Video Game Industry Asks U.S. Supreme Court to Maintain First Amendment Protections

Sep 10, 2010, 12:16 ET from Entertainment Software Association

ESA Files Brief Urging Court to Uphold Lower Court Rulings

WASHINGTON, Sept. 10 /PRNewswire-USNewswire/ -- A brief asking the United States Supreme Court to find unconstitutional a 2005 California law restricting the sale and rental of computer and video games to minors was filed today by the Entertainment Software Association (ESA). The ESA, the trade association representing computer and video game publishers, said in its brief that the 2005 California statute, which would deny First Amendment protections to video games that California decides are "offensively violent," was plainly unlawful under a long line of Supreme Court precedents. The case before the high court is Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association. Oral arguments will occur on November 2, 2010.

"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," said Michael D. Gallagher, president and CEO of the ESA. "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."

Arguing that the state does not have a compelling government interest in the case, the ESA underscored that lower courts 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. In overturning the statute, the United States Court of Appeals for the Ninth Circuit declared that the state "has not produced substantial evidence…that violent video games cause psychological or neurological harm to minors," and further noted that there were "glaring empirical gaps" in the research on which California relied.

"Because the California law would impose a content-based restriction on free speech, it is subject to the exacting 'strict scrutiny' standard under the Constitution," said Kenneth L. Doroshow, general counsel of the ESA. "The government must show that the law serves a compelling state interest, that the law is necessary to serve that interest, and that the law is the least restrictive means of achieving it. The California law fails every aspect of this test, as the lower courts found."  

The ESA argued that there are less restrictive means of ensuring that the computer and video games children enjoy are parent-approved. The voluntary Entertainment Software Rating Board rating system, which has been lauded by the Federal Trade Commission as the "gold standard" of entertainment ratings systems; and parental controls, which give parents the ability to block games they do not want their children to play, have been cited as two reasons why the California law does not pass constitutional muster.

The ESA's brief also argues that the California statute's language is unconstitutionally vague and "threatens to chill a far broader array of speech than even California purports to target." 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." Upholding the law would therefore create an unprecedented category of speech restrictions, chilling freedom of expression in other media. Never before have courts used expressions of violence as the basis for a restriction on Americans' constitutional rights to free speech.

"The state of California implicitly concedes that its law cannot withstand strict scrutiny, which is why it focuses instead on trying to carve out an entirely new category of unprotected expression based on violent content," said Doroshow. "But there is no historical or legal basis for such an exception, the limits of which would be impossible to define with any meaningful clarity.  As a result, all expressive media – including movies, television, books, and music – would be at risk."

The Entertainment Software Association is the U.S. association dedicated to serving the business and public affairs needs of companies publishing interactive games for video game consoles, handheld devices, personal computers, and the Internet. The ESA offers services to interactive entertainment software publishers including a global anti-piracy program, owning the E3 Expo, business and consumer research, federal and state government relations, First Amendment and intellectual property protection efforts. For more information, please visit

SOURCE Entertainment Software Association