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Brown v. Entertainment Merchants Association

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Schwarzenegger v. EMA
Supreme Court of the United States
Full case nameArnold Schwarzenegger, Governor of the State of California, and Edmund G. Brown, Attorney General of the State of California v. Entertainment Merchants Association and Entertainment Software Association
Docket no.08-1448
Laws applied
U.S. Const. amend. I

Schwarzenegger v. Entertainment Merchants Association is a case pending before the Supreme Court of the United States. The case challenges a California law enacted in 2005 that bans the sale of certain violent video games to children without parental supervision.[1] A decision is expected to be announced in June 2011.

The California law

In 2005, California's Congress passed CA Law AB 1179, created by California State Senator Leland Yee, which banned the sale of violent video games to anyone under age 18 and required clear labeling beyond the existing Entertainment Software Rating Board (ESRB) rating system. The law would have a maximum $1000 fine for each infraction. The definition of "violent video game" used a variation of the Miller test, a three-pronged test used previously by the United States Supreme Court to define when speech is not protected under the First Amendment.[2] The bill was signed into law by Gov. Schwarzenegger in October 2005.[3] The law would have gone into effect in January 2006.[4]

The law was a second attempt by Senator Yee to enact restrictions for video game sales to minors. Yee's background as a child psychologist led him to assert there was a connection between video games and violence and believed that the government had strong interest in restricting video game sales to minors as was already done for pornographic works.[5] In 2004, Yee had drafted a law that would have required mature-rated video games to be stocked separately from other titles. Though the bill ultimately passed as CA Law AB 1793, the bill's language was diluted at its passage, only requiring stores to display the ESRB ratings system and provide information to parents about it.[6]

Background of the Case

Main article: Video Software Dealers Association v. Schwarzenegger

Prior and during the case, parties like the Entertainment Software Association (ESA) sought to overturn similar state laws that placed limits on the sales of violent video games to minors in Michigan[7] and Illinois.[8] The ESA won these cases, with the laws being found unconstitutional and overly restrictive of protected speech. [9][10]These states did not further challenge the court rulings.[11]

The District Court Opinion

Even before the California bill was signed into law, the ESA and the Video Software Dealers Association (VSDA), now known as the Entertainment Merchants Association (EMA), were preparing a lawsuit to overturn the law, fearing that the "violent video game" definition would affect many titles that the ESRB has otherwise labeled appropriate for younger players, and threaten to harm the video game industry.[4] The VSDA filed suit in the United States District Court for the Northern District of California and was later joined by the ESA. The two groups succeeded in obtaining a preliminary injunction in December 2005 to block enforcement of the law during the case; U.S. District Judge Ronald M. Whyte cited in his preliminary decision: "The plaintiffs have shown at least that serious questions are raised concerning the States' ability to restrict minors' First Amendment rights in connection with exposure to violent video games, including the question of whether there is a causal connection between access to such games and psychological or other harm to children."[11] In August 2007, Whyte ultimatedly ruled for the plaintiffs, holding that the law violated the First Amendment, and that there was an insufficient showing of proof that either video games differed from other media or that there was established causality between violent video games and violent behavior.[12]

Schwarzenegger's Appeal

California Governor Arnold Schwarzenegger appealed the ruling in September 2007, stating that he would "vigorously defend this law" and that he and the people of California have "a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions".[13] The Ninth Circuit Court of Appeals affirmed Whyte's decision in 2009.[14]

The Ninth Circuit Appeal

The Ninth Circuit considered the constitutionality of the law; given the timeframe of the law's passing relative to litigation, it was referred to as the "Act" in the court's opinion.

