How tomorrow's Supreme Court violent game case could affect consumers

Tomorrow, the United States Supreme Court will convene to hear oral arguments for Gov. Arnold Schwarzenegger v. Entertainment Merchants Association -- a case most gamers are likely familiar with. The court will decide whether or not to overturn the decisions of the Northern District of California Court and the Ninth Circuit Court of Appeals -- both of which found California law AB 1179, which bans the sale of "violent" video games to minors, to be unconstitutional.

According to Entertainment Consumers Association vice president and general counsel Jennifer Mercurio, there's a lot more at stake in this case than whether or not mature titles will be legally withheld from Californian teenagers. Much, much more, in fact -- should the Supreme Court overturn the ruling of the two lower courts, certain First Amendment protections currently afforded to video games (and, by association, other forms of entertainment media) could be abolished, completely changing the landscape of the industry.

Mercurio sums it up nicely: "I'd say it's clearly the most important and influential decision that the video game industry has ever faced."

"Ultimately," Mercurio explained, "the case is about whether video games will be protected like other artistic content like movies, music and books. If the Supreme Court finds that violent content is not protected in video games, it'll only be a matter of time before the question is reopened for the other entertainment media as well."

"I'd say it's clearly the most important and influential decision that the video game industry has ever faced."Jennifer Mercurio

The removal of these protections wouldn't go unnoticed by game consumers. According to Mercurio, should the Supreme Court rule in favor of Gov. Schwarzenegger, the content, cost and availability of video games would be affected for the worse.

"Games would become less accessible and more expensive," Mercurio explained. "Added costs associated with developing, marketing and selling games with any violence in them will be rolled into the price of games and passed on to consumers. We'd also likely see game developers censoring themselves in the creative process, perhaps even making one version for the U.S. and another for the rest of the world."

"Retailers would probably sell games very differently than we're used to presently – either creating a separate area for those that might run afoul of the law, and some may choose to cease merchandising them altogether, due to the inherent risk," Mercurio added.

These worries echo those of Activision Blizzard chief public policy officer George Rose, who stated earlier this month that game store clerks would have to "guess whether a game is covered by the law or not because it won't use the ratings system our industry developed." Should they guess incorrectly, they or their employer could face considerable fines.

Of course, AB 1179 isn't the first state-level law that restricts violent entertainment media from minors. Many similar pieces of law have been drawn up by state legislators across the country -- and almost all of them have been found unconstitutional in their respective District and Circuit Courts.

"There is a lot of precedent for this type of case, and it's getting to the Supreme Court," Mercurio explained. "Books, movies, music, comic books and magazines have all been attacked in this manner and they have all, thus far, prevailed as protected content under the First Amendment. We hope that the Court views video games in the same light."

One such precedent was created in the Seventh Circuit Court of Appeals' 2001 decision in the case of American Amusement Machine Association v. Teri Kendrick. The court repealed an Indianapolis ordinance which limited the accessibility of arcade games with violence deemed excessive enough to be "harmful to minors." Due to the widely-tailored language of the law, the court decided that it would not have "conformity with First Amendment principles."

One major factor in Schwarzenegger v. EMA will be the scientific link between the consumption of violent media and the development of violent tendencies in adolescents. According to the language of AB 1179:

Exposing minors to depictions of violence in video games, including sexual and heinous violence, makes those minors more likely to experience feelings of aggression, to experience a reduction of activity in the frontal lobes of the brain, and to exhibit violent antisocial or aggressive behavior.

However, Mercurio contests that no generally accepted evidence of this claim exists.

"Studies continue to surface regarding this topic, but none of them has shown definitive proof that there is a direct causal link," Mercurio explained. "Unlike many of the parties weighing in on both sides of this case, the ECA has openly endorsed the idea of longitudinal and comprehensive studies about the effects of violent media – on minors and adults. Instead, what we've seen generally are often biased research attempts that study gaming and exclude all other media."

Cases like the Circuit and District Court review of AB 1179 can prove to be costly ventures for the state -- California, for example, was forced to reimburse the Entertainment Software Association for its legal fees to the tune of $282,794 following the Circuit Court's 2008 decision in favor of the ESA. According to Mercurio, there are plenty who believe that ending these costly protracted legal battles could have been the impetus for the Supreme Court to grant Certiorari to Gov. Schwarzenegger's appeal -- which is one of only 55 oral arguments the court will hear this term.

"For video games, 2011 and 2012 will probably be extremely active across the country on the legislative front."

"Many publishing executives have said that they're hopeful that the Court is hearing the case in order to put a halt to on-going state-level actions, but there's really very little reason for that optimism," Mercurio said. "A win for publishers and merchants would not stop additional legislative attempts."

"Honestly, the end result will go beyond the Court's decision," Mercurio added. "[Sen. Leland] Yee has said widely that he will introduce new legislation should the Court decide for video games. Other state legislators have said they're going to introduce legislation in response to this case. For video games, 2011 and 2012 will probably be extremely active across the country on the legislative front."

Mercurio suggests that any gamers looking to get involved with these major decisions should follow the efforts of organizations like the ECA. Interested parties can still sign the group's "Gamer Petition," which protests the government to find that "video games are indeed free speech, protected under the First Amendment, like other entertainment media." In addition, the ECA will host a rally on the steps of the Supreme Court tomorrow at 9 a.m. ET.

"The louder our collective voice becomes," Mercurio said, "the more likely we are to be heard."