ESA: California games law attacks free speech

ESA: California games law attacks free speech

By Stuart Richardson

November 3rd 2010 at 10:08AM

US trade body reacts to yesterdayâ??s hearings, declares California law unconstitutional

The Entertainment Software Association, the US trade body for the video games industry, has declared the contentious California law to restrict video games sales an unconstitutional assault on free speech.

Having funded much of the ongoing legal action to see the law torn up, the group was keen to react to yesterday’s oral hearings in the Supreme Court, which it saw as a success for the video games industry at large.

"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."

The ESA went on to point out that for the statute to be successful, the state of California 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," said Paul Smith, of the law firm Jenner & Block, which represented the ESA in the oral hearings.

"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 was keen to sing the praises of the existing ESRB video games rating system, which it said was lauded by the Federal Trade Commission as the gold standard of rating systems. It also mentioned parental controls available on all video games consoles, saying that these measures did 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."

The ESA concluded by stating that it believed any attempt to recognise an exception to the First Amendment would create a new category of unprotected expression that would be impossible to define. This, it argued, would perhaps lead to further content restrictions in other types of media.

“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 ESA said.