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ESA, EMA File Brief in Supreme Court Violent Games Case
by Kyle Orland [PC, Console/PC]
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September 10, 2010
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The Entertainment Software Association and the Entertainment Merchants Association have filed a legal brief outlining their case as respondents in the upcoming U.S. Supreme Court showdown over California's violent video game law.
The 78-page brief [PDF, via MediaCoalition], lays out a multi-tiered argument that California's proposed restrictions on sales of violent video games to minors violates the First Amendment's free speech protections while also being unconstitutionally vague, not minimally restrictive, and not representative of a compelling state interest.
"The California statute at bar is the latest in a long history of overreactions to new expressive media," the brief says. "In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different."
Calling California's proposal "dangerous," the ESA and EMA argue that California has failed to show video games cause the "violent, aggressive, and antisocial behavior ... [and] psychological or neurological harm" asserted by the state.
"The social science research California cites has been discredited by every court to have considered it," the brief argues. "California's studies do not show that video games are the cause of any harm or that they are any different from any other media."
The brief goes on to argue there's no evidence that parents need governmental assistance in protecting their children from violent video game content. "The record evidence shows that parents are present during 83 percent of game purchases by minors ... and a more recent [FTC] survey puts that figure at 92 percent," the brief states.
"Parents certainly have the right to determine what expression they want their minor children to experience," it continues. "But that parental prerogative does not give the government the right to decide what is worthy for minors to view."
In a press release issued alongside the filing, ESA president and CEO Michael Gallagher commented: "The California statute is unnecessary, unwarranted, and unconstitutional. Our industry is already partnering with parents and fulfilling its responsibility by supporting the leading work of the Entertainment Software Rating Board, the most robust entertainment rating system available."
He added of the potential statute: "It would threaten freedom of expression not just for video games, but for all art forms. It would also tie up our courts in endless debates about what constitutes acceptable creative expression in our media. It protects no one and assaults the constitutional rights of artists and storytellers everywhere."
Today's industry arguments comes in the wake of briefs filed in support of the law by California and eleven other states, as well as various advocacy groups.
First signed into California law by Governor Schwarzenegger in 2004, Assembly Bill 1793 was subject to an immediate injunction on First Amendment grounds before it could be implemented. The U.S. Circuit Court for the Ninth District later upheld this injunction, leading to an appeal that the U.S. Supreme Court announced it would consider back in April.
Eight other states and two U.S. cities have tried to pass similar restrictions of the sale of violent video games, all of which have been struck down by state or federal courts on First Amendment grounds. The Supreme Court could set a precedent against similar laws passed in the future or overturn the lower court rulings, granting such laws constitutional protection.
Supreme Court arguments in the case are scheduled for the morning of November 2nd.
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So the stakes are very high in both directions! That said, based on the arguments and the lower court opinions I've read, such a sweeping overturning of established decisions seems highly unlikely to me. I may be overly optimistic, but I'd put better than even odds on the court affirming the lower court's decision and establishing beyond a doubt full First Amendment protections to video games across the country.
There is a third option too: The court could simply accept the lower court ruling without affirming it, I believe, effectively leaving the issue in the same unsettled, state-by-state situation it was in previously. This also seems unlikely, though, as if they wanted to do that they probably would not have agreed to hear arguments in the case.
http://gamecareerguide.com/features/887/towards_an_interactive_goebbels_.php
Freedom of speech is essential, but so is responsibility for actions and their consequences.
I'm getting most of my information from Daniel Floyd's "Extra Credit":
http://www.escapistmagazine.com/videos/view/extra-credits/1961-Free-S peech
I suggest you watch it. It's not very long and Daniel Floyd is a great speaker: he covers some really interesting and important topics and makes it comprehensible for most people.
However, the PRECEDENT is absolutely terrifying. If every lawyer and politician hoping to score points off of damning the game industry suddenly has this to point to, it's a problem. A big problem. Not so much the anti-violence side but, as James said, the way it singles out games.
So, I'm forced to pull for the Supreme Court overturning the law. And that's a shame.
As long as the Supreme Court isn't capricious in its decisions, and actually considers all sides fairly, I don't see a huge problem with having _someone_ be the final word on the matter for a while.
I see what you're saying, and perhaps if games were treated in that way then it would allay some of the misconceptions about them.
But, after reading the pro-game brief linked above, what becomes clear is that California's proposed act is alarmingly vague. It would prohibit the sale of "violent video games" to minors, and its definition of "violent" games is a game "in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being".
Now, okay, games like Manhunt and Postal are covered by that, which seems fairly straightforward. But what does "maiming" count as? Does that include fist-fights in brawlers like Tekkan, which are really no worse than cartoons like Pokemon or Power Rangers? Technically, you're harming the enemy, so that could be maiming. Does that include the fights in Super Smash Bros? And what counts as "an image of a human being" in a medium which is traditionally fantastic and set in imaginative worlds? Is a zombie a human being?
The point is, this law is so vague that you just don't know where it'll stop, and what it counts as violence. If this law were passed, it could mean that any game which contains any violence at all (even cartoon violence) would be prohibited to minors, which would be a real shame.