Special Edition: Ruling in Brown v. EMA/ESA
On Monday, June 27, the United States Supreme Court announced its decision in the case of Brown v. Entertainment Merchants Association (EMA)/Entertainment Software Association (ESA), ruling in favor of the ESA. The Court found that a 2005 California statute regulating the sale and rental of computer and video games is unconstitutional. This is a tremendous victory for the entertainment software industry and the right of free expression.
Free speech is one of our nation's most cherished rights, and the Supreme Court has historically held content-based restrictions to the highest standards of scrutiny. This ruling is no exception. The Court has upheld the First Amendment and preserved American expression regardless of communication medium.
 The Supreme Court's decision also underscores the vitality, innovation and ingenuity of video game creation. Twelve lower federal courts had already struck down this and similar statutes, ruling consistently that those free speech protections apply every bit as much to video games as they do to books, movies and music. The Supreme Court has now concurred.
In addition, the ruling deals a decisive blow to any similar attempts to restrict content, particularly given the highly effective tools that already exist, including the Entertainment Software Rating Board (ESRB) ratings and parental controls available on game consoles.
To learn more about this important victory for entertainment software and free expression, please visit http://theesa.com/scotus.
ESA WELCOMES U.S. SUPREME COURT RULING AFFIRMING CONSTITUTIONAL PROTECTIONS FOR VIDEO GAMES
The ESA welcomed the U.S. Supreme Court's landmark decision rejecting a 2005 California statute that would have restricted the sale and rental of computer and video games. The association noted that the Court's action affirmed the free expression rights of video game artists and nearly a decade's worth of jurisprudence on this issue.
 In its 7-2 decision issued by Justice Scalia, the Court declared forcefully that content-based restrictions on games are unconstitutional, and that parents and consumers, not government bureaucrats, can make their own entertainment choices.
The decision, which is the thirteenth on this and similar statutes, stated that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music: “Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And “the basic principles of freedom of speech . . . do not vary” with a new and different communication medium.”
The U.S. Supreme Court affirmed many of the same reasons cited by lower courts when striking down this and similar statutes: that California failed to prove a causal link between violent video games and real-life violence; and that less restrictive means of achieving the state's intended goal of protecting children from harmful content exist. The U.S. Supreme Court said California failed in both respects.
Justice Scalia, writing for the majority, stated with regard to the validity of the scientific evidence put forth by the state, “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, 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, '[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.'”
Because the California statute attempted to restrict free speech on the basis of content, the state also had to prove that its proposed remedy was the narrowest possible way of furthering that interest. As the Court found, less restrictive means in fact exist, namely the ESRB rating system and parental controls available on game consoles. Of the “least restrictive” requirement, the majority opinion stated, “California also cannot show that the Act's restrictions meet the alleged substantial need of parents who wish to restrict their children's access to violent videos. The video-game industry's voluntary rating system already accomplishes that to a large extent.”
ESRB President Patricia Vance applauded the Court's ruling, remarking, “Today's decision acknowledges the value and effectiveness of the ESRB rating system, the Federal Trade Commission's positive assessment of our self-regulatory regime, and the latest research showing that game retailers overwhelmingly enforce their voluntary store policies regarding the sale of Mature-rated games. In striking this law the Court has made clear that the video game industry effectively empowers parents to be the ones to decide which games are right for their children.”
The Court further rejected California's claim that the statute's justification lay in its ability to aid parents in monitoring game content. Justice Scalia wrote for the majority that, “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.”
The Court challenged California's attempt to create a new category of restricted speech, writing, “[T]he State 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. This country has no tradition of specially restricting children's access to depictions of violence.” The majority opinion also questioned California's reasoning for singling video games out from other expressive works, noting that classic children's stories such as Hansel and Gretel, The Complete Brothers Grimm Fairy Tales, and Cinderella
all contain elements of violence, as do other media that children are exposed to. “Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.”
Over 180 groups and individuals from diverse industries and backgrounds had weighed in on the legal and practical challenges inherent with this statute. Groups from retailers to attorneys general had raised concerns to the Court about the enforceability of the California law because of the inevitable vagueness that comes with attempting to delineate “unacceptable” or “objectionable” content, as well as the statute's potential future application to other forms of media. The Court's ruling makes it very clear these concerns were heard.
Responding to the Court's decision, the Motion Picture Association of America (MPAA) reflected on past efforts to restrict entertainment media. “From the very inception of the movie industry, attempts to restrict speech have threatened the creativity of American movie-makers,” said Chris Dodd, MPAA chairman and former U.S. senator. “We applaud the Supreme Court for recognizing the far-reaching First Amendment implications posed by the California law.”
The Court also found that the inherently vague language of the California statute would make it nearly impossible to enforce with any practical effect. On this point, Justice Scalia stated for the majority, “[T]he 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.””
In closing, Justice Scalia, again for the majority, writes, “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…Even where the protection of children is the object, the constitutional limits on governmental action apply.”
Michael D. Gallagher, president and CEO of the ESA, which represents the U.S. computer and video game industry, called the decision a historic win for the First Amendment and the creative freedom of artists and storytellers everywhere.
“Today, the Supreme Court affirmed what we have always known, and we are very gratified that our arguments were heard in this case,” said Gallagher. “The Court has now definitively held that legislative attempts to restrict video game content will be struck down.”
The ruling deals a decisive blow to any similar attempts to restrict content, particularly given the highly effective tools that already exist. Many legislators around the country are already working with the industry to promote awareness and use of these tools. This Supreme Court decision encourages more to do so. |
