including any effort by the State to apply it to mi­nors aged 17.

I add that the majority’s different conclusion creates a se­rious anomaly in First Amendment law. Ginsberg makes clear that a State can prohibit the sale to minors of depic­tions of nudity; today the Court makes clear that a State cannot prohibit the sale to minors of the most violent inter­active video games. But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the govern­ment to protect children by restricting sales of that ex­tremely violent video game only when the woman — bound, gagged, tortured, and killed — is also topless?

This anomaly is not compelled by the First Amendment. It disappears once one recognizes that extreme violence, where interactive, and without literary, artistic, or similar justification, can prove at least as, if not more, harmful to children as photographs of nudity. And the record here is more than adequate to support such a view. That is why I believe that Ginsberg controls the outcome here a fortiori. And it is why I believe California’s law is constitutional on its face.

This case is ultimately less about censorship than it is about education. Our Constitution cannot succeed in secur­ing the liberties it seeks to protect unless we can raise future generations committed cooperatively to making our system of government work. Education, however, is about choices. Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children — by their parents, by their teachers, and by the people acting democratically through their governments. In my view, the First Amendment does not disable government from helping parents make such a choice here — a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.

For these reasons, I respectfully dissent.

APPENDIXES

With the assistance of the Supreme Court Library, I have compiled these two appendixes listing peer-reviewed aca­demic journal articles on the topic of psychological harm resulting from playing violent video games. The library conducted a search for relevant articles on the following databases: PsycINFO, PubMed, Academic Search Premier, ArticleFirst (OCLC), and Dialog (files 1, 7, 34, 98, 121, 142, 144, 149). The following search terms were used: “(video* or computer or arcade or online) and (game*) and (attack* or fight* or aggress* or violen* or hostil* or ang* or arous* or prosocial or help* or desens* or empathy).” After elimi­nating irrelevant matches based on title or abstract, I categorized these articles as either supporting the hypothe­sis that violent video games are harmful (listed in Appendix A), or not supporting/rejecting the hypothesis that violent video games are harmful (listed in Appendix B).

Many, but not all, of these articles were available to the California Legislature or the parties in briefing this case. I list them because they suggest that there is substantial (though controverted) evidence supporting the expert associ­ations of public health professionals that have concluded that violent video games can cause children psychological harm. See supra, at 853-855. And consequently, these studies help to substantiate the validity of the original judgment of the California Legislature, as well as that judgment’s contin­uing validity.

A

Anderson & Bushman, Effects of Violent Video Games on Aggressive Behavior, Aggressive Cognition, Aggressive Affeet, Physiological Arousal, and Prosocial Behavior: A Meta-Analytic Review of the Scientific Literature, 12 Psy­chological Science: J. Am. Psychological Society 353 (2001).

Anderson & Dill, Video Games and Aggressive Thoughts, Feelings, and Behavior in the Laboratory and in Life, 78 J. Personality & Soc. Psychology 772 (2000).

Anderson et al., Violent Video Games: Specific Effects of Vio­lent Content on Aggressive Thoughts and Behavior, 36 Ad­vances in Experimental Soc. Psychology 199 (2004).

Anderson & Ford, Affect of the Game Player: Short-Term Effects of Highly and Mildly Aggressive Video Games, 12 Personality & Soc. Psychology Bull. 390 (1986).

Anderson & Morrow, Competitive Aggression Without In­teraction: Effects of Competitive Versus Cooperative In­structions on Aggressive Behavior in Video Games, 21 Personality & Soc. Psychology Bull. 1020 (1995).

Anderson et al., Longitudinal Effects of Violent Video Games on Aggression in Japan and the United States, 122 Pediat­rics el067 (2008).

Anderson et al., Violent Video Game Effects on Aggression, Empathy, and Prosocial Behavior in Eastern and Western Countries: A Meta-Analytic Review, 136 Psychological Bull. 151 (2010).

Anderson, An Update on the Effects of Playing Violent Video Games, 27 J. Adolescence 113 (2004).

Anderson et al., The Influence of Media Violence on Youth, 4 Psychological Science in the Public Interest 81 (2003).

Anderson & Carnagey, Causal Effects of Violent Sports Video Games on Aggression: Is It Competitiveness or Vio­lent Content? 45 J. Experimental Soc. Psychology 731 (2009).

