ESA SCOTUS Press Release

November 2, 2010 -

The Entertainment Software Association issued a press release (here) detailing its efforts at the Supreme Court today.

Overall, the trade group dedicated to the video game industry was satisfied with how things went inside the court room and predicted that this decision - when it comes - could put an end to laws like the one California is proposing. The ESA and EMA were supported by friends of the industry that see California's law as an infringement on free speech rights.
 

The short story is that the ESA thinks the California law is wrong-headed, misguided and unconstitutional. The long story can be found below:

Video Game Industry Defends First Amendment Before U.S. Supreme Court

California Law Unconstitutional, Sets a Dangerous Precedent for All Media, Group Argues

November 2, 2010 – Washington, DC –The video game industry today asked the United States Supreme Court to uphold the rulings of two lower courts and find unconstitutional a 2005 California law restricting the sale and rental of computer and video games.

The Entertainment Software Association (ESA), the trade association representing computer and video game publishers, argued that the law imposes unprecedented restrictions on free speech rights, and would have significant consequences for other forms of artistic expression.

"The California statute is unnecessary, unconstitutional and would amount to unprecedented censorship of our First Amendment-protected speech," said Michael D. Gallagher, president and CEO of the ESA. "For these reasons, a highly respected group of 182 civil rights organizations, elected officials, business groups, entertainment industry leaders, and social scientists filed amicus briefs asking the Court to strike down this law."

Because the statute attempts to restrict free speech on the basis of content, the state must prove a compelling government interest that is addressed by the law and must also prove that the law provides the narrowest possible means of furthering that interest.

Paul Smith, of the law firm Jenner & Block, represented ESA in the oral argument before the Court. "The California law fails on both counts," Mr. Smith argued. "As lower courts, including the Ninth Circuit Court of Appeals, repeatedly concluded, and as 82 social scientists with expertise in psychology, psychiatry, neuroscience, criminology, media studies, and communications recently affirmed, no scientific evidence exists of a causal link between violent video games and real-life violence or psychological harm."

The ESA also argued that there are less restrictive means of ensuring that the computer and video games children enjoy are parent-approved. The Entertainment Software Rating Board rating system, lauded by the Federal Trade Commission as the gold standard of ratings systems, provides parents with the information they need to make informed purchasing decisions. Also, the parental controls available on all video game consoles sold today give parents the ability to block games they do not want their children to play. Furthermore, these measures do not limit the constitutionally-protected rights to free speech of all Americans.

"Knowing the California law fails strict scrutiny, the state seeks a free pass by asking the Court to carve out an entirely new category of unprotected expression based on violent content," said Kenneth L. Doroshow, general counsel of the ESA. "But such an exception, which has no historical basis or legal precedent, would know no limits and would inevitably lead to a stifling of creative expression across all forms of media, not limited to video games."

Never before has the Supreme Court recognized an exception to the First Amendment's protections for speech on the basis of its violent content. As such, the ESA argued today, the limits of this new category of unprotected expression would be impossible to define, logically, and perhaps inevitably, leading to further free speech restrictions in movies, television, books, music and even in the reporting of everyday news. It is for this reason that groups such as the Motion Picture Association of America, the National Association of Broadcasters, and the Society of Professional Journalists are among the many groups and individuals who have urged the Court to reject the law.

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 www.theESA.com.
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Comments

Re: ESA SCOTUS Press Release

I wonder why Smith didn't point out that there's nothing the proposed law could do that the industry hasn't already done itself. All it does is undermine the industry's work at keeping M rated games out of the hands of minors.

Re: ESA SCOTUS Press Release

He did make the point that the law used the age of 18 while the ratings which already exist use 17 and it would cause a conflict between what the ESRB is already doing.

Re: ESA SCOTUS Press Release

Yes but he didn't really challenge the statement that a minor could simply walk into a store and purchase an M rated game.

Re: ESA SCOTUS Press Release

He did say that the times minors were able to buy they were all 16 year old secret shoppers, and that there was no evidence at all of it happening beyond that.

Re: ESA SCOTUS Press Release

He didn't say a word about how store policy prohibits retailers from selling an M rated game to minors without checking for I.D.

Re: ESA SCOTUS Press Release

I don't think it was a matter of him forgetting or not feeling it was an important detail, I think he just didn't have a chance.

Look on page 44 when he's listing the reasons the law fails stict scrutiny, it's likely, had he not been interupted, he would have gotten to that.  Same thing with page 29/30 where he's talking about the multitude of tools parents have.  He mentions the ratings but he doesn't get far.

Also, it's apparent the justices are already aware of store policy and how successful it has been according to secret shopper surveys.  And I love Smith's response:

Sotomayer: "But it's still about 20 percent of sales are going to kids."

Smith: "That's when they send in somebody who's 16 to test the system. There isn't any evidence at all in this record that actual children, not testers, are in fact disobeying their parents and secretly buying these games, bringing them into the home and playing them for years without their parents unaware of it. There is simply no evidence of that at all."

