In what could be the most important legal decision the games industry has faced yet, today the Supreme Court ruled on the Brown vs. Entertainment Merchants Association case, ultimately striking down the California law by a vote of 7 to 2. The entire opinion can be read here.
The law was signed back in 2005 by Governor Schwarzenegger and banned the sale of violent video games to anyone under 18, required a warning sticker on the package, and would have fined retailers up to $1,000 for each infraction. The law had already been struck down but was appealed.
The majority opinion, written by Justice Scalia stated:
"Like the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, 'esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority'."
Justices Thomas and Breyer, in dissent, wrote the following:
"The practices and beliefs of the founding generation establish that 'the freedom of speech,' as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings."
The Entertainment Consumers Association (ECA), which rallied gamers against the violent games law, was naturally very happy with the outcome. "So many people took action signing the gamer petition and directly filing briefs with the Court. The decision has been a long time coming, and we're so pleased by today's news," the organization said. "We're sure this isn't the end of the fight. One decision doesn't mean that we won't see elected officials attempted to test these new parameters. You better believe the ECA will continue to fight for the rights of the entertainment consumers and we hope you'll stand with us and add your voice. But today, we can hold our heads up a little higher knowing that we won this fight. We'll be following up later in greater detail once we've read the complete decision."
Update: Bo Andersen, CEO of Entertainment Merchants Association, just released this statement:
“EMA welcomes today’s Supreme Court ruling that let stand the Court of Appeals’ decision finding the California video game restriction law to be unconstitutional. We are gratified that our position that the law violates the First Amendment’s guarantee of freedom of expression has been vindicated and there now can be no argument whether video games are entitled to the same protection as books, movies, music, and other expressive entertainment.
“While we appreciate this victory in the court of law, it does not obviate the concern that parents may have about the appropriateness of some video games for their children. But, as the Court noted, the ESRB rating system for video games ‘does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home.’”
“Video game retailers understand that they have a responsibility to help parents make informed decisions about the video games they buy for their children and to ensure that children are not able to purchase Mature-rated games without their parents’ permission. EMA-member retailers have a high level of ratings education and enforcement and, in fact, in an undercover shopper investigation released in April of this year, the Federal Trade Commission found that video game retailers turned down minors that attempted to purchase Mature-rated video games 87% of the time. Video game retailers remain committed to maintaining what the Federal Trade Commission termed their “vigorous” enforcement of the video game ratings.
“In addition, EMA and other entertainment retailing trade associations have declared this June to be Entertainment Ratings & Labeling Awareness Month, as we do annually. The purpose of Entertainment Ratings & Labeling Awareness Month is to promote ratings education and enforcement by retailers and increase parental awareness and use of the ratings.”
Update 2: Michael D. Gallagher, president and CEO of the Entertainment Software Association (ESA), said the following in reaction:
“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. 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.
"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. 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.”
Update 3: Entertainment Software Rating Board (ESRB) president Patricia Vance has also issued a statement:
“ESRB welcomes the Supreme Court’s decision in this case, especially given its validation of the ESRB rating system as an effective and reliable tool that parents use to decide which video games are appropriate for their children and family. Today’s decision acknowledges the value and effectiveness of the ESRB rating system, the Federal Trade Commission’s positive assessment of our self-regulatory regime, and the latest research showing that game retailers overwhelmingly enforce their voluntary store policies regarding the sale of Mature-rated games. In striking this law the Court has made clear that the video game industry effectively empowers parents to be the ones to decide which games are right for their children.
“The most constructive means of ensuring that children play age-appropriate video games is to educate parents about the tools at their disposal, including ESRB’s two-part rating system (age categories and content descriptors) and rating summaries available at ESRB.org and via a free mobile app. We remain eager to work with government officials, legislators, parents groups and any others who wish to participate in or otherwise support these constructive efforts, which achieve the intended goal without infringing Constitutional rights.”
