ESA: California Failed to Prove Argument in 'Violent Video Games' Case

Supreme Court

I'm just off a conference call with Entertainment Software Association CEO Michael Gallagher in which he and others discussed how things went during today's arguments before the Supreme Court. The case, as you've probably heard, involves a California law passed in 2005--twice ruled unconstitutional by lower courts--that bans the sale of what it describes as "violent video games" to minors, and fines stores that do so anyway $1,000 per incident.

Gallagher was upbeat about the court's reaction to the ESA's position and read it as combative toward the law's proponents due to vague definitions and suspect research claims that violent video games cause deviant behavior in minors.

"Today was a historic day, not only for the computer and video game industry, but for the First Amendment," said Gallagher. "12 times in eight years we've had this issue raised about whether video games are speech, and if so, to what degree of protection are they entitled to, and I think that the court today, you heard every single argument that the industry has made articulated not just by Paul [Smith of Jenner Block, the ESA's advocate before the court]...but by the justices themselves."

Gallagher then outlined what the ESA views as the legal tests both the law and California's counsel before the court failed to pass.

"The state law, such as what California passed to restrict speech, in this case for video games, are subject to strict scrutiny," said Gallagher. "That requires that they demonstrate a compelling public interest that's served by proposed law, and that the proposed law is the least restrictive means of achieving the intended goal."

"In our view, the argument this morning doesn't change our conclusion that the state of California has not proven either a compelling government interest, or that they've established that the means they're proposing are the least restrictive."

Turning to the question of research cited by the California law that argues "violent video games" cause deviant behavior in minors, Gallagher thinks the justices weren't buying it.

"In particular, we're very...we thought it was very clear to a number of the justices that 82 social scientists have filed a legal brief with the court urging it to reject California's law because it's...as they quote, it has not produced substantial evidence that violent games cause psychological or neurological harm to children."

Besides, said Gallagher, "when you look at the least restrictive means component, the Entertainment Software Rating Board is a proven system that parents rely upon."

Gallagher's certainly not wrong about that. According to a 2009 Peter D. Hart Research Associates study, nearly 90% of American parents with children who play games are aware of the ESRB's ratings and use them.

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