Victory lap: ESA responds to Supreme Court decision

After battling the state of California since 2005, the Entertainment Software Association met the Supreme Court's historic decision today to classify video games as protected speech with both great joy and, we imagine, a tinge of sadness. During a press call this afternoon, ESA prez Michael Gallagher fielded question after question about the case, the court's dissenting opinions, and the likelihood of future legislation trying to curb the sale of violent games.

"This is the thirteenth consecutive decsion, and obviously the most important," Gallagher said, "upholding the first-amendment rights of video game developers and video game companies." After the Supreme Court decided to hear the California case, Gallagher says that the ESA has "seen a very steady drop-off in the volume of legislation targeted at content in our industry." In fact, "there's only a single federal bill that addresses these issues at the moment and it has at least one or no co-sponsors," Gallagher said proudly.

While legislators looking to control the sale of violent games will no doubt be further dissuaded by today's ruling, other legislators have been increasingly happy to court industry attention from places like California. "In fact, we've seen an uptick, pretty striking growth, at the legislation targeted at attracting the jobs that our industry provides," Gallagher said, referring to states like Louisiana, which provide aggressive tax incentives to woo the video game industry to those states. As for California, Gallagher criticized the cost of the state's efforts to curb the sale of violent video games, saying, "The state of California spent six years and hundreds of thousands – it will probably approach over a million dollars – in fees and creating uncertainly in the marketplace, and now we've reached this result where the ESRB is, in fact – as we've been saying for years – is the right approach."

When asked if today's decision is going to change the way games are made – ostensibly allowing for more violent games to be made – Gallagher was clear: "Today's decision is not going to confer any new rights onto the video game industry; it simply affirms the rights that we believe we've always had." The next steps for the industry will be to continue to grow and expand its audience and to "continue to support and continue to perfect the Entertainment Software Ratings Board," the industry-driven effort to rate video game software. "The court decision didn't create a new right or a new opportunity and the industry is not going to take a different tack when it comes to ratings and making sure that we're being clear with parents about what our industry is providing," Gallagher explained.

A popular line of questioning is whether or not the Supreme Court will take up the case against violent video games again. "There's always the possibility that a change in personnel will change the views of the court," lawyer Paul M. Smith said. "This is a very strong opinion and the court does not overrule itself very readily. The quickest you see is decades at a time, in most cases." Smith, who presented the industry's case to the Supreme Court last year, said he doesn't think the Court is "very likely" to hear this argument again "anytime in the near future."

This is a very strong opinion and the court does not overrule itself very readily. The quickest you see is decades at a time, in most cases.- Paul M. Smith

"They didn't exactly suggest how you could write a law that could pass constitutional muster," Smith said, addressing the dissenting opinions, "and it's my view having worked on these cases for a decade that it is not possible using the tools of the English language to write a law that separates out permissible form impermissible violence for minors in a way that would have anywhere near the clarity you would require under the First Amendment, even if you got past all the other constitutional problems that the majority pointed out."

When asked if those dissenting opinions left the door open for another case, Smith joked, "It's my view as the lawyer here that any state that passes a bill that tries to regulate video games based on content is just asking to be paying my legal fees." Gallagher was far more direct: "No, that door has been slammed shut."

But what if new research better proves that there is a connection between violent video games and violence in children? "There is no link. This has been raised, litigated on multiple federal courts and now the US Supreme Court," Gallagher said, pointedly. What about the inevitable evolution of video games themselves, as graphics become more realstic? "You could look at electric toothbrushes and microwave ovens and probably have similar concerns and right now, I'm not going to deal with hypotheticals," Gallagher said, ending the press call and this line of questioning. "Based on everything we know right now, the court did exactly the right thing."