ESA and EMA File SCOTUS Brief

September 10, 2010 -

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.!

 

Comments

Re: ESA and EMA File SCOTUS Brief

I wish only that the brief had cited research more widely.  They cite Ferguson a lot, but that could make the science battle look like a Ferguson/Anderson battle, when in fact there are many other research reports which find no link between violent games and youth violence.  It would have been better to vary up the citations a bit (citing Dmitri Williams, Cheryl Olson, John Sherry, John Colwell, Wolfgang Bosch and others perhaps).

Aside from that I do think it is very well done.

Re: ESA and EMA File SCOTUS Brief

The supreme court is getting tired of the Violence issue althoughgeter and took this up just to show That states(in addition to feds) cannot Regulate it, period

In addition The Guy that is Defended the videogame law in question has also testifed in favor of anti-pet laws, Heres a link even tough it's dated

http://petdefense.wordpress.com/2010/04/26/violent-video-ca-law-to-supre...

 

Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights

America has just became its own version of the Jerry Springer Show after a bizarre moment in Florida involving a carnival worker.

Re: ESA and EMA File SCOTUS Brief

I sincerely hope you and the linked blogger are right.

So much has been made of the Court's decision to grant a writ here, and it basically comes down to whether you see the glass as half-full or half-empty.

The optimists tend to think that this is an attempt to shut down the wave of cannon-fodder legislation and lawsuits, and I want to believe that this is the case. 

The pessimists tend to think that with such a huge stack of existing case law, the only reason that the Court needs to add their two cents would be if they were going to take the "Citizens United" activist-court approach and strike down all the case law, and I'm all too afraid that this will happen.

Re: ESA and EMA File SCOTUS Brief

Amazing, a SCOTUS amicus that didn't result in a cure for insomnia...

Seriously though, good luck and Godspeed, Counsels...

Re: ESA and EMA File SCOTUS Brief

GP at its best.  Thanks for keeping us informed, guys.

Re: ESA and EMA File SCOTUS Brief

Just finished reading through the whole thing.  Well crafted argument and full of precedent.  I especially like the part where they talk about how crime  novels, movies and comic books have gone through the same thing by quoting their respective arguments in favor of suppression... like for movies...

"[T]he vibrant, vivid, graphic portrayal in a motion picture has an impact that the lecturing voice of a speech, the cold type of the written page, the still picture in a magazine does not. Add to that the setting in which the movie is viewed – the darkened theatre, the relaxed receptive mood, the complete concentration on the presentation, the company of a sizable or even vast audience, all simultaneously silently focusing on the screen. Add also the vast numbers which the motion pictures reach . . . made up of men and women together, of teen age boys and girls together, of adolescent boys and girls together, and of children." - Brief of Appellee at 41, Joseph Burstyn, Inc. v.

Which is pretty much exactly the same as the "it's worse because it's interactive" argument.

Is there a version of the California brief somewhere?

 

 

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: ESA and EMA File SCOTUS Brief

i've long been of the belief that 'passive' movies actually are more influential than 'interactive' video games. As i see it, a piece of media's effect on you is likely proportional to how immersed you are in the media... afterall the more immersed you are the more focused you are. When watching movies in a darken theater I can often feel myself get so sucked into the film that i loose focus on everything else to the point that i'm not even thinking about where I am or what i'm doing; the movie is my whole world... Characters in the films may be pure fiction but they can make me cry because of how engrossed i am in the film (why do I treat fictional characters like they are real people? its because for the moment they feel real enough). I never experience that same level of immersion with video games... The interactive nature of the game itself is a constant reminder that I'm still in my room playing a game. I've played my share of games, but the best games never seem to immerse me as much as the best movies can.

I think I recall somekind of BBC study that suggested similiar conclusions

Re: ESA and EMA File SCOTUS Brief

And at the turn of the 20th century, the Sunday comics page was considered more corruptive than the rest of the newspaper because it was in color.

And on the Lord's Day!

Re: ESA and EMA File SCOTUS Brief

13 year old: "Hello do you have Super Mario Galaxy 2"

Clerk: "Do you have ID showing your of adult age to buy this product, or a parental guardian to confirm that you are allowed to play this game?"

13 year old: "What are yout talking about its Mario?"

Clerk: "Sorry kid its the law."

 

That would be scary.

 
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