Guest Editorial: A First Amendment Call To Arms

Guest Editorial: A First Amendment Call To Arms

Video gamers across the country are anxiously awaiting November 2 when the US Supreme Court will hear oral arguments in a case close to our hearts.

The case, Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association, involves a 2005 California law that seeks to restrict the sale and rental to minors of computer and video games that are determined by the state to contain “unacceptable” violence.

As two lower courts in this specific case and a total of 12 lower courts in similar cases concluded, computer and video games are First Amendment-protected free speech, entitled to the same protections as books, movies and other forms of artistic expression. Therefore, any attempt to impose a content-based restriction on games must demonstrate a compelling state interest that would be addressed by this restriction and apply the least restrictive means of achieving the state’s intended goal.

A compelling interest does not exist. California tried to argue that video games cause violent behaviour, but the argument was shot down faster than Master Chief takes down members of the Covenant. In fact, no scientific evidence exists to link video game violence to real world violence. This reality was acknowledged by the Ninth Circuit Federal Court of Appeals in its decision to strike down the California law and by 82 social scientists who filed a legal brief urging the Supreme Court to reject California’s statute.

Even if there was a connection between virtual and real-world violence, the California law is unconstitutional because there is a less restrictive – and effective – way to prevent minors from buying or renting games that are not intended for them. The Entertainment Software Rating Board (ESRB) system is well known, highly praised and widely used. Retailers support it and parents and opinion leaders consider it the best entertainment rating system in the country. In addition to the ESRB ratings, parental controls available on all new game consoles allow parents block games they do not want their children to play. Indeed, these voluntary tools are two of the reasons lower courts declared California’s law unconstitutional.

Beyond the law’s basic constitutional infirmities, we are also concerned about the consequences that would follow if the Supreme Court validates California’s statute. The law’s vague definitions of violence will create uncertainly about what would, and would not be, legal. The uncertainty will limit the creativity of video game creators and the willingness of retailers to carry games, thereby affecting the unquestioned rights of adults to buy or rent whatever they want.

Then there is the effect on other entertainment and art forms. Books, movies, music, even general news reporting could be next on the censorship list. They all contain violence. How can you restrict one media and not another? It seems inevitable that consumers of all types of entertainment media will be impacted negatively if this law is upheld.

What at first glance seems to be a case about the First Amendment rights of minors, this case is really about the rights of all Americans to watch, read and hear what they want, even if some find it objectionable.

Last month, the ESA filed with the US Supreme Court a legal brief that strongly defends the rights of gamers, video games, and the artists who work so hard to create these games. We were joined by 182 First Amendment experts, national organisations, non-profits, associations, researchers and social scientists who filed “friend of the court” briefs, echoing and augmenting our arguments against the law.

And the people are rising up as well. Over 250,000 gamers, designers and advocates across the country have recognised the seriousness of this situation and joined the Video Game Voters Network (VGVN) to defend video games and the First Amendment. This grassroots coalition has attracted the attention of renowned comic book creator Stan Lee, who drew on his own experiences with government’s attempts to regulate comic books, calling on gamers everywhere to take a stand and join the VGVN.

Following the example set by Stan Lee, I encourage you all to join the VGVN by going to We must stand together now and make it clear to legislators in other states who are thinking about proposing laws similar to California’s that these mistaken efforts to circumvent our rights are unconstitutional, unwarranted and unnecessary.

Michael D. Gallagher

President and CEO

Entertainment Software Association


  • You mean laws similar to those in place in just about every other nation where videogames are sold, to no ill-effect on the industry whatsoever? This is major non-issue.

    • The difference between the american situation and the rest of the world is that australia/england etc have a government body doing the ratings but the ESRB in america is a private company that may be given the power of law. Now THAT’S a bad thing even if only as a precedent

    • Completely agree. I think a nice simle rating system that is actually enforced to stop sales to minors would fix most of the industries problems in this area. Hell half the other parents I know already expect the government to police their kids actions so why shouldn’t they do it in one of these few situations where it actualy makes sense to. I think the Americans have big problems interpreting their own constitution and it just ends up being used to justify all kinds of stupid things like armor piecing bullets for duck hunting.

  • I am sort of confused about this whole thing, not that it really affects me.
    Would Arnie’s law simply restrict the sale of games rated M an up to minors or is it something larger and more restrictive? Cause as Braaains said – pretty much every other country has that law for everything that has a rating.
    Also are games in America required to be rated and display that rating like here in Aus?

    • My understanding is that games in the US aren’t legally required to be rated – I think that’s considered a violation of the First Amendment (the free speech bit or the constitution, I believe?).

      But pretty much all retailers refuse to stock unrated games (similar to how nearly all cinemas won’t show unrated movies), media outlets won’t accept ads for unrated games/movies etc. So in practical terms, you have to get your game rated if you want it on store shelves. This is the same reason that although they have an AO rating, you never see any AO games because stores refuse to stock them.

      But the ratings are not legally enforcible as far as I’m aware. They’re basically a guide – a retailer can choose to ignore the rating and sell an 18+ game to a 10 year old if they want to.

      As I understand this law, it’s basically going to make the ratings enforcible i.e. if a game is only suitable for adults, they can’t sell it to kids. Although I’m not sure if this law is actually using the ESRB rating system to determine what is/isn’t allowed to be sold to minors, or if it’s going to be some vague concept of “excessive violence” which will sit alongside and separate from the ESRB ratings. If it’s the latter than I can see it could be a problem just from an uncertainty point of view. But as long as it’s based on something reasonably clear and consistent like the ESRB ratings (in the absence of “official” government ratings like most other countries have) then I really don’t see what people are complaining about.

      As long as adults are free to choose for themselves what they play, there’s no reason not to restrict access to minors.

  • They are not attempting to restrict the sale, but ban the sale of violent games.

    The only two major issues is that games will be banned making the state a parent, and violent is a vague definition that would make COD, MOH, and Fallout: New Vegas illegal.

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