Guest Editorial: A First Amendment Call to ArmsS

Video gamers across the country are anxiously awaiting November 2 when the U.S. Supreme Court will hear oral arguments in a case close to our hearts.

The case, Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association, involves a 2005 California law that seeks to restrict the sale and rental to minors of computer and video games that are determined by the state to contain "unacceptable" violence.

As two lower courts in this specific case and a total of 12 lower courts in similar cases concluded, computer and video games are First Amendment-protected free speech, entitled to the same protections as books, movies and other forms of artistic expression. Therefore, any attempt to impose a content-based restriction on games must demonstrate a compelling state interest that would be addressed by this restriction and apply the least restrictive means of achieving the state's intended goal.

A compelling interest does not exist. California tried to argue that video games cause violent behavior, but the argument was shot down faster than Master Chief takes down members of the Covenant. In fact, no scientific evidence exists to link video game violence to real world violence. This reality was acknowledged by the Ninth Circuit Federal Court of Appeals in its decision to strike down the California law and by 82 social scientists who filed a legal brief urging the Supreme Court to reject California's statute.

Even if there was a connection between virtual and real-world violence, the California law is unconstitutional because there is a less restrictive – and effective – way to prevent minors from buying or renting games that are not intended for them. The Entertainment Software Rating Board (ESRB) system is well known, highly praised and widely used. Retailers support it and parents and opinion leaders consider it the best entertainment rating system in the country. In addition to the ESRB ratings, parental controls available on all new game consoles allow parents block games they do not want their children to play. Indeed, these voluntary tools are two of the reasons lower courts declared California's law unconstitutional.

Beyond the law's basic constitutional infirmities, we are also concerned about the consequences that would follow if the Supreme Court validates California's statute. The law's vague definitions of violence will create uncertainly about what would, and would not be, legal. The uncertainty will limit the creativity of video game creators and the willingness of retailers to carry games, thereby affecting the unquestioned rights of adults to buy or rent whatever they want.

Then there is the effect on other entertainment and art forms. Books, movies, music, even general news reporting could be next on the censorship list. They all contain violence. How can you restrict one media and not another? It seems inevitable that consumers of all types of entertainment media will be impacted negatively if this law is upheld.

What at first glance seems to be a case about the First Amendment rights of minors, this case is really about the rights of all Americans to watch, read and hear what they want, even if some find it objectionable.

Last month, the ESA filed with the U.S. Supreme Court a legal brief that strongly defends the rights of gamers, video games, and the artists who work so hard to create these games. We were joined by 182 First Amendment experts, national organizations, non-profits, associations, researchers and social scientists who filed "friend of the court" briefs, echoing and augmenting our arguments against the law.

And the people are rising up as well. Over 250,000 gamers, designers and advocates across the country have recognized the seriousness of this situation and joined the Video Game Voters Network (VGVN) to defend video games and the First Amendment. This grassroots coalition has attracted the attention of renowned comic book creator Stan Lee, who drew on his own experiences with government's attempts to regulate comic books, calling on gamers everywhere to take a stand and join the VGVN.

Following the example set by Stan Lee, I encourage you all to join the VGVN by going to www.vgvn.org. We must stand together now and make it clear to legislators in other states who are thinking about proposing laws similar to California's that these mistaken efforts to circumvent our rights are unconstitutional, unwarranted and unnecessary.

Michael D. Gallagher
President and CEO
Entertainment Software Association