SCOTUS ruling on California game law expected Monday

The Supreme Court is expected to rule on Brown v. EMA next week, most likely on Monday. The case could have a large impact on the video game industry, and determining if games are protected by the First Amendment.


The Supreme Court of the United States is expected to rule on Brown v. EMA (formerly Schwarzenegger v. EMA) next week, most likely on Monday. The case extends from a 2005 California law drafted by state senator Leland Yee, which restricts the sale of violent video games to anyone under 18, and would require special labels on offending games.

The law was suspended, then struck down, in a California district court due to a violation of the First Amendment. California appealed, but it was struck down again by the Ninth Circuit Court. The Supreme Court agreed to hear the case, which went to the SCOTUS bench in April 2010.

The law attempted to use a variation of the Miller Test, which can be used to circumvent the First Amendment if a state can provide a compelling government interest in doing so, and in cases of obscenity. The Ninth Circuit Court rejected this argument, claiming that a compelling interest hadn't been shown. Obscenity laws generally refer strictly to sexual content, not violence.

When argued before the Supreme Court, Justice Scalia noted that obscenity law has never applied to violence, and expressed concerns about the First Amendment being undermined. Justice Ginsberg asked why video games are set apart from other forms of mass media like movies and comic books. The Justices seemed skeptical of the case on the whole, but grilled the EMA side on where one draws the line with protecting violent content.

While it is a state case, the ruling has the serious potential to impact the video game industry as a whole. A decision in the EMA's favor would grant video games the protection of the First Amendment from the highest US court, while a decision for California could inspire other states to draft similar laws. We'll be watching for the results.

From The Chatty
  • reply
    June 24, 2011 11:30 AM

    Steve Watts posted a new article, SCOTUS ruling on California game law expected Monday.

    The Supreme Court is expected to rule on Brown v. EMA next week, most likely on Monday. The case could have a large impact on the video game industry, and determining if games are protected by the First Amendment.

    • reply
      June 24, 2011 11:38 AM

      Since the same post comes up every time this is discussed let us just get it out of the way now. Movie theaters are not required by law to enforce ratings which is what this law is trying to do for games.

      • reply
        June 24, 2011 11:54 AM

        Now that this has been stated, we are free to punch anyone who posts that argument in the nuts. Repeatedly.

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        June 24, 2011 1:27 PM

        This isn't the issue, at least, not at the heart of it.

        SCOTUS has ruled that it is perfectly allowable for some types of speech to not be fully protected, and that states have a prevailing right to limit that speech (read: porn).

        That's likely all fine and dandy, but the CA law that is at the center of the contest attempted to called "violent video games" as unprotected free speech and thus can be regulated. This isn't necessary bad in of itself, but the bill is *specifically vague* on what "violent" is for a video game. Interpreted narrowly, we're talking your Postal's and the like, but interpreted broadly (as was made at oral arguments for this), games like Mario and Sonic where cartoon violence is employed could suddenly become regulated speech.

        And that brings it around to your point, is that this is not a factor at all in any other entertainment industry. No one cries foul to anything short of extreme violence on the screen and certainly isn't calling for law-enforced regulations to prevent minors from seeing it. It is treating the video game industry as a completely different type of media.

        Which is why nearly every expert I read on this case says the SCOTUS is going to rule in favor of the EMA and against the CA law, simply because of the vagueness of "violent" and that applying a standard to one part of an industry and letting another slide is BS.

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      June 24, 2011 11:53 AM

      Let's hope that whole First Amendment thing wins out, although given the current makeup of the court I'm slightly worried.

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        June 24, 2011 12:05 PM

        I've been following this case very closely for the past year - and was actually in the court during oral arguments. I'm more than slightly worried.

        While justices seemed to side with the video game industry during those arguments, they've taken more than 7 months to issue a ruling. And the rulings that have been coming lately (I've been watching as they're released) have all been split decisions - often close ones.

        Part of what could be taking so long is the ruling of this case could impact pornography laws. Or it could just be that justices are debating whether it's a First Amendment issue or just unclear wording, which would give CAlifornia (and other states) the green light to try to issue similar laws with slightly more exact wording.

        Backgrounder piece I wrote for Gamasutra about what was taking so long with this one:

        • reply
          June 24, 2011 1:45 PM

          Why haven't you changed your shack name yet?
          Maybe MorrisTheCat ?

          • reply
            June 24, 2011 2:54 PM

            It's more fun to mess with people's minds. Besides... what if I started freelancing for CNN? Then I'd just have to change it back.

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          June 24, 2011 2:39 PM

          Great article Chris, thanks for the link! I'm hoping that in the end they rule on the side of free speech, although after reading your comment and article I'm more than a bit concerned. I wasn't aware of how this case has become wrapped up with pornography laws, so that part was extremely interesting to me.

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        June 24, 2011 12:38 PM

        Generally they've had a great track record for protecting freedom of speech. Even so far as to give it to corporations and protect animal crushing videos.

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        June 24, 2011 1:22 PM

        Video games represent freedom of speech for corporations, and Scalia, Thomas, etc are all about that

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          June 24, 2011 1:27 PM

          yep. we just saw how texas is pumpin with video game bucks, the lobbyists are in full swing on this one. no way they can't support that type of business.

          with sTeve handing out $12k quarterly bonus checks... yeah. video games are big business.

    • DM7 legacy 10 years
      June 24, 2011 12:31 PM

      I hope so much that they rule in the EMA's favor. Preliminary thoughts that they are going to. Hopefully this is the case.

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      June 24, 2011 12:36 PM

      With the protections this Court has shown for free speech, I'd be shocked to see it go the other way.

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        June 24, 2011 12:57 PM

        I think the whole "slippery-slope" issue with what this could mean for other self regulated industries(Movies, for example) is something I don't think the SC wants to deal with. Also, there is plenty of case precedent to show they will likely rule in the favor of the ESA. However, you never know and something drastic could happen.

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        June 24, 2011 1:15 PM

        They are also pretty pro-business so that's another one in favor of throwing out the law.

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