The Entertainment Software Association (ESA) and the Entertainment Merchants Association have filed a joint brief asking the United States Supreme Court to find unconstitutional a 2005 California law restricting the sale and rental of videogames.
The groups said in their 78-page brief that the 2005 California statute, which would deny First Amendment protections to games that California decides are "offensively violent”, is unlawful under a long line of Supreme Court precedents.
The ESA pointed out that lower courts have repeatedly ruled that there is no credible evidence that games cause harm to minors, which is the stated reason behind California’s law. In overturning the statute, the United States Court of Appeals for the Ninth Circuit declared that the state "has not produced substantial evidence…that violent video games cause psychological or neurological harm to minors," and further noted that there were "glaring empirical gaps" in the research on which California relied.
Despite being deemed unconstitutional at federal court level, the Supreme Court said in April that it will review the statute, which was recently backed by eleven US states. The case before the high court is Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association. Oral arguments will begin on November 2, 2010, and the Supreme Court’s verdict will determine whether individual states can impose sales restrictions on games that could see violent titles classed as X-rated entertainment, a potential outcome that’s troubling major games industry executives.
"The California statute is unnecessary, unwarranted, and unconstitutional," said ESA CEO Michael Gallagher. “Our industry is already partnering with parents and fulfilling its responsibility by supporting the leading work of the Entertainment Software Rating Board, the most robust entertainment rating system available. It would threaten freedom of expression not just for videogames, but for all art forms. It would also tie up our courts in endless debates about what constitutes acceptable creative expression in our media. It protects no one and assaults the constitutional rights of artists and storytellers everywhere.”
"Because the California law would impose a content-based restriction on free speech, it is subject to the exacting ‘strict scrutiny’ standard under the Constitution," said Kenneth L. Doroshow, the ESA’s general counsel. "The government must show that the law serves a compelling state interest, that the law is necessary to serve that interest, and that the law is the least restrictive means of achieving it. The California law fails every aspect of this test, as the lower courts found."