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Video Game Industry Defends First Amendment Before U.S. Supreme Court

California Law Unconstitutional, Sets a Dangerous Precedent for All Media, Group Argues

November 2, 2010 – Washington, DC –The video game industry today asked the United States Supreme Court to uphold the rulings of two lower courts and find unconstitutional a 2005 California law restricting the sale and rental of computer and video games.

The Entertainment Software Association (ESA), the trade association representing computer and video game publishers, argued that the law imposes unprecedented restrictions on free speech rights, and would have significant consequences for other forms of artistic expression.

“The California statute is unnecessary, unconstitutional and would amount to unprecedented censorship of our First Amendment-protected speech,” said Michael D. Gallagher, president and CEO of the ESA. “For these reasons, a highly respected group of 182 civil rights organizations, elected officials, business groups, entertainment industry leaders, and social scientists filed amicus briefs asking the Court to strike down this law.”

Because the statute attempts to restrict free speech on the basis of content, the state must prove a compelling government interest that is addressed by the law and must also prove that the law provides the narrowest possible means of furthering that interest.

Paul Smith, of the law firm Jenner & Block, represented ESA in the oral argument before the Court. “The California law fails on both counts,” Mr. Smith argued. “As lower courts, including the Ninth Circuit Court of Appeals, repeatedly concluded, and as 82 social scientists with expertise in psychology, psychiatry, neuroscience, criminology, media studies, and communications recently affirmed, no scientific evidence exists of a causal link between violent video games and real-life violence or psychological harm.”

The ESA also argued that there are less restrictive means of ensuring that the computer and video games children enjoy are parent-approved. The Entertainment Software Rating Board rating system, lauded by the Federal Trade Commission as the gold standard of ratings systems, provides parents with the information they need to make informed purchasing decisions. Also, the parental controls available on all video game consoles sold today give parents the ability to block games they do not want their children to play. Furthermore, these measures do not limit the constitutionally-protected rights to free speech of all Americans.

“Knowing the California law fails strict scrutiny, the state seeks a free pass by asking the Court to carve out an entirely new category of unprotected expression based on violent content,” said Kenneth L. Doroshow, general counsel of the ESA. “But such an exception, which has no historical basis or legal precedent, would know no limits and would inevitably lead to a stifling of creative expression across all forms of media, not limited to video games.”

Never before has the Supreme Court recognized an exception to the First Amendment’s protections for speech on the basis of its violent content. As such, the ESA argued today, the limits of this new category of unprotected expression would be impossible to define, logically, and perhaps inevitably, leading to further free speech restrictions in movies, television, books, music and even in the reporting of everyday news. It is for this reason that groups such as the Motion Picture Association of America, the National Association of Broadcasters, and the Society of Professional Journalists are among the many groups and individuals who have urged the Court to reject the law.

The Entertainment Software Association is the U.S. association dedicated to serving the business and public affairs needs of companies publishing interactive games for video game consoles, handheld devices, personal computers, and the Internet. The ESA offers services to interactive entertainment software publishers including a global anti-piracy program, owning the E3 Expo, business and consumer research, federal and state government relations, First Amendment and intellectual property protection efforts. For more information, please visit www.theESA.com.

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