The Lawbringer: Schwarzenegger v. EMA

Pop law abounds in The Lawbringer, your weekly dose of WoW, the law, video games and the MMO genre. Running parallel to the games we love and enjoy is a world full of rules, regulations, pitfalls and traps. How about you hang out with us as we discuss some of the more esoteric aspects of the games we love to play?

Supreme Court cases are super-exciting, especially when they involve things that I cherish. This week, The Lawbringer looks at Schwarzenegger v. EMA, the new flagship video game case that people will be talking about for months until we get a final ruling from the Supreme Court. Don't know what's going on? Want a basic understanding of why people are yelling and screaming about violent video games and California? Let's journey together all the way back to 2005 and see for ourselves.


Greg Boyd, who I consider to have the "right" policy discussion dealing with this case, wrote an excellent piece for Gamasutra that everyone should read. I'm sure that soon, his article will become the definitive place to read about this case. He's also an awesome guy.

You've read all over the internet the past few weeks about Schwarzenegger v. EMA, the greatest video game court case ever tried before human beings. Well, technically, that opinion wouldn't be too far off. The current fight in the Supreme Court of the United States is a very important one, with an outcome that could very well disrupt a good amount of game developers and set in motion some pretty crazy laws in states that don't care too much for our children playing the Grand Theft Autos, blaming all of their problems on the video games their children play rather than the parenting needed to purchase one of these games.

In 2005, California passed a law that banned the sale of certain video games to children and imposed a $1,000 fine for each infraction of the law. The state effectively took over the role of the ESRB, the rating board for video games, and said that there needed to be clear ratings going above and beyond what the ESRB already had in place. Many organizations, including the now-named Entertainment Merchants Association (EMA), challenged the law in federal court, citing the law's unconstitutionality in violation of the First Amendment of the U.S. Constitution. Remember, the first amendment protects against the states' interfering with protectable forms of speech.

Laws are good, right?

Laws are great, sure, when they don't reach too far or define things too broadly. A great deal of the problem with the California statute is that it defines violent video games in an incredibly broad manner, effectively putting too great a limit on protected artistic speech. There's a standard called "strict scrutiny" that the court uses to determine if a law is narrowly tailored enough to limit speech; the law has to serve a compelling government interest and be narrowly tailored to meet that objective. So if the California law serves a legitimate state interest (stopping minors from purchasing violent video games) and is specific enough that no other, less restrictive solution can be put in place that does the same job, the law will be upheld.

Well, the ESRB is already in place, and self-regulation, in concert with retailer policies, is arguably already doing the state's job without restricting speech. That's the argument -- is this such an important matter for the state that speech must be restricted in order to serve the state's best interest?

Maybe? That's what lawyers are for. The point will be argued back and forth and eventually, in 2011, we'll get a ruling from the highest court in the land. Other states (11, in fact) have filed briefs with the court in support of California's law because they also would love to have this law passed. Here are the consequences: If the law is upheld in California, the reasoning used in the case gets to be used by every other state that wants to limit speech in such a way, with California setting the precedent. We already talked about how powerful precedent is.

The video game industry, as well as other organizations, is not staying silent. It also has thrown in its support behind EMA and striking down California's law. Creating this exception to free speech would move the dial closer to rationales for banning books, movies, art, television, and a whole host of other protected forms of artistic speech.

Activision Blizzard's support

Since this column is all about boomeranging things back to World of Warcraft, let's take a look at Activision Blizzard's role in the whole deal. It's not a formal role, since Activision Blizzard isn't a party in the case, but the company did file what is called a brief of amicus curiae. Basically, a non-party to the case can file a brief of information, testimony, articles and opinions that will help the court come to a better understanding of the issue at hand.

If you want to check out the brief, you can read it here. The whole document is about 40 pages of legal fun, but the real gist of the article is that the ESRB is more than capable of providing the public with the information to make informed decisions about whether or not children should be playing violent video games. Self-regulation is a huge deal in the video game business in America, and there will be a Lawbringer about that in the future. So for now, know that Activision Blizzard (as well as most, if not all, game developers and publishers out there) would prefer self-regulation to federal or state laws that dictate who can buy what.

The ESRB's role and why movie ratings aren't law

G, PG, PG-13, R, and NC-17 are not law. If you are underage and let into an R-rated movie by the ticket collector at the local theater because you're wearing a UCLA sweatshirt and pretend to be a college student (it worked, trust me), the guy who broke the movie theater's policy isn't going to get carted off to state penitentiary. That's because the movie industry, for the most part, is self-regulated. The industry itself polices films and who sees them, through theater policies, ratings, etc. Fun fact to blow away party-goers at your next shindig: Gremlins, from 1984, played a huge part in the advent of the PG-13 rating.

Movies are submitted to the Motion Picture Association of America (MPAA) for a rating; the body deliberates and stamps the movie with whatever rating it deems appropriate. Video games work in a similar way. The self-regulation comes from the fact that most movie theaters won't screen movies that aren't rated by the MPAA, just as most stores won't stock video games without an ESRB rating. Ta-daa, you have self-regulation without the need for the state or federal government to step in and tell you how to do your business.

The big difference comes from the fact that there was a special exception carved out for certain obscene movies, mostly pornography, back in the 1960s. So much like that decision in Ginsburg v. New York, California is seeking the same type of exception that was carved out for obscene pornography to also apply to violent video games. Therefore, another question presented is: Are violent video games as obscene as or similarly obscene to the pornography that it is illegal for minors to purchase, and if this ruling were to come down on California's side, what does this mean for violent movies, television shows, and art?


Now, we wait. We wait for the Supreme Court to come to a ruling about whether California has a legitimate state interest in controlling who buys violent video games and whether the law on the books meets that end in a suitably narrow fashion.

My stance is pretty clear -- parents, not the state, should be responsible for what video games their children play. I say this not because the state is necessarily bad at deciding what children should or shouldn't have access to, but that it's the parents' role, and no one has proven that violent video games make violent children or adults. And Justice Kagan's remarks during oral argument speak to this, that even if most of the clerks at the Supreme Court were exposed to Mortal Kombat back in the day, they still turned out all right.

I still maintain that we, as gamers, need to be the ones to set the standard and control the message about video games, so that controversies like the Fox News Mass Effect debacle never happen or titles such as the apparent video game industry flagship title Postal 2 don't get the attention they so desperately do not deserve.

This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at