ESA and EMA File SCOTUS Brief

Billing the California law at the heart of the Schwarzenegger vs EMA Supreme Court case as the “latest in a long history of overreactions to new expressive media,” the Entertainment Software Association (ESA) and Entertainment Merchants Association (EMA) have filed their argument against the restriction of videogame sales in California.

The brief contends that videogames are a form of expression “as rich in content as books and movies,” and that they “are fully protected by the First Amendment.”

It was written that “California’s argument is not saved by the fact that the State is purportedly acting to assist parents,” adding:

That justification could justify a ban on virtually anything, including the sale of particular books to minors without parental consent. Parents certainly have the right to determine what expression they want their minor children to experience. But that parental prerogative does not give the government the right to decide what is worthy for minors to view.

 

The Court should continue to put its trust in parents in the first instance, rather than politicians.

The EMA and ESA then pose that “depictions of violence, unlike obscenity, have played a longstanding and celebrated role in expression properly consumed by minors, from Greek myths to the Bible to Star Wars and Harry Potter,” before claiming that California has not demonstrated that parents have difficulty monitoring the games their kids play, “nor has California shown that videogames are harmful to minors.”

Instead, the social science research California cites has been discredited by every court to have considered it. California’s studies do not show that video games are the cause of any harm or that they are any different from any other media. In the end, California’s arguments merely restate the attacks that have been mounted against every new medium as it has emerged, including the truecrime novel, motion pictures, and the Internet.

The brief further contends that California has failed to “demonstrate the absence of less-restrictive alternatives for achieving its stated goals,” and ignored the industry’s own “successful self-regulatory efforts,” while failing to “consider sponsoring its own educational campaign to reinforce existing voluntary industry efforts.”

The California law is also “unconstitutionally vague,” according to the brief, because some of its terminology has “no clear boundary in the context of a medium that is highly diverse and often fanciful.”

If SCOTUS backs the California law, the brief argues that policing content may prove so difficult, since “it will be impossible for game makers to know which games will trigger the law’s restrictions,” that “the only rational response might well be to stop selling video games to minors altogether.”

Oral arguements for the case take place in the Supreme Court on November 2.

Grab the full PDF here.


Thanks PHX Corp.!