Holdings

The Ninth Circuit affirmed the District Court's Summary Judgment for the VSDA by holding:

  1. The Act is a presumptively invalid content-based restriction on speech, so it is subject to strict scrutiny and not the "variable obscenity" standard from Ginsberg v. New York.[15]
  2. The Act violates rights protected by the First Amendment because the state has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exists a less-restrictive means that would further the State's expressed interest.[16]
  3. The Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information, but compels the carrying of the State's controversial Opinion.[16]

Reasoning

The court first addressed the VSDA's argument that the entire Act should be invalidated based on the defendant's concession on appeal that the definition of "violent video game" in the Act is unconstitutionally broad. However, the statute had a severability clause[17] so the court went through the severability test set forth in Hotel Employees & Rest. Employees Int'l Union v. Davis.[18] The court held that the definition for "violent video game" is grammatically and functionally separable because, as an alternative definition of "violent video game," it can be removed from the Act without affecting the wording or function of the Act's other provisions.[16] Further, the definitions are volitionally separable because those sections were not of critical importance to the passage of the Act and the legislative body would have adopted the Act had it foreseen the partial invalidation of the statute.[19] These definition sections were only included to avoid the possibility that a court would rule the terms unconstitutionally vague; the court found that the legislature would still have enacted the statute without this definition section.[16]

The court next went on to determine what level of scrutiny should be applied in reviewing the Act's prohibitions. The defendants insisted that the "variable obscenity" standard from Ginsberg v. New York should be used.[15] However, the court held that the "variable obscenity" standard does not apply to violence. The Court in Ginsberg was careful to place substantive limits on its holding, and concern in Ginsberg regarded only "sex material", not violence. The court declined to extend the application of the "variable obscenity" standard to violence, so strict scrutiny was applied instead.[16]
In applying the strict scrutiny standard, the court recognized that "content-based regulations are presumptively invalid,"[20] and to survive invalidation, the Act had to fulfill two qualifications:

  1. Restrictions "must be narrowly tailored to promote a compelling Government interest."
  2. "If a less restrictive alternative would serve the Government's purpose, the legislature must be use the alternative."[21]

The court invalidated the statute on both accounts. First, it said they limited the purpose of the Act to the actual harm to the brain of a child playing a violent video game. The state was required to show that "the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."[22] Here, the defendants failed to do so because all of the reports they relied on in making these claims were admittedly flawed.[23][24][25] While the state is allowed to protect minors from actual psychological or neurological harm, it is not permitted to control minors' thoughts. Second, the court held that the defendants did not demonstrate the absence of less restrictive alternative means. In fact, video games already comply with a voluntary rating system that rates video games based on their topics and age appropriateness.[26] This is a clear example of a less restrictive means. The court noted that the least restrictive means is not the same as the most effective means.[16]

The court also evaluated the constitutionality of the Act's labeling provision, which requires that a label be affixed to the front of every package the state deems to be a "violent video game." Generally, "freedom of speech prohibits the government from telling people what they must say."[27] However, the court has upheld compelled commercial speech where it is the inclusion of "purely factual and uncontroversial information" in advertising.[28] However, the labeling requirement of "violent video game" is not factual information. The Act has not clearly and legally provided a way to determine if a video game is violent so the sticker does not convey factual information. Consequently the court found that the Act is unconstitutional.[16]

Supreme Court review

Gov. Schwarzenegger again appealed to the Supreme Court, looking to overturn the Ninth Circuit's ruling, filing a writ of certiorari to the Court in May 2009. The Supreme Court accepted to hear the case.[29] The fact that the Court accepted this case was considered surprising, based on the previous case record for such violent video game laws that were unanimously overturned in other states.[2][30] Analysts believe that because the Court agreed to hear this case, there are unanswered questions between the protection of free speech from the First Amendment, and the legal enforcement of protecting minors from unprotected free speech such as through restrictions on the sales of pornography to minors.[2][31] Just a week prior to the acceptance of the centiorari, in United States v. Stevens the Court overturned another law that sought restrictions on depictions of animal cruelty, which some analysts felt would reflect the Court's position to likely overturn the violent video game law.[30][31]

The Entertainment Consumers Association (ECA) launched an online petition along with their amicus brief to provide the Supreme Court additional information.[32] The Progress & Freedom Foundation and the Electronic Frontier Foundation together submitted an amicus brief citing social research that declared Super Mario Bros. to be a violent video game. It was compared to Mighty Mouse and Road Runner, cartoons that depict a similar form of violence with little negative reaction from the public.[3][33] Video game developers Microsoft and Activision Blizzard supported the ESA effort.[34] Industry associations for musical works, movies, and publishing, including the National Association of Broadcasters, the Motion Picture Association of America, National Cable & Telecommunications Association, and the Future of Music Coalition, also submitted briefs to the court in favor of striking down the law, fearing that should the law found to be constitutional, their industries would also be affected.[35][36] Associations for the protection of civil rights, including the American Civil Liberties Union, the National Coalition Against Censorship, and the National Youth Rights Association, submitted amicus briefs.[34][37]

