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Video Game Regulation and the Supreme Court: Schwarzenegger v. Entertainment Merchants Association
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Video Game Regulation and the Supreme Court: Schwarzenegger v. Entertainment Merchants Association

November 1, 2010 Article Start Previous Page 2 of 3 Next

In some cases, the reasons for granting cert. are mysterious. The order granting cert. is usually only a sentence or two long. The reasons may be stated in the Court's opinion, but often the reasons are only inferred much later by Supreme Court scholars after a decision is made. The Court reviews everything associated with the decision, and argues about the reasons for granting cert. in context with some historical perspective.

In this case, there is no state split on this issue. The states have been unsuccessfully trying to regulate content in games for years. To date, there have been 12 cases in eight years trying to impose some type of state-level regulation on video games. The ESA has challenged all of these cases through a process similar to the California case, and won every time.

In fact, in a recent victory in Illinois, the ESA also won an award of $510,000 in attorneys' fees as well as the victory squashing the legislation. The ESA also received a $282,794 reimbursement of attorneys' fees in California for this case.

Overall, the ESA has received more than $2M in attorneys' fees from a number of regulation cases. The attorneys' fees award is significant because it is unusual in the U.S., where each party usually pays its own fees.

The precedent cases are unanimous, and there is no reason to expect a different result in future cases. So, removing the "state split" idea for granting cert., legal scholars are left guessing why the Supreme Court took the case. We may not ever know for certain, but we will have a better idea after the Court decides this case.

Why do the states keep losing? The reason is tied to First Amendment protection of free speech. The government cannot usually regulate speech, but there are some narrow exceptions.

A person cannot yell "fire" in a crowded theater. Obscenity, such as child pornography, is not considered speech and therefore is not protected. Still, these are exceptions to the general rule are very narrow.

To date, courts have looked at this type of state legislation as regulation of free speech. Specifically, the courts viewed it as a type of regulation referred to as a "content-based regulation." The statutes are evaluating the content of the speech, game violence, and making a prohibition based on that content.

This type of regulation is possible under the First Amendment, but very difficult. It is so difficult because the standard of judicial review or "test" that a content-based regulation has to pass in order to be deemed Constitutional is enormously burdensome.

Before the court chooses which test to apply, both parties argue about what test is appropriate. This article will limit the discussion to the test normally applied in content-based regulation cases: the "strict scrutiny" test. The rationale behind the test is that the Constitution prevents the government from regulating the content of speech except under the narrowest of circumstances.

To pass the test, a statute must: (1) "serve a compelling governmental interest," and (2) be "narrowly tailored" to satisfy that interest. Narrowly tailored means there must be no less restrictive way to accomplish the goal. The compelling governmental interest prong of the argument means that there has to be a proven and powerful governmental interest at stake.

The state statutes have been failing this test for two main reasons. First, the compelling governmental interest prong is difficult because there is no solid data to support the claim that exposure to violent games harms adults or children. Certainly, some studies have indicated that harmful effects may be possible. However, those studies appear to be preliminary at best, and most are widely criticized by serious academia for a number of reasons, including flawed methodology or obvious political agenda.

Second, the ESRB is already in place with a robust rating system for games. To pass the "narrowly tailored" prong of the test, a party has to show that there is no less restrictive means to achieve the state goal.

While the ESRB may not be perfect enforcement, the self-regulatory effort is a serious one. Those opposing the statutes argue that the ESRB rating system, or some other mechanism, is always possible as a less restrictive means to accomplish the statute's stated goals. In short, the statutes have not been "narrowly tailored" enough in the past and have failed this prong of strict scrutiny.

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