A Closer Look at the Parallels Between US v. Stevens and EMA v. Schwarzenegger

This article is to supplement GP’s coverage of US v. Stevens and its implications for the game industry (also addressed on GamesLaw). I will elaborate on why the Supreme Court refuses to analogize depictions of the unlawful killing, maiming, wounding, etc. of animals to child pornography and why it probably will not liken video game violence to it either in the pending case EMA v. Schwarzenegger. Also, the somewhat less-discussed basis for the Stevens decision: overbreadth of the statute and why the EMA law will also likely be found overbroad and stricken. Read the rest of this entry »

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Pending Supreme Court Case US v. Stevens Has Implications for the Game Industry

Most attempts by state legislatures to censor the game industry involve statutes which prohibit the distribution of ”violent video games” to minors. However, these statutes have invariably been stricken down by federal courts because they sought to restrict distribution of games, the contents of which fell into a category of speech (violence) that is protected under the First Amendment and the respective states could not show the requisite danger of imminent lawless action that the First Amendment requires in  order to restrict speech that is protected(1).  Very recently in VSDA v. Schwarzenegger, the Ninth Circuit struck down one such statute for that reason(2). Through this and other examples, we see that courts are loathe to create new categories of unprotected speech, or to expand the categories that are already unprotected(3). On October 6th, the Supreme Court heard oral argument in US v. Stevens, which challenges the Constitutional validity of a federal statute that prohibits the creation, sale, and possession of depictions animal cruelty. Due to the insight into the new Court roster’s attitudes on First Amendment issues that Stevens will offer, we are watching closely.  Hit the jump for an in-depth analysis. Read the rest of this entry »

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California appeals VSDA v. Schwarzenegger to SCOTUS

The State of California has appealed their loss in the VSDA case to the U.S. Supreme Court, asking for a grant of writ of certiorari on the following questions:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

(see pet. for cert. here in .pdf format)

In response, the EMA (formerly the VSDA) had this press release:

Statement of Sean Bersell, Vice President – Public Affairs, Entertainment Merchants Association (formerly Video Software Dealers Association), on the decision of the state of California to ask for U.S. Supreme Court review of the court ruling finding California’s video game restriction law unconstitutional:

“It boggles the mind that, on a day when the state of California finds itself in the worst fiscal crisis it has ever faced and is considering massive layoffs of teachers and cuts to public services, the state would choose to waste tens of thousands of dollars on pursuing this frivolous appeal.

“This law was found by two lower courts, relying on long-established legal precedents, to be unconstitutional as an infringement of the First Amendment. There have been eight similar laws enacted around the nation this decade and every single one has been found unconstitutional on similar grounds. There is no reason to expect a different outcome in the Supreme Court.

“So far, this case has cost the state of California approximately $400,000 just in legal fees and court costs that it has had to pay the plaintiffs. This doesn’t even include the state’s legal fees and costs. And if this appeal is unsuccessful, as it will be in all likelihood, the state will owe the plaintiffs even more in legal fees and court costs.

“The taxpayers of California should demand that their elected officials stop wasting precious tax dollars on this quixotic quest.”

For background on the VSDA v. Schwarzenegger case, please see http://www.entmerch.org/schwarzenneger.html.

I’m putting my money on the court either denying cert, or granting for a summary decision. Neither of the questions are substantial points of law that SCOTUS should need to make a decision on; they’re both well settled in VSDA/EMA’s favor, under SCOTUS precedent. Furthermore, there are to my knowledge no circuit splits on the questions that would prompt SCOTUS to make a ruling. Finally, even if they did, the second question in the petition is partially irrelevant to the outcome because even if no direct causal link was required, the law was facially unable to meet strict scrutiny anyway. For these reasons, I’m willing to bet that the court will either deny cert, or summarily uphold the 9th Circuit’s decision. We’ll keep you updated as we hear more.

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GamesLaw Video Footage: Legal Issues in Contemporary Games

At long last, we’ve found video footage from my panel at PAX 08, entitled “Legal Issues in Contemporary Games”. Thanks to Youtube user pipedreamer for getting it uploaded!

The video is split into 4 parts, the first of which can be found here. Note that the 2nd part is mislabeled “part 1″ as well, but differs in that it has Tom Buscaglia in the first frame (the actual part 1 has myself and Ross Dannenberg in the first frame). Parts 3 and 4 are labeled as normal.

Link: Part 1

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Press Release on VSDA v. Schwarzenegger

The ESA and EMA have released the following joint press release on the recent Ninth Circuit Decision (please also see our own coverage of the decision).

FOR IMMEDIATE RELEASE

February 20, 2009

CONTACTS:             Dan Hewitt, 202.223.2400, dhewitt@theESA.com
Sean Bersell, 818.728,8663, sbersell@entmerch.org

Video Game Publishers and Retailers Respond to Court Ruling Overturning California Video Game Restriction Law

U.S. Ninth Circuit Sides with Groups in Challenge to 2005 Law

ENCINO, CA and WASHINGTON, DC – February 20, 2009 – Following are statements of Bo Andersen, President and CEO of the Entertainment Merchants Association (EMA) and Michael D. Gallagher, President and CEO of the Entertainment Software Association (ESA), in response to today’s ruling by the U.S. Court of Appeals in the case of Video Software Dealers Association v. Schwarzenegger (#07-16620), which held a 2005 video game restriction law enacted by the state of California to be an unconstitutional violation of the First Amendment’s guarantee of freedom of speech.

Statement of Bo Andersen: “We are extremely gratified by the court’s rejection of video game censorship by the state of California. The ruling vindicates what we have said since the bill that became this law was introduced: ratings education, retailer ratings enforcement, and control of game play by parents are the appropriate responses to concerns about video game content.

