ESA Brief Rips California Law As Threat To Free Expression

ESA Brief Rips California Law As Threat To Free Expression

Blasting a California statute regulating sales of very violent video games as a threat to the freedom of creative expression, the Entertainment Software Association today asked the US Supreme Court to strike down the law once and for all.

The law, which sets penalties for selling or renting titles with especially violent content to minors, “threaten[s]freedom of expression not just for video games, but for all art forms,” ESA president Michael Gallagher said in a statement accompanying the brief filed today with the high court. “It would also tie up our courts in endless debates about what constitutes acceptable creative expression in our media. It protects no one and assaults the constitutional rights of artists and storytellers everywhere.”

The ESA is the leading group representing the video games industry in the United States. It also established the Entertainment Software Ratings Board in 1994, responsible for rating and classifying video games according to age appropriateness.

The ESA’s brief argues that California’s law fails to meet the “strict scrutiny” precedent the Court established in reviewing “content-based restriction” of free speech. Namely, the government must show that such a law serves a “compelling state interest”, the law is necessary to serve the interest, and it is the least restrictive means of doing so. A federal court and federal appeals court have found the law falls short.

The ESA’s brief points to the ESRB as a less restrictive means of ensuring that violent or mature content stays out of minors’ hands. It also says that California knows its law can’t pass the “strict scrutiny” test, so it is appealing for a new category of expression that isn’t constitutionally protected, one based on violent content.

That appeal is unconstitutionally vague with ramifications far beyond its own jurisdiction, the ESA argues in its brief. They have “no stopping point because so many expressive works contain depictions of violence… that could be deemed offensive to minors”.

Verbal arguments in Schwarzenegger v Entertainment Merchants Association (a California trade group unrelated to the ESA), will be heard on November 2. To read California’s argument defending its law, see this examination Kotaku published in June.


  • I still haven’t actually figured out what’s so horrendous about prohibiting minors from buying any sort of violent media – videogame or no. There are classifications in place, there needs to be an incentive to actually adhere to the rules. If a mother ends up buying some violent game for their child, that’s their choice. The thing is that if you allow kids to buy that stuff on their own, parents are out of the loop.

    It doesn’t matter that parents are usually to uneducated to understand the ratings system as far as I’m concerned.

    All I know is I wouldn’t want my child being able to go in and buy a violent game without me knowing about it – it seems like common sense, but maybe I’m missing something. Once they reach a certain age, I’m more than happy for them to make their own decisions. But a minor is a minor – the law says they aren’t capable of making proper judgment in their own lives so why should we think they can make correct decisions about what content to expose themselves to?

  • WTF ESA?! This kind of system WOULD be useful!

    It’s the lack of fines for selling to minors that HELPS gaming get trashed!

    “Billy got sold Aliens VS Predator(for example)with no problem” is a common story.

    (Hell, it’s how I rented CLERKS and TOTAL RECALL – both R18 – as a TWELVE YEAR OLD from Blockbuster!)

    Here we need MORE FINES for selling/renting to minors, and R18 to show just how full bore some games ARE!
    (Manhunt, Aliens VS Predator among many others are so full of blood and guts it’s insane to label it only MA15.)

    On a side note, isn’t it ironic that Arnie is helping this bill, when his career likely had MANY under age kids see him in Commando, Total Recall or The Running Man?

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