Anderson & Murphy, Violent Video Games and Aggressive Behavior in Young Women, 29 Aggressive Behavior 423 (2003).

Arriaga, Esteves, Carneiro, & Monteiro, Violent Computer Games and Their Effects on State Hostility and Physiolog­ical Arousal, 32 Aggressive Behavior 146 (2006).

Arriaga, Esteves, Carneiro, & Monteiro, Are the Effects of Unreal Violent Video Games Pronounced When Playing With a Virtual Reality System? 34 Aggressive Behavior 521 (2008).

Baldaro et al., Aggressive and Non-Violent Videogames: Short-Term Psychological and Cardiovascular Effects on Habitual Players, 20 Stress & Health: J. Int'l Society for Investigation of Stress 203 (2004).

Ballard, Hamby, Panee,. & Nivens, Repeated Exposure to Video Came Play Results in Decreased Blood Pressure Re­sponding, 8 Media Psychology 323 (2006).

Ballard & Lineberger, Video Game Violence and Confederate Gender: Effects on Reward and Punishment Given by Col­lege Males, 41 Sex Roles 541 (1999).

Ballard &, Wiest, Mortal Kombat (tm): The Effects of Violent Videogame Play on Males’ Hostility and Cardiovascular Responding, 26 J. Applied Soc. Psychology 717 (1996).

Barlett, Branch, Rodeheffer, & Harris, How Long Do the Short-Term Violent Video Game Effects Last? 35 Aggres­sive Behavior 225 (2009).

Barlett, Rodeheffer, Baldassaro, Hinkin, & Harris, The Ef­fect of Advances in Video Game Technology and Content on Aggressive Cognitions, Hostility, and Heart Rate, 11 Media Psychology 540 (2008).

Barlett, Harris, & Baldassaro, Longer You Play, the More Hostile You Feel: Examination of First Person Shooter Video Games and Aggression During Video Game Play, 33 Aggressive Behavior 486 (2007).

Barlett, Harris, & Bruey, The Effect of the Amount of Blood in a Violent Video Game on Aggression, Hostility, and Arousal, 44 J. Experimental Soc. Psychology 539 (2008).

Barlett & Rodeheffer, Effects of Realism on Extended Vio­lent and Nonviolent Video Game Play on Aggressive Thoughts, Feelings, and Physiological Arousal, 35 Aggres­sive Behavior 213 (2009).

Barlett, Anderson, & Swing, Video Game Effects — Con­firmed, Suspected, and Speculative: A Review of the Evi­dence, 40 Simulation & Gaming 377 (2009).

Bartholow, Sestir, & Davis, Correlates and Consequences of Exposure to Video Game Violence: Hostile Personality, Empathy, and Aggressive Behavior, 31 Personality & Soc. Psychology Bull. 1573 (2005).

Bartholow & Anderson, Effects of Violent Video Games on Aggressive Behavior: Potential Sex Differences, 38 J. Ex­perimental Soc. Psychology 283 (2002).

Bartholow, Bushman, & Sestir, Chronic Violent Video Game Exposure and Desensitization to Violence: Behavioral and Event-Related Brain Potential Data, 42 J. Experimental Soc. Psychology 532 (2006).

Bluemke, Friedrich, & Zumbach, The Influence of Violent and Nonviolent Computer Games on Implicit Measures of Aggressiveness, 36 Aggressive Behavior 1 (2010).

Brady & Matthews, Effects of Media Violence on Health-­Related Outcomes Among Young Men, 160 Archives of Pe­diatrics & Adolescent Med. 341 (2006).

Browne & Hamilton-Giachritsis, The Influence of Violent Media on Children and Adolescents: A Public-Health Ap­proach, 365 Lancet 702 (2005).

Bushman & Anderson, Violent Video Games and Hostile Ex­pectations: A Test of the General Aggression Model, 28 Personality & Soc. Psychology Bull. 1679 (2002).

Bushman & Anderson, Comfortably Numb: Desensitizing Ef­fects of Violent Media on Helping Others, 20 Psychological Science: J. Am. Psychological Society 273 (2009).

Bushman, Rothstein, & Anderson, Much Ado About Some­thing: Violent Video Game Effects and a School of Red Herring: Reply to Ferguson and Kilburn, 136 Psychologi­cal Bull. 182 (2010).

