Guest Column: ECA General Counsel Outlines Road Ahead for Schwarzenegger Case

October 25, 2010 -

With all of the interest around the violent video game case, Schwarzenegger v EMA, we get questions daily on the process, the case, the legal principals, our amicus brief, others’ briefs, and what is going to happen on the day of oral arguments and beyond. While we hope that the following information will shed some light on the oral argument process, we also routinely refer folks to the Supreme Court website, as well as to relevant articles on GamePolitics.

Yee “Hopeful” for SCOTUS Win

October 25, 2010 -

As the case surrounding a law he originally authored makes its way to the Supreme Court next week, California State Senator Leland Yee issued a handful of comments related to what will eventually be a landmark decision for gamers.

The Court will, of course, hear oral arguments for Schwarzenegger v EMA on Tuesday, November 2 at 10:00 AM.

Yee said he was “hopeful” that the Court would give “parents a valuable tool to protect children from the harmful effects of excessively violent, interactive video games.”

Yee additionally claimed that SCOTUS has "often ruled" in favor of protecting kids and limiting their access, citing topics such as "pornography, gambling, marriage, firearms, jury duty, tobacco, alcohol, voting, abortion, licenses, and the death penalty" as examples.

Yee continued:

PTC Wants You to Thank AGs That Supported California

October 19, 2010 -

The Parents Television Council (PTC) is urging its ranks to thank attorneys-general from the states that supported the California side in the Schwarzenegger vs. EMA case now before the Supreme Court.

The PTC’s website features the mailing and email addresses for AGs from Connecticut, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Texas and Virgina in order to make the process easier.

But what if you don’t live in one of the aforementioned states? The PTC then would urge you to “please write to thank California Governor Arnold Schwartzeneggar and California State Senator Leland Yee for creating and supporting this law.” Lee especially might appreciate such correspondence, as he, “in particular has come under attack from the videogame industry.”

Op-Ed Focuses on Retail Implications of Schwarzenegger Case

October 18, 2010 -

Entertainment Software Association (ESA) chief Michael Gallagher, along with Michigan Retailers Association (MRA) CEO James Hallan, took to the Lansing State Journal website for an opinion piece outlining the Schwarzenegger vs. EMA Supreme Court battle could impact retailers.

The piece states that the “misguided” California law—which contains “subjective and indefinite language” in relation to what would constitute an offensive game—is “particularly concerning for retailers,” because “the retail industry has already taken giant strides toward ensuring that violent videos do not end up in children's hands.”

According to the opinion piece, the “vague law” could be trouble for retailers because:

PTC Compares Game Industry Groups to Thugs

October 18, 2010 -

The Parents Television Council (PTC) has a short editorial up on its site in which the organization defends the California law at the heart of Schwarzenegger vs. EMA, claiming that the videogame industry has “resorted to half-truths to try to make its point.”

As far as the law restricting First Amendment rights, the PTC says it “does no such thing,” but “merely prevents the most objectionable content from being sold directly to children.”

Do children also have a "right" to purchase cigarettes and alcohol? Of course not! If the law prevents children from directly purchasing other types of material that is inappropriate or harmful for them, why shouldn't parents be able to rest easy knowing their child won’t be able to buy ultra-violent games without their permission?

37 comments | Read more

California: “Three-Prong” Test Will Preserve Free Speech

October 18, 2010 -

The petitioner in the Schwarzenegger vs. EMA Supreme Court Case is the state of California, and as such, it receives the opportunity to furnish the Court with a reply brief, in which it can argue against statements presented in the brief of the respondent.

California has done just this, submitting its reply brief (PDF, thanks PHX Corp!) in which it begins by stating that the respondents are off base in their attacks:

Respondents and their amici paint an alarming picture of government censorship of both classic and contemporary art and literature, ignoring the level of extreme violence depicted in the narrow category of video games that is actually covered by the Act.

A Sampling of the Controllers Headed Yee's Way

October 12, 2010 -

The Entertainment Software Association’s (ESA) Video Game Voters Network (VGVN) has posted the first batch of user submitted photos showing controllers submitted to California State Senator Leland Yee.

