September 20, 2010 – WASHINGTON, DC – Over 180 leading First Amendment experts, national organizations, non-profits, associations, researchers and social science experts filed amicus briefs last Friday urging the U.S. Supreme Court to uphold the Ninth Circuit Court of Appeals ruling in Schwarzenegger v. Entertainment Merchants Association/Entertainment Software Association. The California statute at issue was ruled unconstitutional by two lower courts. Federal courts have ruled 12 times in eight years that computer and video games are First Amendment speech and that legislative attempts similar to California’s effort to regulate video games run afoul of the Constitution.

“The depth, diversity and high quality of briefs submitted strengthens our position before the Court. These briefs are rooted in virtually every form of expression, commerce, social science, and constitutional jurisprudence imaginable,” said Michael D. Gallagher, president and CEO of the Entertainment Software Association (ESA), a respondent in the case and the trade association representing U.S. computer and video game publishers. “It is our hope that the Court will uphold an unbroken chain of lower court rulings that affirm video games’ First Amendment protections, the rights of consumers’ access to speech, and that parents – not government – are the best arbiters in determining what is right for their children.”

The amicus briefs filed in the case Schwarzenegger v. Entertainment Merchants Association/Entertainment Software Association echo the points outlined in the respondents’ brief, which was filed in the Supreme Court on September 10, 2010.

82 leading and well-respected social scientists, researchers, and medical professionals challenged California’s reliance on questionable research and incomplete data. The scientific experts write, “The studies [relied upon by the state] are of no help to California…because they document neither a causal connection nor a correlation between the playing of violent video games and violent, aggressive, or antisocial behavior.” They continue: “Indeed, whether attempting to link violent video games with psychological or neurological harm or with violent, aggressive, and antisocial behavior, all of the studies…suffer from inherent and fundamental methodological flaws.” In a rebuke to the state, the brief states that California “ignore[d] a weighty body of scholarship, undertaken with established and reliable scientific methodologies, debunking the claim that the video games California seeks to regulate have harmful effects on minors.”

Urging the Court to affirm the Ninth Circuit’s ruling, the United States Chamber of Commerce filed a brief extolling the efficacy of the video game industry’s independent rating system and how the California statute fails strict scrutiny. “California’s law fails strict scrutiny because a ban on the sale or rental of violent video games to minors is not the least restrictive alternative to protecting them from age-inappropriate media content. Industry self-regulation is a highly effective and less restrictive alternative.” The Chamber’s brief cites a 2009 Federal Trade Commission (FTC) lauding the video game industry’s rating system for its effectiveness in assisting parents in their gate-keeping role. The Chamber highlights that the FTC praised the industry for restricting target-marketing, clearly and prominently disclosing rating information, and restricting children’s access to mature-content at retail.

The Motion Picture Association of America, joined by nine other organizations representing different aspects of the movie industry, stressed the ramifications for the movie industry of letting the California statute stand. They wrote, “if this Court were to hold that California’s statute is valid, it would have a dramatic chilling effect on the motion picture industry… [S]tate and local governments could attempt to impose similar restrictions on depictions of violence in other media, including motion pictures. Such restrictions would have an obvious chilling effect, particularly given the inherent amorphousness of restrictions of that type and the potential for a patchwork of nationwide regulation.”

Attorneys General for Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah, and Washington State, argue in their submitted brief that “quick fixes such as the California Statute cause more practical and constitutional problems, in expanding unneeded regulatory activity and hindering law enforcement, than they solve. The potential negative impacts on State government and State citizens are important enough that the undersigned feel compelled to voice their concerns…”

The National Association of Broadcasters also filed a brief in support of respondents (EMA/ESA). It urges the Court to find the California statute unconstitutional because, among other things, “[t]he video game industry…has adopted a voluntary and widely used rating system for video games, supported by technology that allows parents to limit a child’s access to games based on the ratings. The California regulatory scheme simply ignores this less restrictive approach to achieving its putative goal of child protection. In doing so, it runs roughshod over the First Amendment rights of content producers, retailers, and consumers.”

Oral arguments for Schwarzenegger v. EMA/ESA will be on Tuesday, November 2, 2010.

The Entertainment Software Association is the U.S. association dedicated to serving the business and public affairs needs of companies publishing interactive games for video game consoles, handheld devices, personal computers, and the Internet. The ESA offers services to interactive entertainment software publishers including a global anti-piracy program, owning the E3 Expo, business and consumer research, federal and state government relations, First Amendment and intellectual property protection efforts. For more information, please visit http://theESA.com.