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Supreme Court's Brown v. EMA opinions: A digest
Between the majority, concurring and dissenting opinions published in today's Supreme Court decision on Brown v. EMA, there's a good 92 pages of legalese for enthusiastic gaming activists to pore over. If you don't feel like flipping through a novella of legal documents in search of relevant, easily digestible bits, feel free to check out some highlights from each opinion, which we've compiled after the jump!
Analysis: What today's Supreme Court decision means to us
In 2005, California state legislature passed Assembly Bill 1179, a law penned by Democratic state senator Leland Yee which prohibited the sale of violent video games to minors. The law mandated the application of special stickers to titles deemed too violent, and slapped retail employees who sold those games to anyone under the age of 18 with a maximum $1,000 fine. The law was signed by then-Governor Arnold Schwarzenegger, but was struck down by the United States District Court for the Northern District of California before it could be enforced. Following an unsuccessful appeal of that decision in the Ninth Circuit Court of Appeals, the law's progenitors petitioned for a hearing in the United States Supreme Court. The petition was successful, the case was argued last November and, earlier today, seven of the nine Supreme Court Justices decided to uphold the decision of the lower courts: California Assembly Bill 1179 violates the First Amendment rights afforded to all forms of media in the United States. This decision obviously doesn't just affect Californian teenagers with a penchant for video games above their maturity level. It represents a vote of confidence in games and the non-governmental agency (see: The ESRB) which regulates their sale.
Supreme Court strikes down violent game-banning California law
The Supreme Court of the United States has issued its opinions on Brown v. The Entertainment Merchants Association, a case which argued the Constitutionality of a (since struck down) California state law which banned the sale of "violent" video games to minors. The majority opinion, decided upon by seven of the court's nine Justices, is to once again strike down the law. The majority opinion, in clear terms, states: Like the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, "esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority." The decision falls in line with other decisions of the lower courts regarding video game-banning legislation, such as the respective decisions of the Northern District of California Court and the Ninth Circuit Court of Appeals, both of which found the law unconstitutional. There was, of course, a dissenting opinion (in this case, representing the concerns of Justices Thomas and Breyer) which states: The practices and beliefs of the founding generation establish that "the freedom of speech," as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings. We're sure to hear more from the Entertainment Software Association and other games lobbying groups in the coming hours, but the word from the highest court in the land is a promising one: Games, regardless of content, deserve the same First Amendment protections afforded to all other forms of expression in the United States.
Supreme Court decision on Schwarzenegger v. EMA possibly coming this week [update]
According to SCOTUSblog, a site dedicated to tracking the activity of the head of our nation's Judicial Branch, a decision on November's hearing of Schwarzenegger v. EMA (now Brown v. EMA, reflecting California's new, assumedly punier governor) will be released this week. The hearing was held to review a California law which prohibited the sale of mature games to minors -- a law which was attacked due to its ambiguity in defining what constituted a mature game. The blog expects the court to either issue its opinion on Brown v. EMA today or Thursday -- we'll make sure to let you know where they come down. Personally, we really hope they decide in favor of the EMA, as this would be a kind of a bummer of a week for video games to be totally outlawed. (That's probably not going to happen.) Update: Though the Supreme Court was expected to rule this week, it looks like they'll be holding their decision for a later date. The SCOTUS session ends the week of June 27, and though the court could conceivably extend the session, a decision is expected before then.
US Supreme Court says companies can force arbitration on class-acting consumers
Before today, Californian consumers were free to ignore the arbitration clause tucked in the fine print of every AT&T service contract because state law had declared them unconscionable -- which kept the courthouse doors open to class-acting consumers. However, in a ruling that no doubt pleases AT&T and others of its ilk, the highest court in the land has stripped the states of their power to so avoid arbitration with its ruling in AT&T Mobility LLC v. Concepcion. In an opinion penned by Justice Scalia (pictured), the Supremes said that the Federal Arbitration Act was passed to promote arbitration's quick and easy dispute resolution, and they couldn't have California (or any other state) contradicting the will of Congress by allowing lengthy group litigation when parties already agreed to private arbitration. That means companies are free to force customers to arbitrate their claims individually instead of joining together to file high-dollar class-action lawsuits, no matter what state laws say. Guess those large-scale litigation lawyers will have to look elsewhere to find the funds for their next Ferrari.