The VGVN, for those who missed it, is urging the gaming populace to show its distaste for the Yee-authored law, which, under the guise of Schwarzenegger vs. EMA, will appear in front of the Supreme Court on November 2, by sending in controllers with the words “I Believe in the First Amendment” written on them.

Yee on VGVN Initiative: Send Us Kinect Instead

October 8, 2010 -

Following yesterday’s news that the ESA - via their Video Game Voters Network - is asking gamers to send California State Senator Leland Yee broken or old videogame controllers with  “I believe in the First Amendment” written on them, we reached out to the Senator’s office for comment.

Yee’s Chief of Staff Adam Keigwin replied that, “I can only assume these broken controllers must represent the broken promises of the video game industry to parents.”

The response continued:

31 comments | Read more

VGVN Wants Gamers to Send Yee Their Broken Controllers

October 7, 2010 -

The Entertainment Software Association’s (ESA) Video Game Voters Network (VGVN) has launched a promotion designed to tweak California State Senator Leland Yee, the original author of that state’s videogame law which is now in front of the Supreme Court.

A good handful of gamers have probably destroyed a controller in a fit of rage, and while there’s a handful of things that the useless accessories could be used for, the ESA - via VGVN - is urging game enthusiasts to take the broken controller (or an old one), scribble “I believe in the First Amendment” on it and send it off to Senator Yee’s office.

19 comments | Read more

Scholars File Brief Opposing California Videogame Law

September 20, 2010 -

Eighty-two scholars and researchers signed their name to a brief voicing opposition to the California law at the center of Schwarzenegger vs EMA.

Noting that the issue now awaiting a Supreme Court ruling is subject to strict scrutiny because it attempts to regulate the sale of games based on content, the scholars’ brief argues that California has neither provided “substantial evidence” that games cause psychological or neurological harm to minors playing them, nor does the state “demonstrate that the restriction will ‘alleviate these harms in a direct and material way.’”

Additionally:

Indeed, California does not offer any reliable evidence, let alone substantial evidence, that playing violent video games causes psychological or neurological harm to minors. California confesses it cannot prove causation, but points to studies that it says show a “correlation” between the two. But the evidence does not even do that.

Extra Credits Outlines SCOTUS Case

September 2, 2010 -

The latest Extra Credits video, as seen on The Escapist, takes on the Schwarzenegger vs EMA Supreme Court case, offering a rather complete overview  for those who might not be totally up to speed on what this action could mean for gamers.

Thanks Andrew!

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.”

Schwarzenegger vs EMA Gets SCOTUS Oral Argument Date

August 23, 2010 -

Tuesday, November 2, 2010 at 10 AM ET is when oral arguments will be made in front of the Supreme Court of the United States for case number 08-1448, better known as Schwarzenegger vs EMA.

The one-hour long session is the first on that day’s calendar (PDF) and will see the Court answer a pair of questions related to a California state law originally authored by State Senator Leland Yee, which sought to ban the sale of violent videogames to minors.

The two questions posed to the Court are:

NYRA Preparing Amicus Brief for Schwarzenegger Case

August 16, 2010 -

The National Youth Rights Association (NYRA) is not pleased about the possibility of the Supreme Court ruling in favor of the California side of the Schwarzenegger v. EMA appeal and is asking for assistance from the gaming community as it prepares an Amicus Brief for submission to the Court.

In a blog post, the NYRA theorizes that no Supreme Court member has ever played a game, nor, (most likely) have the lawyers arguing for either side. As a “defender of the rights of youth,” and “as gamers,” the NYRA stated that “we need to make it clear that video games are more than random violence and that no one should be denied access to them.”

Here is what the organization is looking for:

ECA Prez Takes to PlayStation Blog to Seek Petition Support

July 16, 2010 -

Entertainment Consumers Association (ECA) President Hal Halpin was given the opportunity to make a post on Sony’s PlayStation blog in order to talk about why Schwarzenegger v EMA should matter to American gamers and to urge them to sign the ECA’s Gamer Petition.

