California outlined its case for a law that would make it a crime to sell violent videogames to minors in a 59-page brief filed on Monday with the U.S. Supreme Court.

Kotaku’s Stephen Totilo managed to get his hands on some, or all, of the document and pulled out some of the more interesting pieces.

Once again, the actual text of the currently blocked law at the heart of Schwarzenegger v. EMA:

EA.com Editor-in-Chief Jeff Green took to his corporate blog to write about why gamers should care about Schwarzenegger v. EMA.

Agreeing with EA CEO John Riccitiello, who said that a Supreme Court decision upholding the California law would “screw us up in a real way,” Green argued:

… it could have a chilling effect on the gaming industry as a whole--both the makers and sellers of the games, who will have to seriously think twice about the kind of product they can and want to sell, out of fear of ending up in jail. And therein lies the bigger question at hand. Because if you substitute books or movies or music in the previous couple sentences, you can see just how wrong this is.

Because the California law at the center of Schwarzenegger v. EMA is unable to specifically define exactly what entails a “violent” game, one practicing lawyer predicts a win for the game industry when SCOTUS eventually hands down its ruling on the legality of restricting the sale of such games to minors.

The lawyer behind The Fine Print blog notes that free speech under the First Amendment “has never been unlimited,” especially when it comes to minors. He details two of the better known exceptions:

First, child pornography is outright censored in the United States; it is illegal to make, sell, or own, no freedom whatsoever. The sale of pornography to minors is also restricted, on the theory that while adults can choose for themselves if they can “handle” pornography, children won’t know until it’s too late that something is too much for them or harmful to their well-being.

The Escapist’s Russ Pitts met up with Entertainment Consumers Association (ECA) President Hal Halpin at this year’s E3 Expo for a discussion of the Schwarzenegger vs. EMA case, which has ended up in front of the Supreme Court.

After stating that a loss in the case could be “staggering and widespread,” in terms of its impact on gamers, Halpin was asked to describe the what's at stake in “broad strokes.”

He answered:

Entertainment Software Association (ESA) President Michael Gallagher is “humble” about how trade group might fare in front of the U.S. Supreme Court, as the nation’s highest court prepares to rule on Entertainment Merchants Association (EMA) v. Schwarzenegger, which centers on a California law that attempts to make it illegal to rent or sell violent videogames to underage consumers.

In a pre-E3 briefing recounted by Joystiq, Gallagher said about the case, “We believe we're on the side of right here. We've believed that for 10 years. That hasn't wavered one iota. You go into this preparing to win, but also very prepared to handle the other conclusions as well”

While the Entertainment Software Association (ESA) won a partial victory (preliminary injunction) earlier this year against the Chicago Transit Authority (CTA) over an ordinance that attempted to prohibit Mature (M)-rated game advertisements, the trade group now has an even clearer win under its belt, as a Judge has permanently banned the CTA from “enforcing or directing” enforcement of the ordinance.

In a ruling (PDF) handed down on May 17 in the U.S. District Court for the Northern District of Illinois, Eastern Division, Judge Rebecca Pallmeyer—who granted the preliminary injunction as well—ordered judgment against the CTA and dictated that prompt notice of the judgment be given to CTA officers, and any agents, servants, employees and attorneys. The CTA also agreed not to “appeal or otherwise attack the validity or enforceability of the Consent Judgment and Permanent Injunction.”

In what can only be categorized as "no great shock to our readership," Michigan State University law professor Kevin Saunders will help the state of California when the Supreme Court revisits Schwarzenegger v. Entertainment Merchants Association later this year. Saunders will help co-author an amicus brief to help California’s position when arguing its case before the U.S. Supreme Court during its 2010-11 session, which begins in October. As you probably already know, Saunders testified during the 2005 California State Assembly Judiciary Committee hearings on the issue at the invitation of Leland Yee. His arguments were obviously against the industry and for the law written by Yee.

Saunders' statements on the matter almost sound like the ECA's, EMA’s or the ESA's position:

"Parents need to play an active role in deciding what is appropriate for their children."

No disagreement there. But then he makes it sound as if the law helps to insure that universal truth:

Following the nomination of Elena Kagan to the U.S. Supreme Court, some free speech advocates painted her First Amendment stance as a concern, which caused a bit of anxiety in the gaming world as Kagan (if confirmed) would have a voice in the SCOTUS review of Entertainment Merchants Association (EMA) v. Schwarzenegger.