 

Andrew Eisen

Re: ESA SCOTUS Press Release

Keep moving the goal posts why don't you?  If that's what you meant the first time it's what you should have said, sheesh ;P  .

Re: ESA SCOTUS Press Release

 So when do we hear the verdict?

Re: ESA SCOTUS Press Release

Probably next June.

 

Andrew Eisen

Re: ESA SCOTUS Press Release

June is the deadline. It is more probable we'll know sometime in the first quarter of 2011, say around Feb to March.

Re: ESA SCOTUS Press Release

I think it's more likely that the decision will be released sometime in March.

Anybody want to make predictions on when the decision is released, as well as who writes the majority opinion?

Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra. Hell will stay frozen over for quite a while since the Saints won the Super Bowl.

Geaux Saints, Geaux Tigers, Geaux Pelicans. Solidarity for the Saints = No retreat, no surrender. 2013 = Saints' revenge on the NFL. Even through the darkest days, this fire burns always.

Re: ESA SCOTUS Press Release

I'm gonna go Scalia for the majority.

Re: ESA SCOTUS Press Release

Here's how I see it:

The only difference between the free speech rights of adults and children is that children's can be squelched by their parents.

 

Andrew Eisen

 
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IanCBroke my EA boycott to pick up Plants vs Zombies Garden Warfare. Loving it. Still hate EA though. But i like Popcap. Gah.08/30/2014 - 6:01am
MaskedPixelantehttp://m.tickld.com/x/something-you-never-realized-about-guardians-of-the-galaxy Right in the feels.08/29/2014 - 6:56pm
AvalongodAgain I think we're conflating the issue of whether Sarkeesian's claims are beyond critique (no they're not) and whether its ever appropriate to use sexist language, let alone physical threats on a woman to intimidate her (no it isn't)08/29/2014 - 5:04pm
prh99Trolling her or trying to assail her integrity just draws more attention (Streisand effect?). Which is really not what the trolls want, so the only way to win (if there is a win to be had) is not to play/troll.08/29/2014 - 5:02pm
prh99Who cares, just don't watch the damn videos if you don't like her. Personally, I don't care as far as she is concerned as long there are interesting games to be played.08/29/2014 - 4:34pm
Andrew EisenZip - And yet, you can't cite a single, solitary example. (And no one said you hated anyone. Along those lines, no one claimed Sarkeesian was perfect either.)08/29/2014 - 3:51pm
Andrew EisenSaint's Row: Gat Out of Hell was just announced for PC, PS3, PS4, Xbox 360 and Xbox One making it the 150th game For Everything But Wii U! Congratulations Deep Silver!08/29/2014 - 3:49pm
ZippyDSMleeI do not hate them jsut think its mostly hyperlobe.08/29/2014 - 3:40pm
Andrew EisenSleaker - I'd say that's likely. From my experience, most who have a problem with Sarkeesian's videos either want to hate them in the first place (for whatever reason) or honestly misunderstand what they're about and what they're saying.08/29/2014 - 3:16pm
james_fudgeWe appreciate your support :)08/29/2014 - 2:55pm
TechnogeekIt gives me hope that maybe, just maybe, the gaming community is not statistically indistinguishable from consisting entirely of people that your average Xbox Live caricature would look at and go "maybe you should tone it down a little bit".08/29/2014 - 2:49pm
TechnogeekI just want to say that while I've disagreed with the staff of this site on several occasions, it's still good to see that they're not automatically dismissing Anita's videos as a "misandrist scam" or whatever the preferred dismissive term is these days.08/29/2014 - 2:49pm
E. Zachary KnightZippy, So you can't find even one?08/29/2014 - 1:04pm
ZippyDSMleeAndrew Eisen:Right because shes prefect and never exaggerates... *rolls eyes*08/29/2014 - 12:53pm
SleakerAnd honestly, nearly all of the games she references, or images she depicts I've always cringed at and wondered why they were included in games to begin with, from pinups through explicit sexual depictions or direct abuse. I think it's cheap storytelling.08/29/2014 - 12:35pm
Sleaker@AE - aren't most people fundamentally misunderstanding her at this point? haha.. On a related note I think a lot of the backlash is coming from males that think she is telling them their 'Generic Male Fantasy' is bad and wrong.08/29/2014 - 12:33pm
Andrew EisenAnd no, I don't think the female community would be upset over the performance of a case study in and of itself. Possibly the mostivations behind such a study, the methodology or conclusions but not the mere idea of a case study.08/29/2014 - 12:29pm
Andrew EisenAmusingly, these videos aren't saying you can't/shouldn't use tropes or that sexual representations are inherently problematic so those are very silly things to have a problem with and indicate a fundamental misunderstanding of the series.08/29/2014 - 12:29pm
SleakerDo you think the female community would get extremely angry over a male doing a case study on the negative impact of sex-novels and their unrealistic depiction of males and how widespread they are in american culture?08/29/2014 - 12:25pm
SleakerThe other thing that people might find problematic is that they see no problem with sexual representations of females (or males) in games. And realistically, why is there anything wrong with sexual representations in fiction?08/29/2014 - 12:24pm
 

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