The State of California was joined by eleven other States, including those that had passed laws later declared unconstitutional; the States, in an amicus brief, stated that they are "vitally interested in protecting the welfare of children and in helping parents raise them" but the District Court's decision restricts their authority to do so.[38] Further supporting the State of California were the American Academy of Pediatrics, the California Psychological Association, Common Sense Media, and the Eagle Forum.[34]

Oral arguments were held on November 2, 2010. To California's attorney, the Justices voiced concern on the distinction between video games and other commercial works such as films and comic books. Justice Antonin Scalia wondered if the law with its vague definition of "violence" could also be applied to Grimm's Fairy Tales.[35] To the ESA and other trade groups, the Justices suggested that California and other states do have precedence to protect minors from certain forms of violence, though under narrower terms than the California law.[35] Justice John G. Roberts Jr. argued that while companies can provide parental filters on such violent games, "any 13-year-old can bypass [them] in about five minutes".[30] Several questions centered on the controversial game Postal 2, where the player can urinate on non-player characters and set them ablaze, among other violent acts.[39] The Justices, in general, agreed that upholding California's law would require a "novel extension of First Amendment principles to expressions concerning violence".[30]

An analysis of the case and Supreme Court hearings by the Duke Journal of Constitutional Law and Public Policy suggests that the Supreme Court will rule in favor of the EMA. The Duke analysis suggests that either the court will rule on the vagueness of the definition of "violence", which would lead to "a narrow ruling with limited applicability"; or the court will rule in the same manner they had in United States v. Stevens, specifically labeling video games as protected free speech, and creating exemptions for violent video games would be impractical.[40]

The Court's decision is expected in June 2011.[35] State legislators in at least two States, Delaware and Illinois, have expressed plans to reintroduce legislation similar to the California law should the Supreme Court decide in favor of the State of California.[41][42]