New Kagan documents released today by the White House, may cast the nominee in a different light however. AOL News gathered some details from the document dump that could be interpreted to show Kagan as a champion of media. The following are “significant cases” listed by Kagan herself from the time period when she served as an associate at Williams & Connolly from 1989 to 1991:

In response to the U.S. Supreme Court’s decision to review Schwarzenegger v. EMA —a California law that would make it illegal to sell violent videogames to children—The Entertainment Consumers Association (ECA) is launching a two-pronged initiative designed to show the Court exactly how gamers feel about their First Amendment rights.

The ECA plans to submit an amicus brief to the Court and has also launched an online petition that will urge the Court to hold videogames as free speech, protected under the First Amendment.

ECA President Hal Halpin stated:

California State Senator Leland Yee (D - San Francisco), the man behind the original legislation that’s now made its way to the Supreme Court, has offered his thoughts on SCOTUS nominee Elena Kagan.

Noting that Kagan has “argued for very limited exemptions to the First Amendment including areas of hate speech, pornography, military recruitment, and animal cruelty,” Lee said of the nominee:

I commend President Obama on the selection of Elena Kagan to the Supreme Court.  Ms. Kagan is well-qualified for this important post and should be immediately confirmed by the US Senate.  While championing First Amendment rights, she has correctly opined that there is a need for very narrow exceptions to protect society and children.

 

I look forward to her consideration of our law to ensure parents have a voice in determining which video games are appropriate for their children.

The Los Angeles Times recently peppered State Senator Leland Yee with a few questions about the original legislation he penned making it all the way to the United States Supreme Court.

Perhaps the best question posed to Yee asked how he could introduce legislation that would make it illegal to sell violent games to minors when he is not very familiar with games at all.

Yee answered:

That is a fair criticism. I'm not a player. But I have seen individuals who play these games. I have seen individuals using a baseball bat and bludgeoning a hooker to death, or taking a gun and shooting a cop. Those are the direct result of someone pushing a button and making a conscious decision. I can see that that kind of connection between your action and the consequent behavior is dangerous.

With a movie you can sit there for two hours and see everything. In these violent games, parents may never fully understand what they contain because you have to be a very sophisticated player to trigger them.

NPR’s Diane Rehm turned her focus to violent videogames yesterday in a radio show that featured California State Senator Leland Yee, Grand Theft Childhood co-author Dr. Cheryl Olson, the Entertainment Software Association’s (ESA) Richard Taylor, Eugene Volokh, Professor of 1st Amendment Law at the UCLA Law School and researcher Craig Anderson from Iowa State University.

The nearly hour-long show began by discussing the Supreme Court’s decision to review California’s violent videogame law with Yee, before moving on to Anderson, who mentioned his recent research. Rehm then indicated that she watched “a bit” of Grand Theft Auto in order to become familiar with the subject, before asking Taylor to explain how popular “these games” are, who is playing them and what the effects are.

Southern California Public Radio yesterday aired a 30-minute segment (MP3) on the California violent videogame law that will be discussed by the U.S. Supreme Court.

California State Senator Leland Yee appeared, and voiced much of the same opinions that he offered up through a mini-podcast his camp released yesterday. Representing the other side was Entertainment Merchants Association (EMA) VP of Public Affairs Sean Bersell.

Bersell framed the current drama as he sees it:

California State Senator Leland Yee (D), the man behind the original legislation that has now made its way to the United States Supreme Court, released a short piece of audio (MP3 here) in which he offers reactions to SCOTUS’ decision to review the law.

Yee termed himself “thrilled” with yesterday’s news, calling it an “affirmation of some of the things that I have been thinking about, working on…”

He called the law a “balanced bill,” saying that “it tries to do what it can to protect and help kids, but at the same time, not trample on our First Amendment.”

Yee on the surprise most felt when hearing that SCOTUS would review the case:

Via Orders of the Court (PDF) just issued at 10:00 AM ET this morning, The Supreme Court of the United States has granted the petition for a writ of certiorari to the California side of Entertainment Merchants Association (EMA) v. Schwarzenegger.

This means that the nation’s top court will indeed review a decision by the 9th Circuit Court of California in February of 2009, which struck down a California law that would make it illegal to rent or sell violent videogames to consumers under the age of 18. Retailers who violated the law would be subject to fines of up to $1,000.

The U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, Ohio has ruled that a state statute, which imposes penalties for disseminating sexually-explicitly material to minors, cannot be applied to open communications, such as websites, public chatrooms or email-based listservs and mailing lists.

In American Booksellers Foundation for Free Expression (ABFFE) v. Strickland, the Court ruled (PDF) that the law should apply only to “personal directed” communication—such as person-to-person email or a private chatroom—“between an adult and a person that the adult knows or should know is a minor.”

