Brown v. EMA (formerly VSDA v. Schwarzenegger)

On June 27, 2011, the United States Supreme court issued its landmark ruling in the Brown v. Entertainment Merchants Association case. Brown v. EMA involved a challenge to a 2005 video game restriction law.

1.     What did the California video game law require?
2.     What were the legal arguments in the Brown v. EMA lawsuit?
3.     What was the ruling in Brown v. EMA?
4.     Does EMA support the sale or rental of "Mature"-rated video games to persons under age 17?
5.     Then why did EMA oppose the California video game law?
6.     Is EMA bothered by the violence and sex in some of these games? How can EMA support these games?
7.     Are retailers really enforcing the video game ratings?
8.     What can parents do to ensure that the video games brought into their homes are appropriate for their family?

What did the California video game law require?

Chapter 638, California Statutes of 2005, was signed into law on October 7, 2005 and was scheduled to go into effect on January 1, 2006. It would have restricted the sale or rental to anyone under the age of 18 of computer and video games that are classified as "violent video games" if the depictions of violence in games were offensive to the community or if the violence depicted was committed in an "especially heinous, cruel, or depraved" manner. Under the law, a "violent video game" is a video game "in which the range of options available to the player includes killing, maiming, dismembering, or sexually assaulting an image of a human being." Chapter 638 contained provisions that purport to define offensiveness and "especially heinous, cruel, or depraved."

Game manufacturers and distributors would have been required to label covered games with 2" x 2" stickers displaying the numeral "18" on their front covers. Retailers would have been permitted an affirmative defense to a charge of violation of Chapter 638 if the game were not so labeled. Chapter 638 was authored by Assembly member (now State Senator) Leland Yee (San Francisco).

EMA lawsuit?What were the legal arguments in the Brown v.

On October 17, 2005, the Video Software Dealers Association (now the Entertainment Merchants Association) and the Entertainment Software Association filed a lawsuit to invalidate Chapter 638 as unconstitutional. Specifically, the plaintiffs' complaint asserted that Chapter 638's restriction on the sale or rental of certain violent video games violated the plaintiffs' rights under the First and Fourteenth Amendments to the U.S. Constitution to freedom of expression and equal protection of the laws and was unconstitutionally vague.

The lawsuit was filed as Video Software Dealers Association v. Schwarzenegger in the U.S. District Court for the Northern District of California (No. C05-4188 RMW (RS)). The primary defendants were then-California Governor Arnold Schwarzenegger and California Attorney General Edmund G. Brown, Jr.

The name of the case was changed to Entertainment Merchants Association v. Schwarzenegger after the Video Software Dealers Association and the Interactive Entertainment Merchants Association merged to form EMA in 2006. In the U.S. Supreme Court, the case became Brown v. EMA, as Attorney General Brown had succeeded Schwarzenegger as Governor of California.

What was the ruling in Brown v. EMA?

On August 6, 2007, a federal district court judge granted a permanent injunction, barring enforcement of the California video game law. The judge agreed with EMA and the Entertainment Software Association that the law violated the First Amendment.

Subsequently, the State of California appealed the District Court ruling to the U.S. Court of Appeals for the Ninth Circuit. On February 20, 2009, the appellate court issued a ruling that affirmed the lower court decision that the law is unconstitutional.

In May 2009, the state of California requested that the U.S. Supreme Court review the Ninth Circuit's decision. The Supreme Court granted the state's request and heard oral arguments in the case on November 2, 2010. The briefs submitted to the Supreme Court in the case and the argument transcripts are available on .SCOTUSblog

On June 27, 2011, the Supreme Court issued its ruling in the Brown v. EMA case, which was a resounding victory for EMA and the Entertainment Software Association. A majority of five justices, applying the traditional “strict scrutiny” analysis used for speech restrictions, found that the law violated the First Amendment’s guarantee of freedom of expression. The majority opinion agreed with EMA and the Entertainment Software Association on practically every argument the associations put forth. Two other justices concluded that the law should be overturned because it was impermissibly vague.