Calvert & Tan, Impact of Virtual Reality on Young Adults’ Physiological Arousal and Aggressive Thoughts: Inter­action Versus Observation, 15 J. Applied Developmental Psychology 125 (1994).

Carnagey, Anderson, & Bartholow, Media Violence and So­cial Neuroscience: New Questions and New Opportuni­ties, 16 Current Directions in Psychological Science 178 (2007).

Carnagey & Anderson, Violent Video Game Exposure and Aggression: A Literature Review, 45 Minerva Psichiatrica 1 (2004).

Carnagey & Anderson, The Effects of Reward and Punish­ment in Violent Video Games on Aggressive Affect, Cogni­tion, and Behavior, 16 Psychological Science: J. Am. Psy­chological Society 882 (2005).

Carnagey, Anderson, & Bushman, The Effect of Video Game Violence on Physiological Desensitization to Real-Life Vio­lence, 43 J. Experimental Soc. Psychology 489 (2007).

Chambers & Ascione, The Effects of Prosocial and Aggres­sive Videogames on Children’s Donating and Helping, 148 J. Genetic Psychology: Research and Theory on Human De­velopment 499 (1987).

Chory & Cicchirillo, The Relationship Between Video Game Play and Trait Verbal Aggressiveness: An Application of the General Aggression Model, 24 Communication Re­search Reports 113 (2007).

Cicchirillo & Chory-Assad, Effects of Affective Orientation and Video Game Play on Aggressive Thoughts and Behav­iors, 49 J. Broadcasting & Electronic Media 435 (2005).

Colwell & Payne, Negative Correlates of Computer Game Play in Adolescents, 91 British J. Psychology 295 (2000).

Cooper & Mackie, Video Games and Aggression in Children, 16 J. Applied Soc. Psychology 726 (1986).

Deselms & Altman, Immediate and Prolonged Effects of Vid­eogame Violence, 33 J. Applied Soc. Psychology 1553 (2003).

Dill & Dill, Video Game Violence: A Review of the Empirical Literature, 3 Aggression & Violent Behavior 407 (1998).

Dogan, Video Games and Children: Violence in Video Games, 44 Yeni Symposium 161 (2006).

Eastin, Video Game Violence and the Female Game Player: Self- and Opponent Gender Effects on Presence and Ag­gressive Thoughts, 32 Human Communication Research 351 (2006).

Ernes, Is Mr Pac Man Eating Our Children? A Review of the Effect of Video Games on Children, 42 Canadian J. Psychi­atry 409 (1997).

Farrar, Krcmar, & Nowak, Contextual Features of Violent Video Games, Mental Models, and Aggression, 56 J. Com­munication 387 (2006).

Fischer, Kastenmiiller, & Greitemeyer, Media Violence and the Self: The Impact of Personalized Gaming Characters in Aggressive Video Games on Aggressive Behavior, 46 J. Experimental Soc. Psychology 192 (2010).

Funk, Children's Exposure to Violent Video Games and De­sensitization to Violence, 14 Child & Adolescent Psychiat­ric Clinics North Am. 387 (2005).

Funk, Video Games, 16 Adolescent Med. Clinics 395 (2005).

Funk, Baldacci, Pasold, & Baumgardner, Violence Exposure in Real-Life, Video Games, Television, Movies, and the Internet: Is There Desensitization? 27 J. Adolescence 23 (2004).

Funk, Buehman, Jenks, & Beehtoldt, Playing Violent Video Games, Desensitization, and Moral Evaluation in Children, 24 J. Applied Developmental Psychology 413 (2003).

Funk et al., Aggression and Psychopathology in Adolescents With a Preference for Violent Electronic Games, 28 Ag­gressive Behavior 134 (2002).

Funk, Buehman, Jenks, & Beehtoldt, An Evidence-Based Ap­proach to Examining the Impact of Playing Violent Video and Computer Games, SIMILE: Studies in Media & Infor­mation Literacy Educ., vol. 2, no. 4, p. 1 (Nov. 2002).

Gentile & Stone, Violent Video Game Effects on Children and Adolescents: A Review of the Literature, 57 Minerva Pediatrica 337 (2005).

