On November 2, 2010, the Supreme Court will hear arguments in the matter of Schwarzenegger v. EMA. This case is about a California law that bans the sale of certain violent video games to minors. This is an historic moment for video games – as this is the first time the Supreme Court has ruled on a statute directed to the video game industry.

In today’s installment, the positions of the Entertainment Merchant Association (EMA) and Entertainment Software Association (ESA) position are summarized.  Both EMA and ESA are referred to here as ESA.  As the Governor of California, Arnold Schwarzenegger’s name appears as the Appellant.

For a summary of the State of California’s positions in this action, click here.

California’s Statute

This dispute arises over the enforcement of California Civil Code sections 1746-1746.5, which prohibits the sale of violent video games to minors under 18.

The statute defines a “violent video game” as one that depicts “killing, maiming, dismembering, or sexually assaulting an image of a human being” in a manner that meets all of the following requirements:

(1) A reasonable person, considering the game as a whole, would find that it appeals to a deviant or morbid interest of minors;

(2) it is patently offensive to prevailing standards in the community as to what is suitable for minors, and;

(3) it causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

The statute does not prohibit a minor’s parent or guardian from purchasing or renting such games for the minor. There is a penalty of up to $1,000 per violation, which may be lowered in the discretion of the court.

First Amendment Challenge to the Statute

California’s statute was challenged by ESA in 2005. A U.S. District Court barred enforcement of the statute on First Amendment grounds. Thereafter, the Ninth Circuit Court of Appeals ruled that the statute is unconstitutional.

Summary of ESA’s Arguments

In sum, ESA argues that video games deserve the full protection of the First Amendment.  It contends that the violence portrayed in video games should not be subject to any different treatment under the Constitution than violence depicted in literature, movies, art, or comic books.  ESA’s own summary of its position is that “with or without elements of violence, video games are as fully protected by the First Amendment as every other mode of expression.”

ESA’s argument begins by placing video games in context.  ESA describes various types of video games – ranging from Red Dead Redemption to The Sims and FarmVille.  ESA’s approach is educational – an apparent attempt to show the Court that there are more types of video games available than the violent examples (like Postal II) described by the State of California in its brief.  ESA paints a picture of broad cultural acceptance of video games as a form of entertainment.

ESA describes the industry’s rating system administered by the Entertainment Software Ratings Board and highlights the high rate of voluntary compliance with the ESRB’s ratings system among developers and retailers.  In support of its argument that the ratings deter children’s access to mature-rated products, ESA cites a 2009 FTC study that found that the video game industry does a better job than the movie and music industries in policing access by minors to age-inappropriate content.

In support of its assertion that video games are entitled to “full-throttled First Amendment Protection,” ESA posits that:

California fundamentally distorts bedrock First Amendment principles when it suggests that video games are entitled to lesser protection because their interactivity increases the impact of their expression on the viewer. Plainly, the Government is not entitled to regulate speech on the ground that it is particularly effective at conveying its message.


Focusing on the target of California’s statute – violence in video games – ESA argues that “depictions of violence have never been considered a category of unprotected expression.” In this regard, ESA discusses the central role of violence in literature:

[W]hether it be the “Odyssey, with its graphic descriptions of Odysseus’s grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants;” or “The Divine Comedy with its graphic descriptions of the tortures of the damned; or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds.

Pushing back against California’s efforts to conflate violent material with obscenity, ESA distinguishes the two by citing Supreme Court precedent that “obscenity is limited to ‘works which depict or describe sexual conduct.’”

In response to California’s citation to several statutes barring violent expression, ESA claims that California is engaged “in an effort to manufacture a tradition of regulation of depictions of violence” and explains that the statutes cited by California are constitutionally unenforceable.

In response to California’s citation to studies linking violent video games with antisocial behavior, ESA argues that

the evidence that video games cause any real harm to minors is paltry at best. The research cited by California has been resoundingly rejected by every court to have looked at it, and it both underproves and overproves the State’s claims: it does not show that video games cause actual harm to minors, and it purports to find the same measured effects for a wide array of stimuli, including games designed for small children, television cartoons, or even a picture of a gun. If evidence of this sort were sufficient to justify treating expression as unprotected, the First Amendment would mean very little.


Addressing California’s position with a broad brushstroke, ESA explains that

history teaches that every new form of media is met with concern that it will undo the youth of the nation. Pulp novels, movies, and the Internet have all been subject to similar attempts at censorship, complete with purported social science support. In each case, this Court has refused to take the “starch” out of strict scrutiny review, and has treated the regulations as presumptively unconstitutional.

ESA concludes that, if the Supreme Court determines that California’s statute is Constitutional, a “nearly impossible” burden would be placed on retailers to determine whether any particular video game violates the law and that the “only rational response might well be to stop selling video games to minors altogether.”

Oral arguments on Tuesday, November 2, 2010, may shed light on the Court’s views on these issues.

About Us

Stephen Riden is a partner at Beck Reed Riden LLP, Boston’s innovative litigation boutique. Our lawyers have years of experience at large law firms, working with clients ranging from Fortune 500 companies to start-ups and individuals.  We focus on business litigation – including contract, copyright, trademark, unfair competition, and healthcare litigation – as well as labor and employment, trade secrets, noncompetes, and alternative dispute resolution.