ESA General Counsel lays out game industry argument to the Supreme Court

When the clock strikes 10 a.m. tomorrow morning in Washington, D.C., the Supreme Court will begin hearing oral arguments in the case of Gov. Arnold Schwarzenegger v. Entertainment Merchants Association. By now, you know how the results of this landmark case will affect the video game industry and its consumers -- but who's actually going to bat for the industry in tomorrow's hearings? More importantly, how does that litigatory sausage get made?

Entertainment Software Association general counsel and senior vice president Kenneth Doroshow is one such batter (or sausage-maker, depending on which of the previous metaphors you followed). A media law heavyweight in his own right, Doroshow has served as an executive for the Recording Industry Association of America and as senior counsel the U.S. Department of Justice before joining the ESA in September 2008. Tomorrow, he'll be one of the legal representatives for the Entertainment Merchants Association, responsible for helping it make its side of the argument to the Supreme Court.

Doroshow broke down the specifics of that argument for us earlier today. To learn about the case the ESA is presenting in court tomorrow -- as well as the possible repercussions of the Supreme Court's decision -- check out our Q&A with Doroshow after the jump.

Can you explain exactly what goes on during the oral arguments?

It's actually a fairly straightforward process. The court's called to order, the Justices appear at the bench, and the two sides are each given a half an hour to present their case. The state of California will go first because they're the petitioner, meaning they're the ones who sought appeal. The advocate for California will begin his presentation, and in all likelihood, within a short period of time, will be getting peppered with questions from the Justices.

After his time is up, Paul Smith, who is arguing the case for us, will get up and make our presentation, and the same process will happen there. He'll get questions from the court and he'll be challenged to respond to them. As soon as that's over, that's it. Then the case is submitted for decision from the court. They'll privately vote on what the decision should be, and the Chief Justice will assign the drafter of the majority opinion. Then the drafting process will commence, and that takes several months, typically.

The term ends in June, so a decision would have to happen before then. We're expecting it earlier than that, but it's very hard to guess in advance how long it will take for the court to draft the opinion. If there are any dissents, the dissenting Justices, or if there are any concurrences -- which means that a Justice agrees with the results but has a different reason for it -- then they'll draft their own opinion, which will be released at the same time as the majority opinion. And that's pretty much it in a nutshell.

What are the main arguments that your side of the case is making?

It's a few things. First of all, we start from the first principle, that video games are First Amendment-protected speech, just like any other art form. What motivates these laws, and what we've seen from them a number of times, is a sort of ignorance about what video games really are. We want to make it clear that they are speech, expressive speech to the same extent -- frankly, more so than any other form of media, whether it's movies, books, TV, music, etc..

When you start from that position, that this is First Amendment speech, the law is very settled that when you have a content-based restriction on protected speech, that that restriction must be subject to the strictest scrutiny that the First Amendment provides. In other words, if the state wants to regulate in this area, it has to prove a compelling state interest in the regulation, and then it has to prove that the regulation is narrowly tailored to serve that interest.

"There may be some way to define sexually explicit content in a way that's not unconstitutionally vague, but you can't do it with violence, simply by virtue of what violence is..." - Kenneth Doroshow


We say that the state has failed on both counts. In terms of the compelling state interest, they simply haven't shown that there's any harm here in need of any government intervention. For one thing, the social science that they rely on simply doesn't support the claim that there's any harm from video games. Secondly, the fact is that the industry already highly functioning, very successful self-regulatory model of the ESRB rating system and parental controls on the consoles, that enable parents to make as informed a decision as they want to make in terms of what games are appropriate for their kids or not.

There simply isn't any problem here for which this supposed solution is necessary. That's the first piece of it. The second piece of it is the absence of a narrowly tailored solution. Again, the ESRB system is a less restrictive way of dealing with this supposed problem, and that's already in place, so there's no need for the statute.

