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Supreme Court That Misunderstood Texts, Email to Take on Video Game Debate

supreme court

The U.S. Supreme Court is taking on the constitutionality of a proposed California law to ban the sale of video games to minors. The same Supreme Court where Chief Justice John Roberts asked the difference between email and a pager, and where Justice Antonin Scalia asked if "spicy little" texts could be printed out and sent in hard copy to buddies.

The gaming industry already polices the sale of mature video games via the ratings of the non-profit Entertainment Software Ratings Board (ESRB), which also levees fines on stores that are caught breaking the rules. That wasn't enough for California Governor Arnold Schwarzenegger. The case to legalize a stricter law (Schwarzenegger, Gov. of CA v. Entertainment Merchants Association, argument 08-1448) will be scheduled for the highest court's next session, which begins in October.

Game publishers are no strangers to the courtroom. The Entertainment Software Association (ESA) has successfully struck down similar laws in the past—but this is the first time a case has reached the high court. Should home entertainment be legislated? Is video gaming a first amendment right? How will the industry respond when the justices hear oral arguments later this year? We polled publishers and analysts to find out.

Jeff Brown - VP of public affairs, game maker Electronic Arts:

"This is another sign that gamers need to wake up and get organized to protect their rights. Censorship and content restriction are a very real threat to video games. Any gamer who has not registered with the ESA's Video Gamer Voter Network loses the right to complain when the government starts taking games over the market."

"One of the reason why we always get clobbered in state houses because there really isn't a constituency of people that care about games. So when the vote comes to the floor, it is an easy vote to vote against games, because there's nobody out there who is really going to get mad at you for restricting games if you're a legislator. We need to register a lot of people for the VGVN, if there is a well-demonstrated constituency of people who care about their rights as gamers—just like book readers or people who love movies or theatre—it protects the content and protects us from censorship."

Michael Pachter - Research Analyst, Wedbush Morgan:

"When I last looked at the law, it was pretty broad. It said any game that depicted any member of law enforcement shot at was considered to violent for minors to purchase. What if you are playing the cop? How do you have a game where you are chasing robbers and they don't shoot back? The reason it was struck down in California was that is was overbroad and that they didn't prove that even being a police man, it was harmful for minors to see that. You see that on television all the time. And you can have a PG-rated movie where a cop gets shot at."

"The problem is that the Entertainment Software Ratings Board already rates games and if they have uber-violence they are rated as M (Mature). A good example is Fallout 3; there is no sex at all, it is only rated M for violence. And it is an M-rated game which means you don't sell it someone under 17. But for California's legislature to decide that, 'We're going to define what is inappropriate for kids.' That's why this is a controversy. I don't think most people want their 9-year-olds to play super violent games, but I think the state defining was is appropriate or inappropriate is overly intrusive and a strain on free speech. If the ESRB rates a game M, I don't think anybody in the video game industry has a problem if a legislature says M rated games shouldn't be sold to minors. They believe in that, that's why they rated it mature in the first place. But then for the legislature to say, 'Well you have a T (Teen) rated game,'—which is the equivalent of a PG movie—'but we don't think it's good enough; We the California legislature decides what is M.' That is just wrong. You can't do that."

"Legislatures don't make laws to protect people; they make laws to get elected. It is a politically astute move to tell voters, 'We are making sure we are protecting your children.' There is nothing wrong with what they are trying to do, they are just doing it in the wrong way."

Michael D. Gallagher - CEO, Entertainment Software Association:

"Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional. Research shows that the public agrees, video games should be provided the same protections as books, movies and music.

"As the Court recognized last week in the U.S. v. Stevens case, the First Amendment protects all speech other than just a few 'historic and traditional categories' that are 'well-defined and narrowly limited.' We are hopeful that the Court will reject California's invitation to break from these settled principles by treating depictions of violence, especially those in creative works, as unprotected by the First Amendment.

"A poll recently conducted by KRC Research found that 78 percent believe video games should be afforded First Amendment protection. We look forward to presenting our arguments in the Supreme Court of the United States and vigorously defending the works of our industry's creators, storytellers and innovators."

I would like to make a suggestion, if it would please the court: pick up a controller and play some games, to understand them better than you understood texting and email.

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