The San Francisco Examiner previously noted the importance of the case to a variety of online sellers, including videogame retailers:

The nation’s highest court will gather this Friday in order to discuss, among other things, whether or not it should review a California law preventing the sale of violent videogames to children.

The Supreme Court’s website shows that Entertainment Merchants Association (EMA) v. Schwarzenegger was “distributed for conference of April 23, 2010.” The order was dated April 20, 2010, giving more credence to popular thought that case number 08-1448 was shelved until a decision was reached on the First Amendment case of United States v. Stevens, in which the Court voted 8-1 that the government cannot outlaw expressions of animal cruelty.

The Supreme Court today issued a ruling on a First Amendment case that could have a direct impact on the Entertainment Merchants Association v. Schwarzenegger appeal which has been languishing in the nation’s top court.

United States v. Stevens centered on the rights of Robert Stevens to sell or traffic in media that depicted animal cruelty. Stevens was arrested under a 1999 law that attempted to forbid the depiction of cruelty against animals. SCOTUS ruled 8-1 that the government, per the SCOTUS Blog, “lacks the power to outlaw expressions of animal cruelty, when that is done in videotapes and other commercial media.” The decision (PDF) essentially nullifies the 199 law.

Chief Justice John G. Roberts, Jr. wrote that the court “was not restricting the power of government to punish actual acts of animal cruelty,” but that “there was no similar history behind Congress’s attempt to ban video or other portrayals of acts of cruelty to living creatures.”

The Entertainment Software Association (ESA) spent $4.604 million on its lobbying efforts in 2009, a significant jump over 2008’s total of $3.654 million.

The group spent $1.208 million in the second, third and fourth quarters of 2009 and $980,000 in last year’s first quarter. 2008 saw $980,000 spent in quarters two, three and four, and $714,364.50 in its  first quarter.

Taking a look at a report (PDF) on the ESA’s fourth quarter expenditures for 2009 shows lobbying funds spent on issues such as the Constitution (First Amendment Protection, Ratings, Video Game Sale Regulation), Copyright/Patent/Trademark (Anti-Piracy, IP Enforcement), Trade (Free Trade Agreements, Special 301 Designated Countries, Trade Policy Reform), Computer Industry (Internet Governance, Virtual Worlds), Immigration (High-Skilled Workers, H1-B Visas and Green Cards) and Telecommunications (ISP Management, Copyright Enforcement, Broadband Deployment).

In a ruling that could have a trickle down effect on online videogame dealers, the Ohio Supreme Court has issued its opinion on what constitutes the distribution of material that is harmful to juveniles, regarding the Internet as a medium.

The American Booksellers Foundation for Free Expression originally levied the suit (Am. Booksellers Found. for Free Expression v. Strickland)  in Ohio, asking a court to overturn Ohio code 2907.31, which broadly deals with the dissemination of matter harmful to juveniles. A federal district court originally concluded that the code was too broad and a violation of the First Amendment, and suggested shelving enforcement of the law. That decision was appealed to a 6th Circuit Court.

The 6th Circuit Court eventually asked Ohio’s Supreme Court for an answer on two specific legal questions swirling around the case:  A) should the scope of the code be applied to instant messaging, person-to-person emails and private chat rooms and B) should material posted on general websites and chat rooms be exempt from liability?

The Ohio Supreme Court answered each question in the affirmative in a 7-0 vote.

The matter will now be returned to the 6th Circuit Court who will determine the codes constitutionality.

The San Francisco Examiner noted the importance of the case for a variety of online sellers:

The group had argued the law could be applied broadly to online material and erode the constitutional free speech rights of online booksellers, newspaper publishers and video game dealers. Technology, they say, can't always keep the harmful information from children.

The Entertainment Software Association (ESA) has won a preliminary injunction in its lawsuit against the Chicago Transit Authority (CTA) over the banning of advertisements for adult-rated videogames.

An ordinance (008-147) that took effect in January of 2009 prohibited any advertisement that “markets or identifies a video or computer game rated ‘Mature 17+’ (M) or ‘Adults Only 18+’ (AO).”  The ESA argued that such a ban unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.”

The United States District Court for the Northern District of Illinois granted the ESA an injunction, with Judge Rebecca R. Pallmeyer stating:

…the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.

The ESA further challenged that the CTA ordinance is redundant since videogame-related marketing is already regulated by the Entertainment Software Rating Board’s (ESRB) Advertising Review Council.

ESA President Michael Gallagher was obviously pleased:

This ruling is a win for Chicago's citizens, the video game industry and, above all, the First Amendment. It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources.