“Retailers are committed to assisting parents in assuring that children do not purchase games that are not appropriate for their age. Independent surveys show that retailers are doing a very good job in this area, with an 80% enforcement rate, and retailers will continue to work to increase enforcement rates even further. The court has correctly noted that the state cannot simply dismiss these efforts.

“I understand that some government officials will push for the state to ask the U.S. Supreme Court to review this decision. The state should not acquiesce in this demand, particularly in light of its budget difficulties. The state has already wasted too many tax dollars, at least $283,000 at last count, on this ill-advised, and ultimately doomed, attempt at state-sponsored nannyism.”

Statement of Michael D. Gallagher: “This is a win for California’s citizens. This is a clear signal that in California and across the country, the reckless pursuit of anti-video game legislation like this is an exercise in wasting taxpayer money, government time, and state resources. In the end, common sense prevailed with the court determining that, after exhaustive review, video games do not cause psychological or neurological harm to minors. And, that the ESRB rating system, educational campaigns and parental controls are the best tools for parents to help control what their children play.”

Background:

In 2005, the state of California enacted a law to restrict the sale or rental to anyone under the age of 18 of computer and video games that are classified as “violent video games” if the depictions of violence in the games are offensive to the community or if the violence depicted is committed in an “especially heinous, cruel, or depraved” manner. The law was scheduled to go into effect on January 1, 2006.

Prior to the law taking effect, the Video Software Dealers Association (now the Entertainment Merchants Association) and the Entertainment Software Association filed suit against California Governor Arnold Schwarzenegger and others to prevent its enforcement. The plaintiffs asserted that the law’s restriction on the sale or rental of certain violent video games violates their rights under the First and Fourteenth Amendments to the U.S. Constitution to freedom of expression and equal protection of the laws and is unconstitutionally vague.

In August 2007, a federal district court judge granted summary judgment in favor of the plaintiffs and permanently barred enforcement of California’s video game law. In doing so, the judge ruled that video games are protected by the First Amendment, the law is unduly restrictive and uses overly broad definitions, and the state failed to show that the limitations on violent video games would actually protect children.

The state of California appealed the summary judgment ruling to the U.S. Court of Appeals for the Ninth Circuit. The three-judge panel of the Ninth Circuit heard oral arguments on the appeal on October 29, 2008 at a special sitting at McGeorge School of Law in Sacramento, CA.

Additional information and links to case documents are at:
http://www.entmerch.org/schwarzenneger.html

The Entertainment Merchants Association is the not-for-profit international trade association dedicated to advancing the interests of the $33 billion home entertainment industry. EMA represents approximately 600 companies throughout the United States, Canada, and other nations. Its members operate approximately 20,000 retail outlets in the U.S. that sell and/or rent DVDs and computer and console video games and digitally distributed versions of these products. Membership comprises the full spectrum of retailers (from single-store specialists to multi-line mass merchants, and both brick and mortar and online stores), distributors, the home video divisions of major and independent motion picture studios, and other related businesses that constitute and support the home entertainment industry. EMA was established in April 2006 through the merger of the Video Software Dealers Association (VSDA) and the Interactive Entertainment Merchants Association (IEMA).

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 Media & Business Summit, 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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As Predicted, Ninth Circuit Court Of Appeals Upholds Permanent Injunction Of CA Sales Law

Today, the Ninth Circuit affirmed a federal District Court’s ruling that California’s statute restricting the sale of violent video games to minors was unconstitutional. Read the rest of this entry »

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GamePolitics Posts Recording of VSDA v. Schwarzenegger Oral Arguments

If you haven’t checked it out already, I suggest jumping over to GamePolitics for quite an entertaining listen. (Thanks, Dennis.)

Having listened to it a few times, I have concluded that other than the judges’ wonderful discourse, there isn’t much new material for me to go over in an academic sense. I’ve already covered much of the legal analysis that the attorneys brought up in the recording, but I’m happy to answer any questions you may have about the cases, constitutional law concepts, background, or anything else. Please comment if you have questions or…well, comments.

Oh, and here’s my Law Practice Tip of the Day. When in doubt, use the slippery slope argument.

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VSDA v. Schwarzenegger Likely To Go All The Way Up

GamePolitics reports that the parties in the California lawsuit over a statute banning the sale of violent video games to minors may have finally agreed on something….the determination of the loser to appeal to the Supreme Court. Read the rest of this entry »

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Schwarzenegger says “I’LL BE BACK…in court to appeal the injunction on my video game sales law”. Part 3

Introduction

This is the third installment of my series on California’s statute which bars the sale of violent video games to minors. In Parts 1 and 2, I gave background information on the substance and procedure that led Justice Whyte of the US District Court for the Norther District of California, San Jose Division to strike it down.  As you may know, the federal Court of Appeals for the Ninth Circuit will hear the state’s appeal of the permanent injunction of the law in question this Wednesday. Therefore, I will be offering my prediction of the outcome based on judicial precedent. Read the rest of this entry »

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Schwarzenegger says “I’LL BE BACK…in court to appeal the injunction on my video game sales law”. Part 2

Introduction

This is (the long-delayed) Part 2 of my analysis and prediction of the outcome of Schwarzenegger’s appeal to get his video game sales restriction law reinstated. Here, I will give more background information on the proceedings in which a California Federal District Court struck down the statute. My mission for this series of articles is to give readers an understanding of exactly how a court finds a speech-restricting law unconstitutional. As such, I will start with a brief tutorial on the relevant judicial process, followed by application to this specific case. Read the rest of this entry »

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