The Entertainment Software Association (ESA) recently welcomed the U.S. Supreme Court’s landmark ruling that underscored constitutional protections for video games, developers, and video game industry artists. At issue was a 2005 California statute restricting the sale and rental of computer and video games. The ESA, the lead party in the case Brown v. Entertainment Merchants Association/Entertainment Software Association, argued that the statute presented unconstitutional limitations on expression, and the U.S. Supreme Court agreed, holding the California law unconstitutional under the First Amendment.
“This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere. Today, the Supreme Court affirmed what we have always known – that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music,” said Michael D. Gallagher, president and CEO of the ESA, which represents the U.S. computer and video game industry. “The Court declared forcefully that content-based restrictions on games are unconstitutional; and that parents, not government bureaucrats, have the right to decide what is appropriate for their children.”
In its 7-2 decision, the Supreme Court cited many of the same reasons cited by lower courts when striking down this and similar statutes: that video games contain expression that is protected as much as the best of literature; that California had not shown that video games were harmful to minors; that less restrictive means of achieving the state’s intended goal of protecting children from violent content exist, including the Entertainment Software Rating Board rating system; and that parents rather than the government should have primary responsibility for what games their children play.
Because the California statute attempted to restrict free speech on the basis of content, the state had to prove a compelling government interest for the law and also that California’s proposed remedy was the narrowest possible way of furthering that interest. The U.S. Supreme Court said California failed in both respects.
In the decision, Justice Scalia, writing for the majority, stated with regard to the validity of the scientific evidence put forth, “The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, ‘[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.’”
Of the “least restrictive” requirement, the majority opinion stated, “California also cannot show that the Act’s restrictions meet the alleged substantial need of parents who wish to restrict their children’s access to violent videos. The video-game industry’s voluntary rating system already accomplishes that to a large extent.”
In closing, Justice Scalia, again for the majority, writes, “California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors…Even where the protection of children is the object, the constitutional limits on governmental action apply.”
“We are very gratified that our arguments – and those of over 180 other groups and individuals from across the ideological spectrum – were heard in this case,” said Gallagher. “The Court has now definitively held that legislative attempts to restrict video game content will be struck down.
“It is time for elected officials to stop wasting time and public funds seeking unconstitutional restrictions on video games. Instead, we invite them to join with us to raise awareness and use of the highly effective tools that already exist to help that parents choose games suitable for their children.
“Congratulations are due to our legal team, including Paul Smith of Jenner & Block who did a superb job in oral arguments before the Court. Ken Doroshow, the ESA’s former general counsel and lead architect of our industry’s legal strategy, also deserves an enormous amount of credit for spearheading our winning approach.”
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.