This piece was just emailed to me to be passed on to you guys. This Supreme Court case starts tomorrow. Thank Ivan for the tip.

The video game industry is readying itself for a battle over free speech to take place Nov. 2 – when the Supreme Court will hear oral arguments in Schwarzenegger v. Entertainment Merchants Association. The case examines the constitutionality of a California law banning the sale of violent video games to minors.

Earl Mellott, a Boston-based partner in the law firm Foley Hoag LLP and member of the firm’s Video Games and Interactive Media practice, notes that such a ban could have a chilling effect on the video game industry.

“Legalization of such a ban would have unintended consequences to the growing video game industry and its evolving online economy – and give birth to a costly enforcement regime,” said Mr. Mellott, who counsels game developers on various business activities and corporate transactions. “There are less restrictive means of protecting minors from violent content in video games.”

Mr. Mellott notes that the industry is currently self-regulated by the Entertainment Software Rating Board, which was established by the nonprofit trade association Entertainment Software Association, a respondent in the case, and that the industry has already been doing an effective job at policing itself.

“Additional regulations which impinge upon rights of free speech – if not unconstitutionally violate them – aren’t needed. In recent years, it’s been harder for kids to buy an M-rated game than to sneak into an R-rated movie.”

Mr. Mellott referred to a recent FTC survey (utilizing 13- to 16-year-old undercover shoppers) that found that 80% of minors who attempted to buy from retailers an M-rated video game had been turned away.  This is a superior compliance rate than with purchases of tickets to R-rated movies, R-rated DVDs and music CDs labeled with a Parental Advisory Label (“PAL”).  Minors in the survey were turned away from buying these items 72%, 46% and 28% of the time, respectively.

The Schwarzenegger case has elicited the filing of over two dozen friend-of-the court briefs from various groups, most of them in support of EMA; amici curiae include Microsoft, Activision Blizzard and nine different states.  “It was somewhat surprising that the Supreme Court even granted cert in this case,” notes Alex Aber, another attorney with Foley Hoag’s Video Games and Interactive Media practice, “since statutory attempts to restrict the sale of ‘violent’ video games to minors have been routinely shot down by courts.  Folks are wondering whether the Supreme Court took the case to put an end to this debate once and for all, or whether this more conservative-leaning court is going to surprise – and disappoint – the industry.”

Mr. Mellott said, “Foley Hoag’s video games practice is watching this case closely. In the U.S. alone, the video game industry generates billions annually, and the decision in the Schwarzenegger case could have far-reaching consequences.”

Foley Hoag’s Video Games and Interactive Media practice provides corporate counsel and strategy advice to a variety of established and emerging companies. Among its clients are interactive media and entertainment company 38 Studios, founded by Major League Baseball three-time World Series pitcher Curt Schilling, and SCVNGR, Inc., a developer of a geo-gaming mobile platform that enables users to build location-based mobile games, mobile tours, and high-tech interactive real world experiences.