Arnold Schwarzenegger V. Entertainment Merchants Association and Entertainment Software Association
Brief of Respondents
September 10, 2010

The U.S. Supreme Court has set a date to hear Schwarzenegger V. EMA.  The hearing will take place on November 2nd and marks the very first time the Supreme Court has ever heard a case on the topic of banning video games.

The case stems from a piece of 2005 legislation that banned the sale or rental of video games to any minor (Those under the age of 18.) that had been deemed “violent video games”.  A game would be determined violent if the examples of violence contained within the game are considered to be “offensive to the community.”

The legislation received challenges at the District Court level and the Ninth Circuit.  You can find a good review of what happened with each of those appeals at Media Coalition.

Upon selecting the case for review, the Supreme Court asked each party two questions:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?
2. If the First Amendment applies to violent video games that are sold to minors and the standard of review is strict scrutiny, under Turner Broadcasting Sytems, Inc. v. F.C.C., 512 u.s. 662, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical or psychological harm to minors before the state can prohibit the sale of video games?

The respondent brief indicates that, “Respondents submitted six games into the record: Medal of Honor: Frontline, God of War, Tom Clancy’s Rainbow Six 3, Jade Empire, Resident Evil IV, and Full Spectrum Warrior.  Respondents also submitted videotapes of more than two-and-ahalf hours of excerpted game play from the six games (in contrast to the five minutes of excerpts submitted by California), and have lodged a DVD with the Court containing the game play excerpts.”

And Thomas Buscaglia of Gamasutra has put together a quality summary of the main arguments against the California law that have been submitted to the Supreme Court:

I. Video Games, Including Those That Depict Violence, Are A Form Of Expression Fully Protected By The First Amendment.

- A. Video Games Are Fully Protected Expression.

- B. Depictions Of Violence Are Protected Expression.

II. The Court Should Reject The State’s Unprecedented Plea To Carve Out First Amendment Exceptions For “Offensively Violent” Video Games.

- A. The Government Does Not Have Unfettered Power To Ban Speech To Minors.

- B. California’s Claimed Right To Censor “Offensively Violent” Expression Directed At Minors Is Historically Baseless And Constitutionally Improper.

- C. There Is No Support For The Claim That Minors’ Access To Violent Video Games Is A Significant Societal Problem Justifying Exempting Them From Constitutional Protection.

- – 1. California Has Failed To Show That Parents Need Government Involvement In Monitoring The Video Games Their Children Play.

- – 2. California Has Also Failed To Show That Violent Video Games Are Harmful To Minors.

- – 3. Instead Of Identifying A True Harm To Minors, California Is Repeating The Same Failed Arguments That Have Been Used In The Past To Attack New Forms Of Expression.

III. THE ACT FAILS STRICT SCRUTINY.

- A. California Cannot Show That The Act Materially Advances A Compelling Interest.

- B. The Act Is Not Narrowly Tailored.

- C. The Act Is Not The Least-Restrictive Means Of Accomplishing California’s Goals.

IV. THE ACT IS UNCONSTITUTIONALLY VAGUE.

- A. This Court Has Repeatedly Struck Down As Vague Statutes That Purport To Regulate Offensive Expression.

- B. The Act Is Inherently Vague.

You can read the respondent brief here or check out the review on Gamasutra here.