The fear, according to the ESA, is that video game stores will stop selling certain titles all together as "they won't know what titles fall under a particular state's laws and which don't." Were this situation to take place, it is possible developers would begin to soften its content to fall within vague government regulations in order to make it to store shelves.
"Imagine walking into your local game retailer and finding out they don't sell games you want because they're worried about government intervention. This isn't hyperbole; it's a very real scenario that could happen if California succeeds," the ESA's Rich Taylor wrote in a post on the Official PlayStation Blog.
To combat this possible scenario, the ESA recommends gamers of voting age register at the Video Game Voters Network, a site set defending the video game industry throughout its never-ending legal battles for legitimacy. Recently, comic book legend Stan Lee addressed his concerns for the video game industry in a lengthy post on the VGVN website. In it, Lee discusses the mainstream reaction to his created works in the 1950s. Comic books, Lee explains, were at the center of its own "national hysteria," saying opponents of the industry claimed the medium had a "dangerous effect" on youth and contributed to "juvenile delinquency."
The comic book industry lost its initial battle for legitimacy as a Senate subcommittee postulated the country could not "afford the calculated risk involved in feeding its children, through comic books, a concentrated diet of crime, horror and violence." Eventually, the State of Washington made it a crime to sell comic books without a license, while the city of Los Angeles made the sale of all comics completely illegal.
In fighting the upcoming battle at the Supreme Court, the ESA announced that over 180 leading First Amendment experts, non-profit organizations, associations, researchers, national organizations, and social science experts filed briefs in favor of the ESA's position on Friday, September 17. The amicus briefs urge the U.S. Supreme Court to uphold the Ninth Circuit Court of Appeals ruling, which originally struck down the California state claim in 2005, endorsed by Governor Arnold Schwarzenegger.
According to Game Politics, arguments made in the amicus briefs approach the situation from very different angles. Some make the more common argument that restricting the video game industry is tantamount to throwing First Amendment rights out the window, others claim the proposal is an overreach by the state of California, and others say the law will put a burden on law enforcement who should focus on catching "real criminals."
The ESA has posted over 20 of the amicus briefs in favor of its position and the video game industry itself. Included in the listing are developer id Software's arguments [PDF link], which focus, in part, on how the game industry is influenced in some aspects of design by the film industry and therefore should be given the same consideration.
California isn't the only state fighting the game industry. Connecticut, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Texas and Virgina have all filed amicus briefs in favor of California's proposed law.
Although the argument appears to only focus on the sale of video games to minors, its execution and ultimate definition may distort the freedom developers have when creating titles. This isn't only about saying children shouldn't play mature titles--the industry knows that and has a rather successful, self-imposed rating system in place to stop that from happening--this is about limiting "questionable" content from all games to all gamers. The danger with this concept is the simple question, "Who decides what is and isn't questionable?" The vagueness of that potential answer puts the danger in the hands of retailers who will effectively have the government's foot on their throat as they attempt to sell software. In order to protect themselves, it's possible retailers will refuse to sell titles with content it feels may catch disapproving glances from U.S. government; thus giving the government power to shape content made by game developers.
While this is not the first time lawyers will argue on both sides of the industry's future, it is the first time a court of such high standing will hear the arguments.
Oral arguments for Schwarzenegger v. Entertainment Merchants Association/Entertainment Software Association begin at the U.S. Supreme Court on November 2.
[Update] The Academy of Interactive Arts & Sciences (AIAS) and International Game Developers Association (IGDA) are among the organizations that have submitted amicus briefs favoring the ESA's position against the proposed California state law. "Video games in all of their iterations are deserving of the same protections our Constitution has provided film, television, music and literature," AIAS president Joseph Olin said in a statement on the matter.
There is also an amicus brief in favor of the ESA's position from the State Attorneys General [PDF Link] of Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah and Washington State.