SPECIAL EDITION:
Schwarzenegger v. EMA/ESA
In April 2010, the Supreme Court of the United States decided to hear oral arguments on Schwarzenegger v. Entertainment Merchants Association (EMA)/Entertainment Software Association (ESA). The case centers around a 2005 California statute that would regulate the distribution of computer and video games. This law would treat games, which are First Amendment protected works, differently than movies, books, and music. Numerous district and federal courts agree that games are expressive works of art and are entitled to the same First Amendment protections.
California filed its brief with the high court in July, arguing that the rulings of the lower courts should be overturned and that the law should be allowed to stand. As you will read below, the ESA recently filed a respondents' brief with the Court declaring California's law to be unconstitutional, and more than 180 experts and organizations have signed amicus briefs in support of our position. The two sides will meet in court for oral arguments on November 2, 2010, with the Supreme Court's final decision to be made in the months following.
To learn more about this important fight for free expression, please visit http://theesa.com/policy/scotus.asp. |
ESA ASKS U.S. SUPREME COURT TO PROTECT FIRST AMENDMENT RIGHTS OF COMPUTER AND VIDEO GAMES
On September 10, the ESA filed a brief with the U.S. Supreme Court in the case of Schwarzenegger v. EMA/ESA, asking the high court to uphold the Ninth Circuit Court of Appeals' ruling that a 2005 California law denying First Amendment protections to computer and video games is unconstitutional.
ESA's brief argued that the California statute, which would restrict the sale and rental of video games that California decides are "offensively violent," is plainly unlawful under a long line of Supreme Court precedents. The association noted that the California measure does not meet the exacting "strict scrutiny" standards required by the Constitution, which require both that the state have a compelling public interest that is served by the proposed law and that the proposed law in question is the least restrictive means of achieving the intended goal. Implicitly acknowledging that this law does not pass strict scrutiny, California argues for a new category of unprotected free speech based on violent content. Never before have courts used expressions of violence as the basis for a carved out restriction on Americans' constitutional rights to free speech.
ESA's brief also underscored that lower courts, including the Ninth Circuit, have repeatedly ruled that there is no credible evidence that computer and video games cause harm to minors, which is the stated reason behind California's law. Research presented by the state as alleged evidence to support this claim has been routinely rejected as flawed by every court that has reviewed it. In fact, as the brief pointed out, FBI statistics show that juvenile violent crime rates have decreased even though video game usage has increased during the last 15 years.
The brief also stated that video games are a popular form of modern artistic expression involving classic themes, storylines and player involvement, affording them the same First Amendment protections as other media, such as books and movies. California's arguments are a dangerous attempt to weaken these established First Amendment protections, and open the door to censorship of other media. ESA warned that the state's argument against violence "has no stopping point because so many expressive works contain depictions of violence… that could be deemed offensive to minors."
ESA further asserted that there are less restrictive means of ensuring that the computer and video games children have access to are parent-approved. The industry's independent Entertainment Software Rating Board (ESRB) rating system, called the "gold standard" of rating systems by the Federal Trade Commission, and parental controls, which give parents the ability to block games that they do not want their children to play, are two such tools that render California's law unnecessary. ESA declared that California's law usurps parental authority, and that the ESRB rating system, provides parents with the comprehensive tools they need to assess what games are suitable for their children.
DIVERSE REPRESENTATION OF EXPERTS AND ORGANIZATIONS FILE AMICUS BRIEFS IN SUPPORT OF ESA
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One week after the ESA filed its brief in the case of Schwarzenegger v. EMA/ESA, 182 individuals and organizations signed on to amicus curiae briefs filed with the Supreme Court, urging the Court to strike down California's 2005 statute. The signatories represent a wide range of leading First Amendment experts, national organizations, non-profits, associations, researchers and social scientists whose briefs echoed and augmented the main points outlined in the ESA's filing.
Among the signatories were 82 leading and well-respected social scientists, researchers and medical professionals who challenged California's reliance on questionable research and incomplete data to support its argument that playing violent video games causes harm to minors. Their brief argued that the state presented the Court with studies that "suffer from inherent and fundamental methodological flaws" while ignoring a significant "body of scholarship, undertaken with established and reliable scientific methodologies, debunking the claim that the video games California seeks to regulate have harmful effects on minors." According to these experts, "The problem confronting California and Senator Yee thus is not the constitutional standard; it is simply their inability to meet that standard in this case because validated scientific studies prove the opposite, leaving no empirical foundation for the assertion that playing violent video games causes harm to minors."
