Industry Supporters in SCOTUS Case May “Equal or Exceed” Detractors

September 1, 2010 -

As a September deadline looms for submitting amicus briefs in the Schwarzenegger v. EMA Supreme Court case, both sides are still hard at work recruiting advocates.

In an excellent Law.com story on the subject, a few claims and quotes jump out, including a comment from Activision Blizzard EVP and Chief Public Policy Officer George Rose, who said, “We wouldn't be surprised if the number [of states siding with the industry] was equal or exceeded the number backing California.”

Meanwhile both California Supervising Deputy Attorney General Zackery Morazzini, who will argue California’s side on November 2, and Louisiana Department of Justice Appellate Chief S. Kyle Duncan, who authored the brief for states backing the California law, seem to think that Utah Attorney General Mark Shurtleff “is taking the lead in drafting a brief supporting the industry and discussing it with AGs of other states.”

Despite the thinking of Morazzini and Duncan, Shurtleff still has yet to publically commit to a side. It was reported that in addition to First Amendment concerns, an additional Shurtleff peeve with the law revolves around “government intervention when parents should be monitoring their children's video game use and preventing them from playing games with sex and violence.”

Duncan also alluded to the “intense lobbying” of states by the game industry.
 
Rhode Island Attorney General Patrick Lynch is also, apparently, still on the fence about joining a side’s brief. A spokesman for Lynch stated, “Whatever decision he makes on this sign-on letter will be based on the merits of the issue.”

It was reported that “people affiliated with the ESA contributed about $2,500 to Lynch's campaigns for Rhode Island attorney general and for the 2010 Democratic gubernatorial nomination,” so perhaps that bodes well for the game industry team.

Common Sense Media CEO James Steyer discussed some of the problems he faced when attempting to get a law firm to pen an amicus brief in support of the law, saying that “they all had a conflict because they represented the entertainment industry. He eventually settled on Columbia Law School professor Theodore Shaw.

Jenner & Block Appellate Chair Paul Smith will be arguing the game industry side on November 2.

Comments

Re: Industry Supporters in SCOTUS Case May “Equal or ...

The CEO of something called "COMMON SENSE MEDIA" is supporting California? I love irony.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

If censorship does come to the US I'm getting it uncut with a PEGI rating not an edited version. Also I signed the petition that they are giving to the Supreme Court. I guess I could also email the California govenor and tell him what I think of the law.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

For crying out loud man!  For the love of cute, fluffy kittens the world over, please use the damn reply button!

Anyway, that's all well and good but not only has nationwide censorship as a result of the chilling effect of this state law not happened yet, it's unlikely to ever happen but even if it did, it's certainly not happening anytime soon so why have you already preordered?  Plus, there's no guarantee that publishers will produce multiple skus (a watered down American version and uncut international one). 

Of course, if you're doing it to make a statement, hey, good on you but you're still severely jumping the gun.

 

Andrew Eisen

Re: Industry Supporters in SCOTUS Case May “Equal or ...

The law is about selling games to minors, yes?  Not about producing games.  Not about playing games.

My read is that this will mainly affect retailers.  There's no way publishers will accept the costs of making a cut version for California.  Given that only one state is affected by this law, I find it more likely that we'll just see retailers changing their practices.  An adults-only back room for smaller or games only shops (EB, GameStop) and simply no violent games at the more generic retailers (Walmart).

If enough states enact similar legislation and it becomes economically viable to produce cut versions that may happen.  Though I expect they'd still want to keep costs down and the cut version would be the only version.  Worldwide.  We're not talking about small cuts to make something get a rating in Australia, we're talking about major cuts to ensure the law doesn't apply.  And the tendency will be to err on the side of caution.

Mostly I think this is just an example of a huge waste of resources by an already cash-strapped state on something that wont really do anything except hurt the economy further.

===============

Chris Kimberley

===============

Chris Kimberley

Re: Industry Supporters in SCOTUS Case May “Equal or ...

This law does say that video games are unprotected speech. So if its unprotected the government can censor what it wants. Thats what I'm afraid of.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Please use the reply button.

And no, that's not what the law says.  Still, I see what you're saying and if in some bizzaro universe this law was actually given the go ahead by the Supreme Court, then yes, it would set a horrible and very frightening precedent that could easily be abused in the future.

 

Andrew Eisen

Re: Industry Supporters in SCOTUS Case May “Equal or ...

But this would also make violent games 18 and up and since thats the same age as AO rated games, won't that make them not want to carry them. Also with the threat of a 1 thousand dollar fine hanging above thier head the threat of getting fined might make them only stock E to light T games.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Not all violent games, just the ones that fall under the law's definition but yeah, your example is one possible result of a chilling effect imposed by CA's absurd law.

 

Andrew Eisen

Re: Industry Supporters in SCOTUS Case May “Equal or ...

