The Lawbringer: Supreme Court decides Brown v. EMA

On June 27, 2011, the Supreme Court of the United States of America ruled that video games fall under the same First Amendment speech protections as books, movies, music, and art. Justice Scalia wrote the opinion, decrying California's attempts to restrict speech as, at the same time, too under-inclusive and too over-inclusive. What does that mean for the video game industry? What does this decision mean for video games in general? Self-regulation, it seems, is doing the job when it comes to keeping parents in charge and violent video games in the hands where they belong.

If you have no idea what Brown v. Entertainment Merchants Association (EMA) (formerly Schwarzenegger v. EMA) is about, check out my first Lawbringer feature on the topic as well as Gamasutra's feature, as it is probably the best, concise understanding of the case as it was back in November of 2010. Now, however, we have a decision. After being argued on Nov. 2, 2010, the Supreme Court decided on June 27, 2011, by a vote of 7-2 that the California law banning the sale of violent video games to minors was unconstitutional.

Just getting heard is a huge deal

This is a big victory for the games industry. To be honest, it seemed unlikely that the highest court in our land would vote against the First Amendment and the protections that it grants. Rather, the more impressive notion was that the court heard the case in the first place. The Supreme Court only gets to hear and decide a small number of cases every session. Here's how the system works, in a nutshell, at the federal level: Cases are brought to federal district court and are argued and decided. If you're not happy with the lower court's decision, you can appeal up to the United States court of appeals and have the case heard again. If you're not happy with the court of appeals' decision, you have one final place to go, the highest court of the land, and appeal to the Supreme Court of the United States.

Since not all appeals get to be heard by the Supreme Court, getting heard is kind of a big deal. Usually, when a Supreme Court gets a case, it denies it certiorari (pronounced "cert" -- that's a law school joke) and just agree with the lower court's ruling. Done and done. When the Supreme Court grants certiorari, it means it wants to hear the case, that this issue is timely, important, or has an answer the specific justices are ready to give an answer on. When you bring your case to the Supreme Court and under which justices are two of the biggest factors in getting your case heard.

Video games were heard. Justice Scalia's opinion is about 18 pages of condemnation of the California law, a look at how California's legislature appears to be trying to ban the message and not the effects on children, and that the First Amendment protects speech even if it comes in a new, interactive form. It was a good day for gamers to hear one of the most conservative judges on the Court put video games in the same light as great works of literature, such as Dante's Inferno. I am wary to inform Justice Scalia that a video game was made about his seemingly favorite epic poem, because I don't know how much he would appreciate it. At least it would get First Amendment protections ...

Decisions, decisions

Here's how to impress your friends and acquaintances at parties. In order for California's law to remain on the books, it had to pass what is called strict scrutiny, the highest benchmark a law must pass. Strict scrutiny requires a law to have a compelling government interest but to be tailored in such a narrow way that there is very little to no collateral damage around the law's enactment. If you want to ban just beef, you have to just ban beef, not all meat from all animals. California's law could not pass the test.

The data just wasn't there to support that exposure to violent video games had any more or radically different effects on children than television, movies, or Saturday morning cartoons. Since none of those things were being banned as well, the law, with its stated purpose of protecting children from the effects of grotesque violence, was under-inclusive. How can you just ban violent video games when you aren't also banning violent Saturday morning cartoons? California's legislature also said that the law was going into effect to help parents keep violent video games out of their children's hands, but the court argued that not all parents share this viewpoint, making the law over-inclusive. So the ban of the sale of violent video games to children was both over- and under-inclusive.

After all was said and done, the court did not agree with California's arguments. It felt that parents still were the arbiters of what gets to come in to the household and that the interactive nature of video games was present in all forms of entertainment, from movies to good books and beyond. Great stories, it discusses, beckon the reader to be interactive and feel real, strong emotions. If that isn't interactive, I don't know what is. Scalia even makes the point that violence is not something that we in the United States have shielded our kids from in the past, down to the Grimm's Fairy Tales, where people are dismembered and murdered, shoved into ovens, or tortured.

Activision Blizzard argued for self-regulation

One of the most salient points made in the decision was that the ESRB is working, perhaps even better than similar industries that rely on self-regulation. The decision states:

In 2009, the Federal Trade Commission (FTC) found that, as a result of [the ESRB], "the video game industry outpaces the movie and music industries" in "(1) restricting target-marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children's access to mature-rated products at retail.

Activision Blizzard filed a brief in support of the EMA back when the case was being argued in 2010. In it, the brief was backing the ESRB and the self-regulation of the video games industry, arguing that video games were just like the movie industry and had the same types of protections in place to keep violent content out of children's hands. The court agreed. The court even commented on the fact that California's ban wasn't really a ban if you could still have the parent, guardian, aunt, uncle, or wayward hobo (they didn't say hobo) purchase the video game for the kid and let him go to town. If you really wanted to ban the sale of violent video games to children, you ban the sale of violent video games to children.

We should be proud, as gamers, that the ESRB has been such a good steward of our industry. Sure, it's not perfect. But the policies put in place were enough to convince the Supreme Court that we were doing fine without government intrusion. That's a pretty damn good place to be in. That's the best part, however -- the ESRB is such a strong foundation that changes and reforms to the system already have such a strong footing to stand on, and Activision Blizzard argued strongly for that position.

What does this mean?

Well, it means a lot. First, when these sort of statutes or laws come up again in other courts around the country, the video game industry has a Supreme Court trump card that it gets to play. Supreme Court trump cards are pretty much the best you can get in the legal system. Since it took six years to get a decision in Brown v. EMA, it doesn't seem likely that we will have another fight about video games at this level for a good, long time. The Supreme Court said what they wanted to say -- video games are protected speech under the First Amendment of the Constitution. Period. Will new laws spring up? Yes. Will the fight continue? Yes. Do we have a powerful tool at our disposal against those that would unjustly ban video games based on content that they didn't find appropriate? Oh, yes.

Second, this decision means that video games matter in our society. They matter enough, at least, to get the attention of the Supreme Court and to have them take time out of the issues that plague us to decide a serious First Amendment claim.

Finally, it means that we get to agree on something, across the political spectrum. The Supreme Court is notoriously conservative at this point in time but still sided with the video game industry, a traditional enemy of conservative politics. When push comes to shove, liberal or conservative, we can agree that speech is speech and it deserves protection.

Video games won a lot of respect with this decision. We don't care about the ultraviolent games or the puerile filth, but rather video games as art and expression. The great stories and storytelling, the characters and visuals, the underlying code magic of it all -- these things are real, and we've known it since the beginning. And now everyone knows it.

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