By Berin Szoka & Adam Thierer
Yesterday, the Progress & Freedom Foundation (PFF) and Electronic Frontier Foundation (EFF) filed a joint amicus brief with the U.S. Supreme Court urging the Court to protect the free speech rights of videogame creators and users and asking the justices to uphold a ruling throwing out unconstitutional restrictions on violent videogames. At issue is a California law that bans the sale or rental of "violent" videogames to anyone under the age of 18, among other regulations. While the law was passed in 2005, it has never taken effect, as courts have repeatedly ruled it unconstitutional. California appealed its loss at the Ninth Circuit Court of Appeals to the Supreme Court. The case is Schwarzenegger vs. EMA.
This case has profound ramifications for the future of not just videogames, but all media, and the Internet as well. Although we've had 15 years of fairly solid Supreme Court case law on new media issues, a loss in the Schwarzenegger case could reverse that tide. In the amicus brief, we explain how the current videogame content rating system empowers parents to make their own decisions without unconstitutionally restricting this new and evolving form of free speech. Our brief is focused on three major arguments:
- Parental Control Tools, Household Media Control Methods, Self-Regulation and Enforcement of Existing Laws Constitute Less Restrictive Means of Limiting Access to Objectionable Content than Government Regulation of Constitutionally Protected Speech
- Videogame Content is Constitutionally Protected Speech Deserving Strict Scrutiny
- The State Has Not Established a Compelling Government Interest in Restricting the Sale of Videogames to Minors
The filing can be found online here and it is embedded down below. As always, the Media Coalition has done an outstanding job summarizing the case and listing all the major briefs filed with the Court in this matter, so check out their Schwarzenegger v. EMA page for everything you need to know about this case. GamePolitics.com also offers excellent ongoing coverage of the case.
In particular, check out briefs by:
- The Entertainment Software Association reply brief
- The Comic Book Legal Defense Fund by First Amendment legal wit Bob Corn-Revere
- The Center for Democracy & Technology, among others, focusing on the dangers of expanded age verification for the Internet, which PFF, CDT and EFF recently filed on in the FTC's COPPA review proceeding.
- this brief by various First Amendment scholars led by Eugene Volokh
- the Media Coalition & several other groups
EFF - PFF Supreme Court Amicus Brief in SCHWARZENEGGER v EMA Video Game Case