Finally, our fundamental point is whatever you say about the state interest and the strict scrutiny analysis, the law here is simply so vague as to be unconstitutional on its face -- by that I mean the universe of material that the statute purports to restrict is simply unknowable up front.

The idea that you can craft a definition of inappropriate or offensive violence in a way that's clear to anybody in the ecosystem here, be it the game developer, the publisher or the retailer -- what does it mean to have a violent video game that depicts killing or maiming of images of a human being in a way that appeals to the deviant or morbid interests of minors? All of these terms, which come directly from the statute, have no practical meaning. What does it mean to kill an alien in a video game? Is it a human lifeform? What if it's a human that's come back to life?

It's a whimsical kind of artistic medium, so the ability to draw lines here about what's inside or outside of the statute simply isn't knowable at the outset, so that has the effect of chilling First Amendment protected speech, and the very purpose of the First Amendment is to protect against that very scenario.

So the other side hasn't come up with a metric for how violent a game would have to be before it would be banned under the law?

Well, rather than a metric, what they've come up with is a definition of violence within the statute. They've borrowed from the definition of obscenity that the Supreme Court has crafted over a period of decades, but instead of referring to sexual content, they stick in the word "violence." They've appropriated -- or misappropriated -- the definition of sexual obscenity and tried to make that the definition of violence.

They're likening the violence in video games to obscenity which, as a category, can be regulated by the government, because it's considered unprotected speech, but our point there is that there's a world of difference between sexually explicit content and violent content. There may be some way to define sexually explicit content in a way that's not unconstitutionally vague, but you can't do it with violence, simply by virtue of what violence is, and the nature of violence, in culture and expressive media, generally.

Isn't there also a world of difference between obscenity and potentially corrupting material?

It's really one and the same. That's kind of what they're getting at, there. What California has seized on is -- there was this case in the 1960s, Ginsberg v. New York, which recognized a kind of variable definition of obscenity, where you have content that is not obscene for an adult to see, like Playboy magazine -- the case called it "girly magazines" -- where it would not be obscene for an adult to see it, but it would be obscene for a minor. They basically allowed for a variable definition of what kind of sexually explicit content was obscene as to minors but not as to adults.

What California is trying to do is expand that into the realm of violence, saying that there are materials that are so violent that they should be deemed obscene, even though they don't have sexual content in them, which makes it seem like an odd fit.

Doesn't the ESA have plenty of precedent that it can draw on to support its stance from Circuit and District Court decisions on similar state-level laws?

Well, unfortunately, when you're in the Supreme Court, the decisions of lower courts are not binding. We certainly may reference the fact that every court that's looked at this has agreed with us, and that's very persuasive, but the Supreme Court isn't bound to follow those decisions because they're decisions of the lower courts.

However, there are other Supreme Court cases in other contexts, whether it be obscenity or, even just last term, there was a case about violence, and whether violence should be recognized as a new category of unprotected speech. So we refer the court back to its precedent in other contexts. We believe the law favors us, we certainly are confident that we're on the right side of this and we hope the court agrees.

One of the core reasons why the District Court first ruled against AB 1179 was that there was no "generally accepted" study or proof drawing a connection between violent games and the development of violent behavior. Has anything changed on that front since that ruling back in 2007?

No, the only thing that's changed since then is that the same critics have tried to resuscitate the same kinds of studies. There were a couple of meta-analyses that were released, which are collections of previous studies, and our point there is that a meta-analysis doesn't eliminate the flaws in the underlying studies. So it's really more of the same. The social science that's out there simply doesn't support their claim.

Why isn't there a generally accepted study into this issue?

I don't think that there's not a generally accepted study -- the courts have concluded that when you look at the studies that are out there, they simply don't support the conclusion that the critics are drawing. In fact, the effect sizes that are analyzed in these studies show really insignificant effects in terms of the supposed psychological impact or aggressive behavior. The effect sizes are so insignificant that they don't show anything.