Halpin began by stating, “At stake: gaming in America. Yes, you read that correctly.” He continued:

In the time since the Court’s announcement there has been a lot of media coverage, both from the enthusiast outlets and the national press. A disturbing theme that you’d find too often in the consumer comments is one of apathy. Perhaps it arose from winning in each of the violence in video game cases. Maybe because, from our perspective, it’s hard to wrap your head around the idea that we could lose — the logic seems pretty obvious.

ECA Taps Brooklyn Law School for Amicus Brief Assistance

July 14, 2010 -

The Entertainment Consumers Association (ECA) has drafted the Brooklyn Law School as a contributor to its amicus brief that will eventually be submitted to the Supreme Court in response to Schwarzenegger v EMA.

Students from the Brooklyn Law School’s Incubator & Policy (BLIP) Clinic will provide legal research and other assistance to the ECA and the law firm Hughes Hubbard & Reed LLP as they draw up the "friend of the court document." The resulting output will be sent over to the nation’s highest court on September 17 of this year.

| Read more

More from California’s SCOTUS Brief

July 14, 2010 -

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:

12 comments | Read more

Lawyer Predicts SCOTUS Will Strike Down CA Law

July 13, 2010 -

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.

California Submitting Arguments in Schwarzenegger v. EMA Today

July 12, 2010 -

The office of California State Senator Leland Yee (D-San Francisco) let us know that the state’s Attorney General Jerry Brown (D-Oakland) will submit California’s written argument to the Supreme Court, which voices the Golden State’s backing of a law that would make it illegal to rent or sell “excessively” violent videogames to children.

Yee is, of course, the original author of the law (AB 1179), which has made it all the way to the front of the Supreme Court in the form of Schwarzenegger v. EMA.

Citing a SCOTUS decision in United States v. Stevens, in which the Court declined to ban media depicting animal cruelty, Yee indicated that the law may have been constitutional if it was more focused, stating, “Clearly, the justices want to look specifically at our narrowly tailored law that simply limits sales of ultra-violent games to kids without prohibiting speech.”

Yee added:

Industry Leaders on Schwarzenegger v. EMA

July 6, 2010 -

Take-Two CEO Strauss Zelnick admits to being “worried” about the implications a Supreme Court ruling in favor of a California law at the center of Schwarzenegger v. EMA could have on the videogame industry as a whole.

Zelnick told CNBC he believes that “everybody in our business should be really worried about it.”

Other game industry suits worried that the law passing could lead to publishers needing to release multiple copies of a single game in order to satisfy the requirements of individual states. Electronic Arts CEO John Riccitiello said about such a situation becoming reality, “It will screw us up in a real way,” while Disney Interactive’s Graham Hopper added, “It’s going to make our retailing abilities a nightmare.”

Jack Tretton, President and CEO of Sony Computer Entertainment America, hopes that the SCOTUS ruling will put an end to the drama, stating,, “I think the Supreme Court is looking at it to potentially see if there’s something to it or to put an end to it once and for all.”

8 comments | Read more

ECA Prez on Schwarzenegger vs. EMA

June 28, 2010 -

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:

5 comments | Read more

ESA Chief on SCOTUS Case: Confident, Yet Humble

June 16, 2010 -

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”

ECA Encourages Gamers to Weigh in on Schwarzenegger v. EMA

May 12, 2010 -

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:

Yee Backs Kagan

May 11, 2010 -

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.

16 comments

Yee: I Would Never Seek a Ban of Ultra-Violent Games

May 3, 2010 -

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.

SCOTUS Decision Focus of Public Radio Discussion

April 28, 2010 -

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:

Yee on SCOTUS Decision

April 27, 2010 -

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:

28 comments | Read more

Breaking: SCOTUS Will Review Schwarzenegger v. EMA (Update 3)

April 26, 2010 -

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.

48 comments | Read more

EMA v. Schwarzenegger Back on SCOTUS Radar

April 21, 2010 -

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.

SCOTUS Rules on Case that Could Lead to EMA v. Schwarzenegger Decision

April 20, 2010 -

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.”

14 comments | Read more

 
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