ESA Brief Rips California Law As Threat To Free Expression

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Blasting a California statute regulating sales of very violent video games as a threat to the freedom of creative expression, the Entertainment Software Association today asked the U.S. Supreme Court to strike down the law, once and for all.


The law, which sets penalties for selling or renting titles with especially violent content to minors, "threaten[s] freedom of expression not just for video games, but for all art forms," ESA president Michael Gallagher said in a statement accompanying the brief filed today with the high court. "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."

The ESA is the leading group representing the video games industry in the United States. It also established the Entertainment Software Ratings Board in 1994, responsible for rating and classifying video games according to age appropriateness.

The ESA's brief argues that California's law fails to meet the "strict scrutiny" precedent the Court established in reviewing "content-based restriction" of free-speech. Namely, the government must show that such a law serves a "compelling state interest," the law is necessary to serve the interest, and it is the least restrictive means of doing so. A federal court and federal appeals court have found the law falls short.

The ESA's brief points to the ESRB as a less restrictive means of ensuring that violent or mature content stays out of minors' hands. It also says that California knows its law can't pass the "strict scrutiny" test, so it is appealing for a new category of expression that isn't Constitutionally protected, one based on violent content.

That appeal is unconstitutionally vague with ramifications far beyond its own jurisidiction, the ESA argues in its brief. They have "no stopping point because so many expressive works contain depictions of violence ... that could be deemed offensive to minors."


Oral arguments in Schwarzenegger v. Entertainment Merchants Association (a California trade group unrelated to the ESA), will be heard Nov. 2. To read California's argument defending its law, see this examination Kotaku published in June.



I'm sorry, I just don't see the correlation here between free speech and the prohibition of unsuitable material to minors. No freedom of speech is being taken away here. It seems pretty straight forward, voilent games are not to be sold to minors. A quote from the other article:

California Civil Code sections 1746-1746.5 (the Act) prohibit the sale or rental of "violent video games" to minors under 18. The Act defines a "violent video game" as one that depicts "killing, maiming, dismembering, or sexually assaulting an image of a human being" in a manner that meets all of the following requirements: (1) A reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors; (2) it is patently offensive to prevailing standards in the community as to what is suitable for minors, and; (3) it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors. The Act does not prohibit a minor's parent or guardian from purchasing or renting such games for the minor. Pet. App. 96a.

I can see the ESA's reasoning for not backing the law. Being made up of industry representatives, they're lobbying for the benefit of the industry. Don't be mistaken that they're champions of the consumer. If children are able to buy games that are unsuitable for them, and let's be honest here, the type of game laid out by the law would be unsuitable for them, then the industry is making some money, however insignificant, that they might otherwise not make.

This law puts the responsibility in the hands of parents, they have the decision to buy or not to buy a game for their children, that's where it should be.