And to the extent that they show anything at all, if you take that evidence at face value, they certainly don't show any different effect from video games from any other form of media, whether you're watching a movie or TV, or reading a book. In fact, one of the studies found that reading the Bible created the same effect as playing a violent video game, because of course there's some very violent passages in the Bible.

Yet another study – and these are all studies that California is citing – talks about viewing an image of a gun, just looking at the picture of a gun creates the same effect as playing a violent video game. So it's not that there's not a generally accepted study, it's that there's no acceptance that their conclusion is supported by those studies. The rhetoric of our critics vastly exceeds the evidence that they rely on.

"The rhetoric of our critics vastly exceeds the evidence that they rely on." - Kenneth Doroshow

Are the Justices concerned for the well-being of the video game industry, or is the fact that this is a First Amendment issue going to be the most important factor when they're ruling on this case?

All nine Justices take their jobs and the issues very seriously, and this is a big case. They wouldn't have granted it review if it wasn't a big case, so we expect that they'll all take a look at this very carefully.

The Supreme Court has shown historically to have a strong sensitivity to the need for the First Amendment to protect against censorship, and to protect the free flow of expression of ideas, so we're hopeful that they'll see that need here. What's at stake here is, in many ways, not just about video games. It's about the ability of creators, of artists, of anyone who's in the business of expression to do it in a way unfettered by regulation -- particularly regulation that is simply unnecessary given the facts on the ground.

A number of publishers have stated that the Supreme Court might be hearing this case -- one of only 55 cases they're hearing this year -- to put a stop to costly legal battles over state-level laws. Do you think this was a factor in the Supreme Court deciding to rule on this case, or is it just because it's such a big First Amendment issue?

You know, it's always hard to know precisely what the court's reasons were for granting the decision. I personally don't disagree with that analysis, that it's very possible that they took the case to put an end to what they saw as a pattern of legislatures getting it wrong on a very important matter of the First Amendment. That being said, the reasons for the grant are known only to the Justices who voted in favor of it.

We take nothing for granted, we're regarding this as a very serious case, and we're very grateful for this opportunity to make our case to the court and have this national platform for people to get a better understanding of what this industry is about.

Senator Yee and other state legislators have said that regardless of how this case goes, they're going to submit more gaming legislation. Is that a concern for the ESA? Will the Supreme Court decision affect how that legislation gets made?

Well we would hope that the legislators who are of that ilk would see that the better path is to work with us rather than against us. We would welcome the opportunity to come up with creative solutions with legislators to, for example, improve people's awareness of the ESRB ratings system, educate parents about what their options are, if they have any issues about what games are appropriate or aren't appropriate, to just making sure they know about the tools -- the many tools -- that are at their disposal to control what's going on in their homes. That's always been the preferred route from our perspective, and we're hopeful that if the Supreme Court clarifies the rules of the game, here, that legislators will see the better of it.

How much of the other side's argument is driven purely by politics, to score favor with family values voters?

It's not that I can't answer the question -- I don't know the answer to the question, what motivates people to do this sort of thing. I do think it's safe to say that these kinds of legislative efforts do score cheap political points, so there is that. And I think to the extent that these are sincerely held beliefs by people -- they're simply misinformed. They're born of an ignorance, a lack of familiarity of what video games really are.

In fact, a lot of the people on the other side of this thing from us, they often admit that they don't play games themselves, they don't know about it. They hear about it, or they saw a video someone else's gameplay. There's no appreciation of what's really going on in these games. So, it's either born of a political cynicism on one hand, or those who sincerely believe it, it's simply ignorance on their part.

Short term, long term -- what's the future of this issue? Not only of this case, but of the issue of violence in video games?

That's a tough one. I think the answer there depends entirely on what the Supreme Court says in its opinion. What they decide will have a dramatic and long-lasting impact on the issue of violence in video games. It's our sincere hope that they put an end to this debate, but it all depends on how it's written.

[Headshot of Mr. Doroshow provided by ESA. Other Image credit: Dimitri N.]

This article was originally published on Joystiq.