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The Game Industry Response in Schwarzenegger v. EMA

Tom Buscaglia, The Game Attorney, discusses the ins and outs of the US Supreme Court case that could seriously impact our industry.

Tom Buscaglia, Blogger

September 11, 2010

4 Min Read

Having taken the time to read through the Respondent's brief in the Schwarzenegger v. EMA case, I figured a post was in order in case there were some folks out there curious about WTF is going on. The Supreme Court is reviewing the lower court rulings that found the California law restricting the sale of violent video games to minors to be invalid because it was in a violation of the First Amendment guarantee of free speech. The Supreme Court does not have to hear cases and selects only a small number of cases for review each year. Usually these are cases where there have been differing results on the same issue among the US Circuit Appeals Courts. In this case, each and every time this issue has been reviewed by a Circuit court of appeals, statutes restricting the sale of violent video games to minors has been found to be invalid. The question of why the Court accepted this case has been the subject of discussion among industry lawyers.

Some think that the reason was that the Court wanted to put this issue to rest once and for all because once the Supreme Court rules on an issue, it is pretty much done. But then, 7 or 8 consistent appellate court ruling pretty much does the same thing. The concern is that the Supreme Court may have seen some merit in the effort to treat games different that movies and books and regulate their distribution in a manner that is not applied to other mediums. This is exactly what the California law attempted to accomplish. Considering the composition of the court and the stakes, it is no wonder that the industry took this very seriously. After all, any restriction on the sale of games or effort to treat game as "second class" citizens on the marketplace of ideas, entitled to less protection that other form of entertainment media, would have dire effects on our industry going forward.

The Respondents Brief submitted by counsel for the EMA and ESA Friday is pretty much a masterpiece. If you're interested in reading it in it's entirety you can find it HERE. In addition to the Brief , Respondents submitted six games into the record: Medal of Honor: Frontline, God of War, Tom Clancy’s Rainbow Six 3, Jade Empire, Resident Evil IV, and Full Spectrum Warrior. Respondents also submitted videotapes of more than two-and-a half hours of excerpted game play from the six games and have lodged a DVD with the Court containing the game play excerpts. The Petitioner (California) only discussed one game (Postal2) and submitted about 5 minutes of video of excerpts of gameplay and you can guess what that looked like. Apparently, the implied satire inherent in the over the top violence in Postal 2 was lost on "The Terminator."

Here's an outline of the Argument set out in the Respondents Brief from its Table of Contents that will give you an idea of the scope of the issues addressed:


I. Video Games, Including Those That Depict Violence, Are A Form Of Expression Fully Protected By The First Amendment.

- A. Video Games Are Fully Protected Expression.

- B. Depictions Of Violence Are Protected Expression.

II. The Court Should Reject The State’s Unprecedented Plea To Carve Out First Amendment Exceptions For “Offensively Violent” Video Games.

- A. The Government Does Not Have Unfettered Power To Ban Speech To Minors.

- B. California’s Claimed Right To Censor “Offensively Violent” Expression Directed At Minors Is Historically Baseless And Constitutionally Improper.

- C. There Is No Support For The Claim That Minors’ Access To Violent Video Games Is A Significant Societal Problem Justifying Exempting Them From Constitutional Protection.

- - 1. California Has Failed To Show That Parents Need Government Involvement In Monitoring The Video Games Their Children Play.

- - 2. California Has Also Failed To Show That Violent Video Games Are Harmful To Minors.

- - 3. Instead Of Identifying A True Harm To Minors, California Is Repeating The Same Failed Arguments That Have Been Used In The Past To Attack New Forms Of Expression.


- A. California Cannot Show That The Act Materially Advances A Compelling Interest.

- B. The Act Is Not Narrowly Tailored.

- C. The Act Is Not The Least-Restrictive Means Of Accomplishing California’s Goals.


- A. This Court Has Repeatedly Struck Down As Vague Statutes That Purport To Regulate Offensive Expression.

- B. The Act Is Inherently Vague.

That should give you a basic idea of the scope of the Argument...but it's no substitute for reviewing the entire 78 page brief.

In addition to the main briefs of the parties, verious briefs by interested parties on either side of the case are being prepared and filed.  I have been involved with the counsel drafting the IGDA and AIAS Amicus, "friend of the Court," brief which will be filed on Monday. I'll update this post with a link to that once it is filed.

Argument in this case is set for November 2, at 10 AM...after which we will all wait, with baited breath, until the opinion is issued, which can take from weeks to months to issue.

GL & HF!

Tom B

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Tom Buscaglia


Tom Buscaglia, The Game Attorney, provides game industry business and legal consulting services. Tom is a principal in the law firm Thomas H.Buscaglia, P.A. and is the President of Dev-Biz, Inc., with offices in the Seattle, Washington area as well as Miami, Florida. He is admitted to practice in Florida and the District of Columbia, as well as in all Federal Trial and Appellate Courts, including the United States Supreme Court. Tom is dedicated to the computer and video game industry, assisting developers around the world with legal and business matters since 1991. Tom is on the Board of Directors of the International Game Developers Association and Chairs the IGDA Foundation. Tom is a perennial presenter at the Game Developers Conference and other Game Industry conferences throughout the world. More info on Tom is available on his web site www.GameAttorney.com.

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