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Published: December 2010

Court must affirm that restrictions on sale of video games is unconstitutional

Coalition: Free speech

Consumer Action signed onto an amicus brief urging the Court to affirm a judgment that said California’s law restricting the sale of certain video games to persons under eighteen was unconstitutional. The amici (or "friends of the Court") in this case are nonprofit, public interest organizations that advocate for consumer and citizen interests on a range of issues, including issues affecting consumers’ rights in matters of technology and media.

Below is an excerpt from the amicus brief:

Amici Curiae submit this brief in support of Respondents, urging the Court to affirm the judgment below that California’s law restricting the sale of certain video games to persons under eighteen, California Civil Code §§ 1746–1746.5 (2006) (the “California Act” or “Act”), is unconstitutional.  

As technology evolves, consumers are becoming more and more concerned with the government’s role in regulating access to innovative media.  In particular, consumers of video games are becoming increasingly worried about their freedom to access and play video games.  As demonstrated by a recent online petition, consumers consider experiencing a video game to be no different than reading a book, listening to music, seeing a movie or attending a play; they expect video games to be subject to First Amendment protections like any of these other forms of expression.   Yet California and other states have enacted legislation—and politicians and advocacy groups are pressing for legislation in other states—that would restrict consumers’ access to games that state officials personally find objectionable.  If upheld, the California Act will not only adversely affect amici and the rights of their members in California, but also the rights of their members in the eleven other states supporting California before this Court, as well as the rights of  their members in other states that will undoubtedly be pressured to follow suit.  Amici wish to be heard to help vindicate the First Amendment rights of  their members and all consumers.

SUMMARY OF ARGUMENT

1.  Video games are an expressive medium that deserves the same First Amendment protection as books, movies, plays and other forms of expression.  People play video games because today’s games have the ability to tell emotionally engaging stories in ways comparable to literary or cinematic experiences.  Beyond storytelling, there is a wide range of video games that consumers enjoy for different kinds of experiences, like educational games, music games and simulation games, all of which contain expressive content worthy of First Amendment protection.

Like every other expressive medium that came before it, video games sometimes use depictions of violence when communicating ideas.  At times the violence depicted in any medium can be intense, bloody and graphic—whether in works of unquestionable historic and literary value such as the film Saving Private Ryan or the novel Crime and Punishment, or in works of far more questionable value such as potboilers, pulp magazines and B-grade horror movies (and even then, value is often in the eyes of the beholder).  Video games simply emulate these predecessors.  Given its ubiquitous presence in art, literature and other forms of expression, the depiction of violence has never been exempted from First Amendment protection.  There is no basis in law, logic, science or experience to create a “violence” exception for video games or any other form of protected expression.  California’s attempt to squeeze violence into the obscenity exception of the First Amendment does not work.  Violence is not “obscene” within the meaning of First Amendment jurisprudence, and the standards that govern obscenity were never meant to be extended to other categories of expression.  See Miller v. California, 413 U.S. 15, 24 (1973) (confining scope of state obscenity laws to “works which depict or describe sexual conduct”).  Because there is no precedent regarding violence, a reviewing state official’s (or perhaps a jury’s) individual view about a game’s content—both its use of violence and its supposedly countervailing serious literary, artistic, political or scientific value—would be the only deciding factor.  This is impermissible under the First Amendment.  See R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

There is nothing exceptional about the interactivity of video games that distinguishes them from other forms of expressive media, or that justifies content-based regulation of speech.  Being able to interact with media content is not novel, as theater audiences well know.  As technology progresses, so do the interactive features of all forms of media, such as, for example, e-books and movies on DVDs.  Ultimately, interactivity is a matter of preference: some people prefer to read books, some prefer to watch movies, and some prefer to play video games.  The choice should belong to the media consumer, not the state.

Video game consumers have First Amendment rights that must be protected from the state’s interference.  The First Amendment protects a person’s right to choose what information or entertainment he or she wishes to receive, just as it protects a speaker’s or author’s right to speak or publish what he or she wishes to say.  Stanley v. Georgia, 394 U.S. 557, 564 (1969).  Without this corollary right, the marketplace of ideas would not work, as speakers and publishers would not have audiences with whom to transact. 

2.  The California law cannot withstand strict scrutiny.  As Respondents and other amici have fully addressed, neither of California’s two purported interests warrants the Act’s restriction on the marketplace of ideas.  Parents do not need the state’s assistance in controlling what video games their children play, since they already benefit from an informative video game rating system and parental controls on consoles.  And as every court to consider it has held, there is no reliable support for Petitioners’ assertion that violence in video games causes harm to minors’ physical and psychological well-being. 

The Act is not subject to any lesser degree of scrutiny because it limits its restrictions to minors.   The protections of the First Amendment, including the right of access to information, extends to minors to ensure, at a minimum, that they can effectively participate in society once they become adults.  The government may not restrict the dissemination of protected expression to minors, except in narrow and circumscribed instances, such as school settings, that are not applicable to the California legislation.   None of the traditional limitations on minors’ rights cited by Petitioners or amici, such as marriage or ability to enter into contracts, implicate First Amendment rights.

In any event, the Act is not narrowly tailored to achieve California’s stated goals.  The legislation does not recognize the importance of age in drawing its restrictions, and limits access to 17½-year-olds to the same degree as 10-year-olds.  The Act is underinclusive because it does not restrict the sale or rental to minors of movies or music, no matter how graphically or aggressively violent.  The legislation is overinclusive because its restrictions turn on depictions of violence perpetrated on the vague term “image of a human being,” which can be read to extend to stylized humanoid forms, as well as stylized and cartoonish violence—both of which are easily distinguishable from the realistic violence that the Act seeks to restrict, and both of which are frequently used in video games.

Less restrictive and more effective alternatives are available to accomplish the state’s goals.  The rating system promulgated by the industry’s self-regulatory Entertainment Software Rating Board (“ESRB”) and game console parental controls provide better information and more nuanced control to parents than the California legislation does.  And unlike the Act, they are tailored to specific ages.  These user-friendly mechanisms more than adequately serve California’s interests.  Adding on California’s different standards will only lead to consumer confusion—confusion that will be compounded when other states inevitably layer their own differing standards and interpretations.

Moreover, parents have been using the ESRB system for over a decade, and have come to rely on it.   If upheld, the Act is likely to disrupt well-developed consumer expectations and cause customer confusion.  For example, the Act may impose its “18” label upon a game that the ESRB labels as Teen (suitable for ages 13 and older), because it contains a representation of violence against a stylized character that looks human.  The conflicting labels on the video game’s package would confuse parents and consumers.  Additionally, each state may impose its own labeling system based on its own subjectively determined standards.   Different states may rate the same game differently.  Some may draw different age-prohibition lines, resulting in a game being marked as appropriate for 16-year-olds in one state, but labeled as inappropriate for those under 18 in another state—both of which could differ from the ESRB rating.  A parent or consumer researching that game on the Internet easily could become uncertain about what age the game is recommended for.  If anything, a welter of state legislation like California’s is likely to confuse, not assist, parents.

Lead Organization

Entertainment Consumers Association

Other Organizations

Entertainment Consumers Association | Competitive Enterprise Institute | Consumer Federation of America | Public Knowledge | Students for Free Culture

More Information

Schwarzenegger v. Entertainment Merchants Association

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