I hope Europe keeps the games uncut. I have 3 games on pre order from a UK store.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Why?  You really think the Supreme Court is going to side with the state?

 

Andrew Eisen

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Its a 50/50 chance. I am just being cautious. I am pretty sure the video game industry will win. But I am also quite paranoid about stuff.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

I don't agree with the odds you're putting on this but why preorder from the UK?  How is that a sensible way to prepare for the Supreme Court ruling against the industry?

 

Andrew Eisen

Re: Industry Supporters in SCOTUS Case May “Equal or ...

While this law is certainly sinister, I don't see games being outright banned under it. If the Supreme Court does rule for California, they will probably not say that games aren't speech. Rather, a ruling like that would say that the games are speech, but minors aren't automatically entitled to view it. I can't see them supporting a law that would ban adult access to violent games (the industry should therefore analogize this case to the Internet porn cases where they said that attempts to curb minors' access resulted in a chilling effect for adult access).

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Violence could be banned in video games with laws criminalising it. It could be illegal to import the uncensored versions from other countries. Games could be classified like drugs are. The more violence the more trouble you are in for owning it.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Do you know what the law in question actually says?

Re: Industry Supporters in SCOTUS Case May “Equal or ...

I'm still shocked by how the games industry isn't in 100% panic red-alert mode.  We are talking about the potential DEATH of games as a creative medium should they lose 1st Amendment protection.  A loss here will relegate the medium to little more than puzzle games and children's content.  Developers, consumers, and businessmen alike should be storming this in droves.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

I don't think I understand what you are saying? The games Industry has been fighting this for 5 years now. But now because they are not sending out press release and press release and filing petition after petition, they aren't doing anything?

I am glad they are not in "100% panic red-alert mode". That means that they are carefully developing their strategy before moving forward.

E. Zachary Knight
Oklahoma City Chapter of the ECA
http://www.theeca.com/chapters_oklahoma

Re: Industry Supporters in SCOTUS Case May “Equal or ...

I agree with you here. I like how they are doing this carefully and not being smug or too confident about winning. I think the best thing they can do is look for groups to support them because of the dangerous and bad presedent this could send if it's found to be constitutional. In the end even the Holy Bible, Homer's Oddessy and Dante's The Divine Comedy could be considered obscene if the court rules that violence is equal to obscenity.

Common sense says that children probably shouldn't be playing these games but common sense doesn't trump the Constitution (otherwise the Double Jeopardy clause should be thrown out) and in the end this issue is better left with the parents then the nanny-state who can do many dangerous things with a ruling in their favour.

 "No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Indeed, I think the ESA and industry more broadly have been doing a lot to make sure the court will hear a lot of voices opposing the California law in the amicus briefs.  And of course they'll have their own brief.

The article was interesting.  Seems the one thing that's got people nervous is just the fact that SCOTUS granted centori despite no disagreement among the lower courts.  I admit that's got me nervous as well...trying to mind read 'em.

 

 

Re: Industry Supporters in SCOTUS Case May “Equal or ...

The industry has a LOT of experience fighting these kinds of things.  So much so that they even got a certain lawyer disbarred.

If I remember correctly, even he said that the California law was unconstitutional.

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

They didn't get that lawyer disbarred, he did it to himself.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

I´m also disturbed that the only group which is doing nothing or don´t care about this is the industry itself, and that´s their biggest weakness.

Not being concerned about this is dangerous and this can lead, like you said, to the loss of the freedom they are enjoying now days.

------------------------------------------------------------ My DeviantArt Page (aka DeviantCensorship): http://www.darkknightstrikes.deviantart.com

Re: Industry Supporters in SCOTUS Case May “Equal or ...

What on Earth are you talking about?  The article you are replying to -- this one, the one at the top of the page you are reading right now -- is about the industry contacting state AG's looking for backing.  They're not exactly sitting on their hands.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

You're over-reacting. Over a dozen states have drafted similar legislation, and every single one has been shot down. This one has, too, but Schwarzenegger won't let go (as far as I know, nothing has really been done to make it any more constitution-friendly)

I'll admit that if Schwarzenegger wins this, it sets a dangerous precedent, but I'm pretty sure the flaws will emerge before any other states get a chance to pass their own legislature.

For starters, California is going to need to set up some sort of ratings board (Using the ESRB's ratings would violate the 14th Amendment), which is going to cost money we don't have. The state's already suffering economy will take a dive as people smuggle games in from out of state rather than buy them locally, and it's possible that video game companies in the state will think about moving headquarters.

Quite simply, this would be a really bad idea for California, and quite frankly, Schwarzenegger should be opposing this, not pushing it.

Re: Industry Supporters in SCOTUS Case May “Equal or ...

Schwarzenegger himself has no stake in this, his name is only on the lawsuit as a formality in his capacity as Governor. It's the original proponents of the law that are pushing this one to the Court.

 
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