Gentile et al., The Effects of Prosocial Video Games on Pro­social Behaviors: International Evidence From Correla­tional, Longitudinal, and Experimental Studies, 35 Person­ality & Soc. Psychology Bull. 752 (2009).

Gentile, Lynch, Linder, & Walsh, The Effects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School Performance, 27 J. Adolescence 5 (2004).

Gentile & Gentile, Violent Video Games as Exemplary Teach­ers: A Conceptual Analysis, 37 J. Youth & Adolescence 127 (2008).

Giumetti & Markey, Violent Video Games and Anger as Pre­dictors of Aggression, 41 J. Research in Personality 1234 (2007).

Graybill, Kirsch, & Esselman, Effects of Playing Violent Ver­sus Nonviolent Video Games on the Aggressive Ideation of Aggressive and Nonaggressive Children, 15 Child Study J. 199 (1985).

Grigoryan, Stepanyan, Stepanyan, & Agababyan, Influence of Aggressive Computer Games on the Brain Cortex Ac­tivity Level in Adolescents, 33 Human Physiology 34 (2007).

Hastings et al., Young Children's Video/Computer Game Use: Relations With School Performance and Behavior, 30 Is­sues in Mental Health Nursing 638 (2009).

Huesmann, Nailing the Coffin Shut on Doubts That Violent Video Games Stimulate Aggression: Comment on Ander­son et al., 136 Psychological Bull. 179 (2010).

Huesmann, The Impact of Electronic Media Violence: Scien­tific Theory and Research, 41 J. Adolescent Health S6 (2007).

Huesmann & Taylor, The Role of Media Violence in Violent Behavior, 27 Annual Rev. Public Health 393 (2006).

Hummer et al., Short-Term Violent Video Game Play by Ad­olescents Alters Prefrontal Activity During Cognitive In­hibition, 13 Media Psychology 136 (2010).

Irwin & Gross, Cognitive Tempo, Violent Video Games, and Aggressive Behavior in Young Boys, 10 J. Family Violence 337 (1995).

Kirsh & Mounts, Violent Video Game Play Impacts Facial Emotion Recognition, 33 Aggressive Behavior 353 (2007).

Kirsh, Mounts, & Olczak, Violent Media Consumption and the Recognition of Dynamic Facial Expressions, 21 J. In­terpersonal Violence 571 (2006).

Kirsh, Olczak, & Mounts, Violent Video Games Induce an Af­fect Processing Bias, 7 Media Psychology 239 (2005).

Kirsh, The Effects of Violent Video Games on Adolescents: The Overlooked Influence of Development, 8 Aggression & Violent Behavior 377 (2003).

Kirsh, Seeing the World Through Mortal Kombat-Colored Glasses: Violent Video Games and the Development of a Short-term Hostile Attribution Bias, 5 Childhood 177 (1998).

Konijn, Bijvank, & Bushman, I Wish I Were a Warrior: The Role of Wishful Identification in the Effects of Violent Video Games on Aggression in Adolescent Boys, 43 Devel­opmental Psychology 1038 (2007).

Krahe & Moller, Playing Violent Electronic Games, Hostile Attributional Style, and Aggression-Related Norms in German Adolescents, 27 J. Adolescence 53 (2004).

Krcmar, Farrar, & McGloin, The Effects of Video Game Real­ism on Attention, Retention and Aggressive Outcomes, 27 Computers in Human Behavior 432 (2011).

Krcmar & Lachlan, Aggressive Outcomes and Videogame Play: The Role of Length of Play and the Mechanisms at Work, 12 Media Psychology 249 (2009).

Krcmar & Farrar, Retaliatory Aggression and the Effects of Point of View and Blood in Violent Video Games, 12 Mass Communication & Society 115 (2009).

Kronenberger et al., Media Violence Exposure in Aggressive and Control Adolescents: Differences in Self- and Parent-­Reported Exposure to Violence on Television and in Video Games, 31 Aggressive Behavior 201 (2005).

Krononborgcr ct al., Media Violence Exposure and Executive Functioning in Aggressive and Control Adolescents, 61 J. Clinical Psychology 725 (2005).

Kuntsche, Hostility Among Adolescents in Switzerland? Mul­tivariate Relations Between Excessive Media Use and Forms of Violence, 34 J. Adolescent Health 230 (2004).