Government says it's got i4i's back in Word patent dispute
As the US Supreme Court prepares to hear yet another appeal in the seemingly unending patent dispute between Microsoft and XML specialists i4i next month, some pretty influential folks are starting to take sides -- officially. Perhaps most notably, Acting Solicitor General Neal Kumar Katyal filed an amicus brief backing i4i and a previous US Court of Appeals decision to uphold the $290 million judgement against the software giant. Other big guns backing i4i with amicus briefs include DuPont, 3M, Johnson & Johnson, Procter & Gamble, and GE. Of course, Microsoft's getting a little help from its friends with official I-got-you-bro statements coming from Google, Apple, Toyota, and Walmart. The appeal is expected to hit the Supreme Court in April and has big implications for patent litigation -- specifically, it could give tech giants like Microsoft more guts to go after patents held by little guys like i4i.
ESA General Counsel Kenneth Doroshow moves on
The Entertainment Software Association has confirmed to Gamasutra that its General Counsel, Kenneth Doroshow, has left the organization to join forces with Burford Group, an investment advising firm based in Washington D.C.. You might remember Doroshow for his work in the Schwarzenegger v. EMA Supreme Court hearing last November, in which -- we think we can all agree -- the dude dunked all over the opposition's legal representatives. Like, he slam dunked it in their faces, and was all like, "Booyah," basically. We wish Doroshow the best of luck with his new position, and hope the remainder of his career is marked by multitudes of equally boombastic, totally nasty slamma-jammas.
Activision's George Rose calls out supporters of California violent game law
Activision Blizzard vice president and chief public policy officer George Rose has once again sounded off against attacks on his industry's First Amendment protections. This time, it's in the form of an editorial for the San Francisco Chronicle which tears down the supporters of AB-1179, the California law which prohibited the sale of "excessively violent" games to minors. The law will not go into effect in 2011 due to its repeal by the federal courts -- but that didn't prevent Rose from venting some steam regarding the former law's endorsers. "Sadly, supporters will accept nothing less than more laws, subbing for parents, that the state can't afford to enforce," Rose wrote. "So to whip up drama and hysteria where none justifiably exists, zealots supporting this movement cite the worst of the worst by harking back to video game dinosaurs like 1997's Postal." Rose argues that no other medium is judged based on one title, so doing so is "disingenuous" in the case of games. Ironically enough, you know what movie we'd use to pass judgment on the movie industry? Postal. Convenient, right?
iPad versus Kindle: even the Supreme Court can't decide (video)
Supreme Court judges are supposed to be some of the sagest dudes and ladies around, but even they can't agree on which e-reading device is best. Amazon's multimillion-selling Kindle is the weapon of choice for newly appointed Justice Elena Kagan, however old pro Justice Antonin Scalia prefers to battle the bulge of briefs using his iPad. Who will prevail in this titanic struggle? Probably good old paper, actually, as both are said to use their electronic devices as supplements to, rather than replacements for, the old fashioned reading method. See the video revealing these shocking facts after the break.
ECA rally before the Supreme Court violent game hearing captured on video
Though you've probably heard plenty of empirical evidence on Xbox Live to the contrary, gamers are capable of being angry about something without totally losing their minds. Check out the video below of the ECA rally held before Schwarzenegger v. EMA to see how cooler heads prevailed in D.C.
Supreme Court oral arguments now available as audio
You've skimmed the transcript. You've followed our coverage. Now, while we wait for something else to happen in the Schwarzenegger vs. EMA case before the Supreme Court, you can experience last week's oral arguments the way they were supposed to be experienced: by hearing them. The audio is now available if you want to spend an hour of your day hearing history in the making, or if you want to add your own NBA Jam guy commentary to your favorite Scalia shutdowns. In any case, if you're a video game player and, especially, an American (although any drop in US revenue from violent games is going to affect which games are marketed and even made, affecting everyone), it would probably be a good idea to pay attention to this case in some manner.%Gallery-106537%
The Lawbringer: Arguing about video games
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? One day, massively multiplayers will be center stage at the Supreme Court of the United States of America. We aren't there yet, but one day. Hell, we just got video games as a genre of entertainment on the lips of the Supreme Court justices. I'll talk about the Supreme Court case Schwarzenegger v. EMA later on, once we've got more to go on than the opening arguments, etc., and give you a rundown in the simplest terms possible about what is being argued over. For now, I'd like to talk about the language of video games being used in the case and get a little ranty about who gets to argue about video games.
Daily Show solves video game violence issue, saves Family Game Night
Okay, so maybe you were waiting to learn about this critically important Supreme Court video game case until you could hear The Daily Show's take on it. And yes, for that, you should be deeply ashamed. But here it is -- just after the break! In the clip, correspondent John Hodgman solves the violent video game problem through flattery, clever marketing and generous application of Ira Glass.