The Federal Communications Commission (FCC) has released a Notice of Inquiry (NOI) seeking feedback and responses to the subject of the affect of electronic media on children and whether or not the Commission should have more power to wield authority.

Released on October 23, Empowering Parents and Protecting Children in an Evolving Media Landscape presents some of the influence (both pro and con) emerging media has on youngsters, before asking for additional data on these subjects. Specifically the FCC is seeking “information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks.”

The FCC also is asking commenters to “to discuss whether the Commission has the statutory authority to take any proposed actions and whether those actions would be consistent with the First Amendment.”

FCC Chairman Julius Genachowski included a statement with the NOI in which he noted that “twenty years ago, parents worried about one or two TV sets in the house,” while today, media choices are far more widespread for children, including videogames, which “have become a prevalent entertainment source in millions of homes and a daily reality for millions of kids.”

Genachowski continued:

This Notice of Inquiry recognizes the importance of undertaking a comprehensive approach to assessing how children can best be served in the digital media landscape. The vital role of government in this media environment is therefore to empower parents and protect children, while honoring and abiding by the First Amendment.

Thanks² Sean

Joystiq’s latest Law of the Game column breaks down the theories of a research paper released last week by a Michigan State University College of Law Professor.

The paper’s author, Renee Newman Knake, argued that videogame legislation advocates could take cues from the environmental movement and employ “ecogenerism” in their bid to improve the chances of such legislation being passed in the future.

Mark Methenitis, the author of the Joystiq piece, begins by noting that Knake’s premise “starts from the basic flawed premise that we have ‘proven’ a ‘causal’ link between media violence, specifically video game violence, and real world violence.”

Methenitis then picks apart Knake’s focus on “ecogenerism,” or controlling “pollutants” (videogames in this case) in a child’s environment. He offers multiple responses to Knake, including the following analogy:

A multi-vitamin for children, in appropriate doses, has many positive and no negative side effects, except in rare cases. However, an overdoes of vitamins can be fatal. Parents who bring home vitamins don't put them out in a dish on the floor and let the kids go nuts with them; they keep them in a childproof container and give them one a day.

Methenitis concludes that the views of this research paper are “at best, a rose by any other name,” offering:

The courts have frequently said that the activity of the bedroom is beyond the scope of government control, and I, for one, think the activity of the living room should be as well.

The office of California State Senator Leland Yee (D-San Francisco) let us know that the politician has been honored by the First Amendment Coalition (FAC) with its Beacon Award.

The award recognizes Yee’s “legislation in support of government transparency and the rights of student journalists and their advisers.”

The original author of California’s videogame law, which is still sitting in appeal before the United States Supreme Court, said about the award:

There is little that I take greater pride in than our legislative efforts to increase transparency of government and protect the speech rights of California students.  With the help of the First Amendment Coalition, we have passed landmark open government laws.  Unfortunately, at times, we have also fallen victim to the Governor's veto pen.

Yee was one of four Beacon Award winners. Full details can be viewed here.

A research article penned by a Michigan State University College of Law Professor examines video game related legislation and asks if prompts can be gleaned from the environmental law and ethics movement in order for such legislation to have a better chance of being passed in the future.

From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations was written by Renee Newman Knake.

The heart of the matter, writes Knake, is “the disconnect between law and social science,” or the reluctance of U.S. courts to recognize (what she terms) the consequences mass media has on children.

Knake writes:

Environmentalists successfully established a regulatory framework for evaluating empirical science in the face of uncertainty and arguments questions about the validity of research. The movement to protect children from media harm can do so as well.

Knake’s paper relies heavily on the research of Barbara Bennett Woodhouse, who coined the term “ecogenerism,” or someone who thinks about child welfare as well as a wide range of other problems confronting children and society.

Thus, Woodhouse concludes that research “clearly establish[ing] but fall[ing] short of conclusively proving a causal connection between harm to children and exposure to media violence” could be relied upon by legislators in adopting regulations so long as it is rooted in science, not popular opinion.

She concludes:

The law’s continued refusal to recognize mass media and marketing harm to children has left researchers and regulators in a strange position, waiting until science might sufficiently advance to satisfy a court’s causality requirements and in the meantime engaging in a seemingly fruitless exercise of tweaking statutory language in an effort to survive First Amendment strict scrutiny.

The full paper can be downloaded here.

The case of a gamer who sued Sony Computer Entertainment America (SCEA) over being banned from the PlayStation Network has been tossed out of court.

