CEA, EFF, Others Support Game Industry, Filing Supreme Court Briefs

CEA, the Electronic Frontier Foundation (EFF) and the Progress & Freedom Foundation (PFF) were among 182 groups and individuals who filed amicus briefs Friday at the U.S. Supreme Court supporting the game industry’s First Amendment position in Schwarzenegger v. Entertainment Merchants Association. The case centers on a 2005 California law banning the rental or sale of M-rated games to minors. The 9th U.S. Circuit Court of Appeals held the law unconstitutional, and the friend-of the-court briefs asked the high court to uphold the decision.

A ruling in favor of California “could have a significant impact in the online environment,” including gaming, said a coalition of CEA and five other groups including the Digital Liberty Project of Americans for Tax Reform. An age-based restriction on violent games “would be highly problematic in the online world because of the inability to reliably determine or verify the ages of online users,” the coalition said. The Supreme Court “should be very cautious about going down a path that would lead to later practical and constitutional problems in the online world,” it said. “The least restrictive means of protecting minors from unwanted content” online is the “promotion of user empowerment tools” allowing “parents to control what content is available to their children,” the coalition said. The same kind of tools would be an effective way to prevent kids from seeing inappropriate game content offline, in packaged games, it said. All three home consoles have tools that allow parents to block content from their children, it said. The Supreme Court “should not create a new category of content outside of the First Amendment’s protection” by upholding the state law against the game industry, it said.

"Videogames are speech fully protected by the First Amendment, and both the ‘violence’ and ‘interactivity’ feared by California are integral, expressive aspects of books, plays and movies, as well as videogames,” EFF and PFF said in a joint filing. Therefore, they said, “every state ‘violent’ videogame law has … failed strict scrutiny.” The appeals court opinion was “wholly consistent with the considered judgment of numerous courts,” EFF and PFF said. The game industry has an effective rating system that’s “highly descriptive, widely recognized, and extensively utilized,” they said. “Third-party pressure, ratings and advice supplement parental control technologies” on game consoles and the Entertainment Software Rating Board rating system, they said. Self-regulation and deceptive advertising laws “already effectively prevent circumvention” of the ESRB rating system, they said, and California “has not established a compelling government interest in restricting the sale of videogames to minors."

Similar opinions were expressed by others who filed briefs supporting the game industry, including a coalition of the MPAA and seven other movie, TV and radio industry groups that teamed up with LucasFilm. The alliance said California’s effort called to mind efforts to censor the movie industry over the years. The movie industry’s rating system was “a model” for the videogame ratings and other entertainment industry rating systems, the coalition said. Although the California law pertains specifically to interactive games, the coalition warned of a “potential chilling effect on the motion picture industry” from a ruling in favor of California.

The Academy of Interactive Arts and Sciences (AIAS) and the International Game Developers Association (IGDA), in a joint filing, compared the violence in Take-Two Interactive’s recent M-rated game release Red Dead Redemption to that in Oedipus Rex, which they said “features patricide, mutilation, and incest.” They also compared some of the game’s story elements and visual images to movie Westerns including The Wild Bunch. The violence in the game “utterly pales” in comparison to the violence in Cormac McCarthy’s novel Blood Meridian, they said. Despite the novel’s “disturbing nature, however, it may be purchased by minors in nearly any bookstore and has assuredly been read by thousands, perhaps millions, of minors around the world,” AIAS and IGDA said. California “could not -- and presumably would not want to -- pass a law banning the sale of Blood Meridian to minors in California,” so the government’s attempt to do that to Red Dead Redemption “makes no sense,” they said.

Activision Blizzard and id Software each filed a brief in behalf of the game industry, and so did Microsoft. Other groups filing briefs included the American Civil Liberties Union and the Consumer Electronics Retailer Coalition. The retailer coalition, in alliance with two other retail groups, said laws such as the California statute are “based on vague, subjective, localized standards” that “do no comport with the realities of national retail businesses.” As a result, such laws, “would threaten commerce on a national level."

The amicus briefs were filed a week after the Entertainment Software Association, a party challenging the state law, filed a Supreme Court brief saying the statute violates the First Amendment (CED Sept 13 p8). The court agreed to hear the case early this year. Oral argument is scheduled Nov. 2.

Friday was the deadline for amicus briefs to be filed on behalf of the game industry. In July, California Attorney General Jerry Brown (D), a candidate for governor, submitted to the Supreme Court the state’s written argument and State Senator Leland Yee, D-San Francisco, joined the California Psychological Association and the American Academy of Pediatrics, California, in submitting a friend of the court brief (CED July 21 p8). Connecticut, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Texas, and Virginia also submitted an amicus brief in support of California’s law.