The key points in the majority ruling were:

1.     Video games are protected speech.

2.     First Amendment protections do not depend on the nature of the medium.

3.     Legislatures cannot create new categories of unprotected speech by concluding that the speech is “too harmful to be tolerated.”

4.     Legislatures cannot treat depictions of violence as a form of obscenity.

5.     Minors have First Amendment rights (although those rights are not as expansive as the First Amendment rights of adults).

6.     Since the California law imposed a restriction on the content of protected speech, it was subject to the highest level of judicial scrutiny (“strict scrutiny”), and the law could not meet that standard.

7.     Because the statute failed to restrict depictions of violence in other media, such as books, television, and movies, the statute was “wildly underinclusive,” which was constitutionally fatal.

8.     The statute was also underinclusive because it allowed parents, grandparents, aunts, and uncles to purchase the purportedly “dangerous, mind-altering” video games for minors.

9.     The state could not demonstrate that its purported justification for the law – to assist parents – was warranted.

10.  The ESRB video game ratings system and retailers’ voluntary enforcement of the ratings provide an effective alternative to state regulation.

11.  The statute was “vastly overinclusive” because many parents may not object to their children purchasing the covered games.

Does EMA support the sale or rental of "Mature"-rated video games to persons under age 17?

No. EMA does not believe that any child should be able to buy or rent a video game that their parents believe are inappropriate for them. EMA members and other video game retailers support the video game ratings of the Entertainment Software Rating Board (ESRB) and have made a "Pledge To Parents" not to sell or rent a video game rated "Mature" (M) to anyone under age 17 absent parental authorization.

Then why did EMA oppose the California video game law?

EMA opposed the California video game law (and other similar laws) because:

1.     They are unnecessary in light of the voluntary ratings education and enforcement programs of video game retailers and would conflict with these programs, leading to consumer confusion;

2.     Federal courts have consistently ruled that these types of laws violate the First Amendment of the U.S. Constitution by placing legal restrictions on the sale or rental to minors under age 18 of certain video games based on depictions of violence in the games; and

3.     They would provide no meaningful standards to know which materials are covered.

Is EMA bothered by the violence and sex in some of these games? How can EMA support these games?

Certainly some of these games go beyond the personal comfort level of individual EMA members. But we must recognize that "Mature"-rated games are made for adults. It is not appropriate for EMA to tell any adults that they shouldn't play these games.

We also must keep in mind that the video game industry itself has said these "Mature"-rated games are not appropriate for persons under age 17. Retailers support those ratings decisions. That's why retailers encourage consumers to look at the game rating and they voluntarily enforce the "Mature" rating. They won't sell or rent them to persons under age 17.

Parents are looking for help. They are not looking for government to tell them what's "right" for their children and what's "wrong." And they certainly are not looking for the government to infringe their First Amendment rights and those of their fellow citizens.

Are retailers really enforcing the video game ratings?

The latest findings of the Federal Trade Commission (FTC) on the ability of minors to purchase Mature-rated video games show a substantial increase in self-regulation, particularly by major retailers. The 2001 FTC survey found that children it sent into video game stores to buy Mature-rated games were turned down 87% of the time. Retailers have improved their enforcement of store policies restricting the sale of Mature-rated games by approximately 450% - from a 16% to an 87% turn-down rate - since the FTC's first shopping survey in 2000, and the 87% turn-down rate for Mature-rated video games is the highest enforcement level ever found by the FTC for any entertainment product. Retailers are clearly giving attention to ratings enforcement.

In addition, retailers educate parents about video game ratings through posters, brochures, shelf talkers, kiosks, other in-store signage, and their websites. Placement of these materials varies, but video retailers try to place them so that they are prominent and noticed by parents. Some even add their own advisories. The most recent survey of retailer signage conducted by the Entertainment Software Rating Board, which covered hundreds of  retail locations, found that 85% of the stores had signs explaining the video game rating system.

What can parents do to ensure that the video games brought into their homes are appropriate for their family?

Given that parents are present 83% of the time when children purchase or rent video games, EMA encourages parents to follow its LOOK-PLAY-LIMIT-CONTROL guidelines to make sure that their video game choices are the right ones for their family.

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