After being banned for “multiple violations” on PSN, the Resistance: Fall of Man player Erik Estavillo had sued SCEA for violating his First Amendment rights (for the PSN ban) and for money he had invested into the PSN Wallet Fund. He sought $55,000 and an injunction that would limit SCEA from banning any players in any form on the network.

Northern District of California District Judge Ronald M Whyte ruled that there was no plausible First Amendment claim for relief stated and dismissed the case.

The Technology & Marketing Law Blog (via Gamasutra) zeroed in on one specific comment of Whyte’s, that “Sony's Network is not similar to a company town.” Blogger Eric Goldman wrote:

…this opinion emphatically rejects a meme that has become pretty popular among virtual world exceptionalists. Some exceptionalists have favored the company town analogy because it enable virtual world customers to reduce an operator's ability to run its business capriciously.

A PDF version of the Order Granting Defendant's Motion To Dismiss is also available on the aforementioned blog.

As noted earlier this week, the Supreme Court was scheduled to look into an appeal of Entertainment Merchants Association v. Schwarzenegger yesterday, September 29.

EMA v. Schwarzenegger was not on the list of Miscellaneous Orders issued this morning by SCOTUS, which could mean that the petition was denied. When considering a petition for certiorari, SCOTUS will deny such appeals without comment, but the official outcome won’t be known for sure until Monday morning, when an Order List is issued from the Court.

The United States Supreme Court is scheduled to address an appeal of a Californian videogame law tomorrow, September 29.

Entertainment Merchants Association v. Schwarzenegger (formerly known as The Video Software Dealers Association (VSDA) v. Schwarzenegger), revolves around a Californian law that banned the sale of certain videogames to anyone under 18 years of age. First signed into law by Schwarzenegger in 2005, the law was rejected again in February of 2009 by the 9th Circuit Court of California, which upheld an earlier 2007 ruling that deemed the law unconstitutional.

Schwarzenegger and California Attorney General Jerry Brown appealed to the Supreme Court in May of this year, marking the first time a case involving the restriction of violent game sales to minors has ever been considered by the top court of the United States.

As part of the proceedings, The Supreme Court will also decide whether to accept the amicus brief filed by California State Senator Leland Yee (D) in July of 2009. In the brief, Lee, who authored the original statute at the center of the whole case, argues why the Supreme Court should approve the state of California’s petition for a full hearing. He was supported in the brief by the California Psychiatric and California Psychological Associations.

The Supreme Court’s decision could take a few days or more. A final decision should be made public by next Monday, October 5.

Update: Just to clarify, The Supreme Court did consider a similar topic when ruling on American Amusement Machine Association et al. v Kendrick et al. in 2001, when it denied the City of Indianapolis' petition for certiorari. That case centered on an attempt by the city to limit the display and operation of currency-based machines deemed harmful to minors.

Video game publishers group ESA has released its annual report for the 2009 fiscal year, which concluded at the end of March.

As noted by Venture Beat,

The ESA fought 43 bills aimed at regulating content or controlling access to video games and none became law... Meanwhile, five states enacted tax incentives for the creation of game development jobs. Another 17 states are considering enacting the incentives.

The group said that it will be hard to get the attention of the federal government and Congress, which is preoccupied with issues such as climate change and healthcare. The ESA wants more done to stop piracy of games...

Sometime this fall, the U.S. Supreme Court is expected to review California's appeal of lower court rulings striking down its 2005 violent video game law as unconstitutional. Yesterday, the video game industry submitted its position to the Court.

In a 41-page brief compiled by attorney Paul Smith of Jenner & Block, the game industry relies heavily on precedents set by a history of failed attempts by state and local governments to impose age-based restrictions on video games. Indeed, the game biz has never lost such a case and Smith has been their successful point man for many years. From the brief:

Despite [California's] efforts to conjure up some argument for review of the Ninth Circuit’s decision, in reality the decision is a routine application of established First Amendment principles to a content-based ban on protected expression.

Petitioners offer no persuasive reason for the Court to review this ruling. There is no split of
[past decisions] on the questions presented. To the contrary, the lower courts are unanimous as to the constitutionality of bans on distribution of violent video games. That is unsurprising...

California was not the first state to try to restrict distribution of video games it considered too violent for minors. Such laws have proved politically popular, but every one has been struck down under the First Amendment...

Smith and his fellow attorney also dig into California's assertion that children should be legally shielded from violent video games as they are from obscenity. California's causation arguments, which attempt to link violent video games to violent behavior, are also taken to task.

DOCUMENT DUMP: Grab a copy of the game industry brief here (41-page PDF)...