Schwarzenneger

The Entertainment Merchant Association

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VSDA v. Schwarzenegger
FAQs

What does 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 restricts 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 are offensive to the community or if the violence depicted is 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 contains provisions that purport to define offensiveness and "especially heinous, cruel, or depraved."

Game manufacturers and distributors are required to label covered games with 2" x 2" stickers displaying the numeral "18" on their front covers. Retailers have an affirmative defense to a charge of violation of Chapter 638 if the game was not so labeled.

Chapter 638 was authored by Assembly member (now State Senator) Leland Yee (San Francisco).

What does the VSDA v. Schwarzenegger lawsuit allege?

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 asserts that Chapter 638's restriction on the sale or rental of certain violent video games violates 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 is 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 original defendants were California Governor Arnold Schwarzenegger, California Attorney General Bill Lockyer, Santa Clara County (CA) District Attorney George Kennedy, San Jose (CA) City Attorney Richard Doyle, and Ann Miller Ravel, County Counsel of Santa Clara County (CA). (Current Attorney General Edmund G. Brown, Jr. has been substituted for Bill Lockyer.)

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 do you oppose the California video game law?

EMA opposes 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.

Aren't you bothered by the violence and sex in some of these games? How can you 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 us 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 shows a substantial increase in self-regulation, particularly by major retailers. The FTC found that children it sent into video game stores to buy Mature-rated games were turned down 80% of the time. Retailers have improved their enforcement of store policies restricting the sale of Mature-rated games by 400% - from a 16% to a 80% turn-down rate - since the FTC's first shopping survey in 2000. Retailers are clearly giving increased attention to training of employees concerning 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 more than 800 retail locations, found that 77% 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.

What is the status of VSDA v. Schwarzenegger?

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 VSDA (EMA) and the Entertainment Software Association that the law violates the First Amendment.

EMA's reaction to the ruling is available here.

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.

As the court stated in its conclusion:

As the Act is a content based regulation, it is subject to strict scrutiny and is presumptively invalid. Under strict scrutiny, the State has not produced substantial evidence that supports the Legislature's conclusion that violent video games cause psychological or neurological harm to minors. Even if it did, the Act is not narrowly tailored to prevent that harm and there remain less restrictive means of forwarding the State's purported interests, such as the improved ESRB rating system, enhanced educational campaigns, and parental controls.

The court also struck down a provision of the law that would have required games that meet the law's definition of a "violent video game" to be labeled with an "18" sticker. In light of its ruling that the sale of such games to minors cannot be legally prohibited, the court found that the "18" sticker would not be factual.

On May 20, the state of California requested that the U.S. Supreme Court review the Ninth Circuit's decision. EMA's reaction to this move is available here.

The state of California's has filed a brief in support of its petition for review, and EMA and the Entertainment Software Association have responded with a brief in opposition to the state's request. The Supreme Court is scheduled to decided whether to take up the case at its September 29 conference.