Lee, Peng, & Klein, Will the Experience of Playing a Violent Role in a Video Game Influence People’s Judgments of Violent Crimes? 26 Computers in Human Behavior 1019 (2010).

Lemmens & Bushman, The Appeal of Violent Video Games to Lower Educated Aggressive Adolescent Boys From Two Countries, 9 CyberPsyehology & Behavior 638 (2006).

Mathiak & Weber, Toward Brain Correlates of Natural Be­havior: fMRI During Violent Video Games, 27 Human Brain Mapping 948 (2006).

Moller & Krahé, Exposure to Violent Video Games and Ag­gression in German Adolescents: A Longitudinal Analysis, 35 Aggressive Behavior 75 (2009).

Nowak, Krcmar, & Farrar, The Causes and Consequences of Presence: Considering the Influence of Violent Video Games on Presence and Aggression, 17 Presence: Teleop-­erators & Virtual Environments 256 (2008).

Olson et al., M-Rated Video Games and Aggressive or Prob­lem Behavior Among Young Adolescents, 13 Applied De­velopmental Science 188 (2009).

Panee & Ballard, High Versus Low Aggressive Priming During Video-Game Training: Effects on Violent Action During Game Play, Hostility, Heart Rate, and Blood Pres­sure, 32 J. Applied Soc. Psychology 2458 (2002).

Persky & Blascovich, Immersive Virtual Environments Ver­sus Traditional Platforms: Effects of Violent and Nonvio­lent Video Game Play, 10 Media Psychology 135 (2007).

Persky & Blascovich, Immersive Virtual Video Game Play and Presence: Influences on Aggressive Feelings and Be­havior, 17 Presence: Teleoperators & Virtual Environ­ments 57 (2008).

Polman, de Castro, & van Aken, Experimental Study of the Differential Effects of Playing Versus Watching Violent Video Games on Children’s Aggressive Behavior, 34 Ag­gressive Behavior 256 (2008).

Potera, Sex and Violence in the Media Influence Teen Behav­ior: Three Studies Show a Correlation, 109 American J. Nursing 20 (2009).

Richmond & Wilson, Are Graphic Media Violence, Aggres­sion, and Moral Disengagement Related? 15 Psychiatry, Psychology & Law 350 (2008).

Schaefer & Harrison, The Effects of Violent Fantasy on Chil­dren’s Aggressive Behavior, 41 Psychology & Educ. 35 (2004).

Schmierbach, “Killing Spree”: Exploring the Connection Be­tween Competitive Game Play and Aggressive Cognition, 37 Communication Research 256 (2010).

Sheese & Graziano, Deciding To Defect: The Effects of Video-Game Violence on Cooperative Behavior, 16 Psycho­logical Science: J. Am. Psychological Society 354 (2005).

Sherry, The Effects of Violent Video Games on Aggression. A Meta-Analysis, 27 Human Communication Research 409 (2001).

Shibuya, Sakamoto, Ihori, & Yukawa, The Effects of the Presence and Contexts of Video Game Violence on Chil­dren: A Longitudinal Study in Japan, 39 Simulation & Gaming 528 (2008).

Sigurdsson, Gudjonsson, Bragason, Kristjansdottir, & Sig-­fusdottir, The Role of Violent Cognition in the Relation­ship Between Personality and the Involvement in Violent Films and Computer Games, 41 Personality & Individual Differences 381 (2006).

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Slater, Henry, Swaim, & Anderson, Violent Media Content and Aggressiveness in Adolescents: A Downward Spiral Model, 30 Communication Research 713 (2003).

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B

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Ferguson, Research on the Effects of Violent Video Games: A Critical Analysis, 3 Soc. & Personality Psychology Com­pass 351 (2009).

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Griffiths, Video Games and Aggression, 10 The Psychologist 397 (1997).

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Unsworth & Ward, Video Games and Aggressive Behaviour, 36 Australian Psychologist 184 (2001).

Williams & Skoric, Internet Fantasy Violence: A Test of Aggression in an Online Game, 72 Communication Mono­graphs 217 (2005).

Winkel, Novak, & Hopson, Personality Factors, Subject Gen­der, and the Effects of Aggressive Video Games on Ag­gression in Adolescents, 21 J. Research in Personality 211 (1987).