Other signatories underscored the severe affect California's statute could have on news reporting. The Reporters Committee for Freedom of the Press, joined by six other organizations representing journalistic interests, asserted that, "If violence is deemed to be an unprotected category of speech as it applies to minors, there will be little standing in the way of the same critics making the argument that newspapers should not be sold to minors because they contain violent content…. Even worse, it would become much easier to make the argument that violent content in newspapers should be censored."
The attorneys general of Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah and Washington submitted a brief arguing that California's law would set an unnecessary and burdensome precedent for law enforcement officials across the country. The brief asserted, "This unnecessary incursion into issues of speech perversely would deplete resources and distract from law enforcement's task of policing actual violence." In addition, the attorneys general argued the law "would furthermore legitimize criminal defendants' attempts to evade responsibility for breaking the law by invoking the ‘video game made me do it' defense."
The U.S. Chamber of Commerce also filed an amicus brief praising the industry's independent and voluntary rating system, the ESRB, and asserted that the California statute fails the "strict scrutiny" standard under the Constitution. "California's law fails strict scrutiny because a ban on the sale or rental of violent video games to minors is not the least restrictive alternative to protecting them from age-inappropriate media content. Industry self-regulation is a highly effective and less restrictive alternative."
The Motion Picture Association of America, joined by nine other organizations representing the movie industry, warned of the negative effects California's statute would have on creative expression. "[S]tate and local governments could attempt to impose similar restrictions on depictions of violence in other media, including motion pictures. Such restrictions would have an obvious chilling effect, particularly given the inherent amorphousness of restrictions of that type and the potential for a patchwork of nationwide regulation." A variety of other organizations representing entertainment media, including the National Association of Broadcasters, Future of Music Coalition, American Booksellers Foundation for Free Expression and the Comic Book Legal Defense Fund, echoed these concerns.
Other organizations filing in support of the ESA included the American Civil Liberties Union, the Cato Institute and the National Cable and Telecommunications Association. To view the summaries or full text of the amicus briefs, please visit http://theesa.com/policy/scotus.asp.
VIDEO GAME VOTERS NETWORK ENLISTS STAN LEE, MOBILIZES MEMBERS TO DEFEND FREE SPEECH
The Video Game Voters Network (VGVN), a grassroots organization of more than 250,000 voting-age gamers, ismobilizing electronic game enthusiasts and free speech advocates across the country as the Supreme Court prepares to consider the case of Schwarzenegger v. EMA/ ESA this fall.
Joining the VGVN in this important fight, comic book legend and MarvelComics pioneer Stan Lee spoke out in defense of the First Amendment and video game artists. Drawing on his experience with attempted censorship ofcomic books in the 1950s, Lee wrote an open letter in defense of video games on September 14 calling on the Supreme Court to overturn California's law, as lower courts have, and urging video game enthusiasts to join VGVN and make their voices heard on this important case. In the week following the letter's release, over 1,200 Tweets were made by VGVN members and entertainment media rights advocates to an audience of over 4.5 million Twitter followers.
The VGVN also launched a competition for members to create a new look for free speech digital advocacy and awarded two designers with $1,000 in prizes. Over 100 submissions were received for the new digital badge and lapel pin designs. On September 27, the VGVN announced Joseph Mekonen from Tempe, Ariz. won first prize, a $750 Best Buy gift certificate, and Borisz Bacsovics from Chicago, Ill. won second prize, a $250 Best Buy gift certificate. The winning designs can be viewed at http://www.videogamevoters.org/badge-contest/lp.
In addition, VGVN recently launched a Supreme Court Action Center to educate members on the history of the case, provide news updates and encourage others to join the VGVN as oral arguments before the Court draw closer.
VGVN has been mobilizing game enthusiasts around the country since 2006 and is more active than ever as it faces its most important fight in the battle to protect the First Amendment rights of computer and video games.
Supporters can log on to www.videogamevoters.org to become a member. You can also connect with VGVN on Twitter and Facebook. |