ESA confident its case was heard in Supreme Court argument
Following today's oral arguments session in the U.S. Supreme Court case Schwarzenegger v. EMA, representatives from the Entertainment Software Association (they're on the EMA side) held a conference call to discuss how they thought things went. ESA president Michael Gallagher was optimistic, saying, "Today was a historic day, not only for the computer and video game industry, but for the First Amendment." He added, "I think that in court today, you heard every single argument the industry has made, articulated not just by Paul [Smith] ... but by the justices themselves." "ESA is very, very proud of the work that was done by Paul," Gallagher said. "The argument today was very lively, the justices were very informed and the dialogue clearly established that video games are entitled to the same treatment as movies, music, books and other forms of entertainment." Jenner and Block counsel of record Paul Smith, who presented the EMA's arguments during today's hearings, was similarly optimistic. He offered his opinion that the representative from California's arguments didn't satisfy the "strict scrutiny" requirements needed to revoke video games' First Amendment protections. He added, "Though there's obviously a great deal of complexity in the whole thing -- and it's very difficult to come away knowing with any sense of confidence where the court's going to come down specifically -- we do feel pretty good about having all of our arguments aired, and getting a lot of traction." ESA general counsel and senior vice president Kenneth Doroshow echoed Smith's confidence, saying, "It was gratifying to hear all of the themes we had presented in our papers echoed by one or more justices at various times throughout the day. We feel very confident that our case was heard as thoroughly and carefully as it can be." "There's really no way to know for sure how this is going to come out," Doroshow said, "but we at least feel good that the best case possible was put forward for the industry and our position."
Our favorite SCOTUS quotes with commentary from the NBA Jam guy
We're still poring over the transcripts from today's Schwarzenegger vs. EMA case, and as we discussed it, we decided our enthusiasm for the judges' utter contempt for the Schwazenegger side's argument could only be summed up with quotes from NBA Jam announcer Tim Kitzrow. Enjoy.
Transcripts from Supreme Court's violent game case available now
You've read about the stakes, you've read about the procedure -- now it's time to read about exactly what went down in the hallowed halls of the U.S. Supreme Court earlier today, when representatives from the Entertainment Software Association and the state of California butted heads over the contentious Schwarzenegger v. EMA case. The Supreme Court's official website recently posted a complete transcript of the oral arguments from both parties -- you can pore over an embedded version of it below. The 72-page document is quite a read -- we'll update this post periodically with highlights from the proceedings. Click past the jump for more!
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.
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."
Swoon over lead counsel's arguments in Supreme Court violent games case
Maybe you mailed in a ColecoVision steering wheel to California senator Leland Yee, and while we're totally behind the sentiment, it's not going to make litigating the case against violent video games in front of the Supreme Court any easier. And that's why we're thrilled to introduce the newest feature on Joystiq: Joy Beat, where we just totally swoon over dreamy boys whose smarts (not to mention great looks) make the gaming world a better place. Our first Joy Beat honoree -- who would look great on a wall collage, just sayin' -- is Jenner and Block LLP Partner Paul M. Smith or, as you may know him, the lead counsel for the video game industry in the upcoming Supreme Court battle. Not sure if Smith has the chops? Give Joystiq alum (and Smith superfan #1) Kyle Orland's GamePolitics piece a read. Speaking last week at at an intellectual property forum at Chicago-Kent University (where were you?), Smith lays out his case with slam dunks like, "I've litigated nine cases in a row where states have tried to define the category nine different ways -- and they always lose when they make this case because violence is considered a perfectly appropriate and normal part of what we give our kids to see starting from a very young age." Guys, that's just where he starts! Why bother with the whole "court case" thing? Let's just give Smith his trophy, give video gaming its first-amendment-protection-for-life badge and get back to the Q4 avalanche of simulated murder!
Common Sense Media: 72 percent of parents support proposed Calif. violent game law
The non-profit, family-centric organization known as Common Sense Media recently published the results of a nationwide poll conducted by Zogby International, which asked 2,100 parents about their stance on the contested California law that would ban the sale of "offensively violent" games to minors. According to a press release from the group, 72 percent of respondents support the ban, while 75 percent would "rate the video game industry negatively when it comes to how they protect kids from violent video games." Said Common Sense Media founder James Steyer: "What we've learned from this poll is that parents want to be the ones who decide which games their kids play, not the video game industry." Of course, the Supreme Court isn't ruling on who decides which games kids play. The court's ruling on whether First Amendment protections can be waived for games deemed by ... someone to be too violent, formalizing a policy already adopted by major retailers into a California state law. Parents, as far as we know, still have the final say over what media their kids are allowed to consume -- not the video game industry, the ESRB, Governor Schwarzenegger or even the Supreme Court. Then again, when you support your position with videos like the one posted after the jump (the link to which was included in Common Sense's press release), we can understand why parents might lose the equanimity required to make that distinction.