References

  1. ^ "Schwarzenegger v. EMA". mediacoalition.org. 2010. Retrieved 2010-10-02.
  2. ^ a b c Boyd, S. Gregory (2010-11-01). "Video Game Regulation and the Supreme Court: Schwarzenegger v. Entertainment Merchants Association". Gamasutra. Retrieved 2010-11-01.
  3. ^ a b Hoffman, Gene (September 27, 2010). "How the Wrong Decision in Schwarzenegger v. EMA Could Cripple Video Game Innovation". Xconomy.com. Retrieved 2010-09-27.
  4. ^ a b Thorsen, Tor (2005-10-07). "Schwarzenegger signs game-restriction bill". Gamespot. Retrieved 2010-11-01.
  5. ^ Fritz, Ben (2010-04-10). "Lawmaker defends law banning sale of violent video games to minors". Retrieved 2010-11-02.
  6. ^ Jenkins, David; Carless, Simon (2004-09-22). "Schwarzenegger Signs California Video Games Bill". Gamasutra. Retrieved 2010-11-02.
  7. ^ "Judge rules Michigan video game law is unconstitutional". USA Today. 2006-04-04. Retrieved 2010-11-01.
  8. ^ Broache, Anne (2006-11-26). "Court rejects Illinois video game law". CNet. Retrieved 2010-11-01.
  9. ^ "Judge rules Michigan video game law is unconstitutional". USA Today. 2006-04-04. Retrieved 2010-11-01.
  10. ^ Broache, Anne (2006-11-26). "Court rejects Illinois video game law". CNet. Retrieved 2010-11-01.
  11. ^ a b Fisher, Ken (2005-12-22). "California game law blocked". Ars Technica. Retrieved 2010-11-01.
  12. ^ Video Software Dealers Ass'n, et al. v. Schwarzenegger, et al., 2007 U.S. Dist. LEXIS 57472 (N.D. Cal. 2007).
  13. ^ Dobson, James (2007-08-10). "Schwarzenegger To Appeal California Game Law Ruling". Gamasutra. Retrieved 2010-11-01.
  14. ^ Video Software Dealers Ass'n, et al. v. Schwarzenegger, et al., 556 F.3d 950 (9th Cir. 2008).
  15. ^ a b Ginsberg v. New York, 390 U.S. 629 (1968).
  16. ^ a b c d e f g Video Software Dealers Ass'n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009).
  17. ^ California Civil Code § 1746.5.
  18. ^ Hotel Employees & Rest. Employees Int'l Union v. Superior Court, 35 Cal. 4th 935 (2005).
  19. ^ Sonoma County Org. of Pub. Employees v. County of Sonoma, 23 Cal. 3d 296 (1979).
  20. ^ R.A.V. v. City of St. Paul, Minnesota, 505 U.S. 377, 382 (1992).
  21. ^ United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 813 (2000).
  22. ^ Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994).
  23. ^ Craig A. Anderson, An update on the effects of playing violate video games, 27 J. Adolescence 113 (2004). [1]
  24. ^ Douglas A. Gentile et al., The effects of violent video game habits on adolescent hostility, aggressive behaviors, and school performance, 27 J. Adolescence 5 (2004).[2]
  25. ^ Jeanne B. Funk et al., Violence exposure in real-life, video games, television, movies, and the internet: is there desensitization?, 27 J. Adolescence 23 (2004).[3]
  26. ^ See Entertainment Software Rating Board
  27. ^ Rumsfeld v. Forum for Academic and Institutional Rights, Inc., 547 U.S. 47 (2006).
  28. ^ Zaruder v. Office of Disciplinary Counsel, 471 U.S. 626 (2985).
  29. ^ Biskupic, Joan (2010-04-26). "High court takes video game case". USA Today.
  30. ^ a b c d Liptak, Adam. "Supreme Court Debates Violent Video Game Ban". New York Times. Retrieved 2010-11-02. {{cite web}}: Missing pipe in: |authorlink= (help)
  31. ^ a b Pereira, Chris (2010-04-26). "Supreme Court to Review California's Violent Videogame Law". 1UP.com. Retrieved 2010-11-01.
  32. ^ Schramm, Mike (August 27, 2010). "Violent video game case gets its date in Supreme Court on Nov. 2". Joystiq. Retrieved 2010-09-27.
  33. ^ Schwarzenegger, Arnold (September 2010). "Brief of the Progress & Freedom Foundation and the Electronic Frontier Foundation as Amici Curiae in Support of Respondents" (PDF). Retrieved 2010-10-05.
  34. ^ a b c "Schwarzenegger v. Entertainment Merchants Association". SCOTUS Blog. 2010-11-02. Retrieved 2010-11-03.
  35. ^ a b c d Kendall, Brent (2010-11-02). "Court Voices Doubts on Violent Videogame Law". Wall Street Journal. Retrieved 2010-11-02.
  36. ^ Graft, Kris (2010-09-17). "Major Entertainment Industry Groups Unite Against California Video Game Law". Gamasutra. Retrieved 2010-11-02.
  37. ^ "NYRA, ACLU & NCAC Brief in Video Game Case - .pdf". National Youth Rights Association. September 24, 2010. Retrieved 2011-01-25.
  38. ^ Remo, Chris (2010-07-19). "Eleven States Join To Support California Game Legislation In Supreme Court". Gamasutra. Retrieved 2010-11-02.
  39. ^ Morris, Chris (2010-11-02). "Analysis: Inside The U.S. Supreme Court On 'Schwarzenegger v. EMA'". Gamasutra. Retrieved 2010-11-02.
  40. ^ Hahn, Beatrice (2011-02-03). "The More Things Change, the More They Stay the Same: Schwarzenegger V. Entertainment Merchants Association". Duke Journal of Constitutional Law and Public Policy. 6: 111–125. Retrieved 2011-02-10.
  41. ^ O'Sullivan, Sean (2010-11-01). "Lawmaker keeps eye on video game case". Delaware News-Journal. Retrieved 2010-11-11.
  42. ^ Riopell, Mike (2010-11-10). "Ban kids from buying violent video games in Illinois?". Daily Herald. Retrieved 2010-11-11.


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