Q&A: Gaming hits the Supreme Court

ECA vice president and general counsel Jennifer Mercurio explains how the California case of Schwarzenegger v. EMA will play out in the nation's highest court.

November 2 will be an important day in game history. That's when the US Supreme Court will hear oral arguments in the case of Schwarzenegger v. EMA, which contests the constitutionality of a California law. That law would criminalize the sale to minors of video games that the state deemed violent and would require that such games sport a 2-inch square sticker on their covers bearing warnings about its adult content.

The US Supreme Court decision may settle the debate over sales of violent video games to minors.

The law, which was challenged in court almost immediately after it was signed in 2005, was ruled unconstitutional in 2007 and again in 2009 on appeal. Judges in both cases used "freedom of expression" grounds to strike down the law, which was written by state Senator Leland Yee (D-California). It is being challenged by the Entertainment Merchants Association retailer organization and the Entertainment Software Association game publisher trade group.

For a look at how the Supreme Court hearing will unfold, GameSpot spoke with Jennifer Mercurio, vice president and general counsel for the Entertainment Consumers Association. The ECA is an organization dedicated to preserving the rights of the consumer and is holding a rally in front of the Supreme Court the morning of the hearings.

A member of the Supreme Court Bar, Mercurio has observed the inner workings of the nation's highest legal body--and has seen the effects of its rulings. She offered an outline of how the day will unfold and what might happen as a result of the justices' decision.

GameSpot: How will the hearing proceed?

Jennifer Mercurio: At 10 a.m., the California Attorney General, Jerry Brown, will go before the justices and present California's case for approximately 30 minutes. During that time, the justices will ask questions that he must answer. Next, EMA/ESA's attorney, Paul Smith, will have 30 minutes, and the justices ask questions that he must answer. That's it.

GS: How long will the proceedings last?

JM: The hearing will last no longer than one hour.

GS: Have any arguments already been made? Will the justices just come in with no knowledge of the case?

JM: Both sides have already submitted briefs in defense of their positions, and other groups, such as ECA, have submitted amicus [friend of the court] briefs putting forth additional information and points as well. [More than 182 media, entertainment, and professional organizations and experts filed amicus briefs siding against the law last month.]

GS: How long after the end of the hearing until the justices make a decision?

JM: There is no time limit on when the justices hand down their ruling, although the vast majority of decisions come in the then-current term. In our case, that would mean that we'd get a ruling sometime before the end of June next year, when the court recesses for the summer. We will probably get a ruling sometime between March and June.

GS: If they declare the law constitutional, what does that mean? Does it set a precedent for any state to make laws restricting game sales?

JM: If they declare the law constitutional, then the law stands and is enforceable in the state of California. It would set a precedent for the other 49 states to create similar laws and could push all 50 states to pass even more restrictive laws regarding video games and other violent content. In fact, it could set a completely new and sweeping precedent in the regulation of speech that was once presumed protected under the First Amendment.

GS: Does the ECA have a contingency plan should the court side with the state of California?

JM: There are many possible avenues should the court side against consumers, which we will explore should the need arise. At this time, we are hopeful that the court will hold video games protected speech under the First Amendment.

GS: If they declare the law unconstitutional, what does that mean? Does it prohibit any state from making laws to restrict game sales?

JM: While we cannot know the exact implications before a decision is reached, one could suppose that in declaring the law unconstitutional they would be ruling that video games are protected speech under the First Amendment in the same way that other media like books, magazines, and movies are. This would be a huge victory for the entire games sector. Such a ruling would not prohibit states from passing other laws attempting to restrict games sales, but it could render them unconstitutional and unenforceable.

GS: Will the ECA demonstration have any effect on the hearing?

JM: From a purely legal perspective, it shouldn't have any effect on the case itself. But the reason to hold rallies at the Supreme Court is to unite people who feel strongly about a cause and send a message to the court and to the general public. Groups are looking to convey a message, highlight their perspective and represent their community. Rallies can also be very effective in garnering positive press attention for a cause, where otherwise the media attending may not cover it or the images or quotes used might be attributed to the opposition.

GS: How many people are expected at the ECA demonstration?

JM: There's really no way of knowing, apart from those who RSVP and tell us they're attending in advance. We've received a ton of positive responses to the news of our rally, and we're hopeful that gamers will come out in droves to support the cause and stand up for their rights.

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Discussion

246 comments
Warlord_Irochi
Warlord_Irochi

@SolanOcard: A kid can see violent movies in theatres if his parent allows it. Don't compare it with porn or cigarettes; it's not the same. What is a stake?. The government telling you how to parent your children is a stake... without menctioning that, if approved, M rated games would be treated as porn, ergo, AO games... and you know what happens with AO only games, right?

SolanOcard
SolanOcard

So.. someone want to explain to me what the big deal is? Kids cannot buy cigarettes, pornography or see certain movies in Theatres... so that is at stake here? A parent can buy their kids cigarettes, a parent could buy their kid porn *shudders* a parent can get their kid into a movie that requires parental guidance. A parent could also purchase their child a video game if this law was passed and not defeated. So really, what is at stake? Personally, I don't care either way. If a kid has 60$ to buy a game, he/she is probably old enough to make their own decisions.

VidGamAnonymous
VidGamAnonymous

So Arnold Schwarzenegger, the guy who played The Terminator, doesn't want kids to play violent video games? Am i the only one who finds a flaw in this logic?

plm3d_basic
plm3d_basic

This could all be settled if there is a law that requires a license for having kids.

mos2000
mos2000

I think everyone would find the following link interesting. Penn and Teller's B.S. debunks the myth about violent video games and youth - with facts: Facts like the U.S. gov't has already studied this issue intensively and found no link between youth violence and games. As a matter of fact, as violent games has risen and popularity, actual violence among youth has dropped. It's just with the current 24-hour cable news cycle and the likes, we hear more of individual acts of violence, and end up lining up their pockets by watching their sensationalism of the issue. Trust me, you will find this episode VERY interesting: http://www.zshare.net/video/62464905b81aabbd/ Nevertheless, if parents don't want their kids to freely buy this stuff, that's fine and more than fair. I actually agree that some restrictions should apply to their purchase. However, not the ones being supported by the anti-game fanatics highlighted in this clip. ~enjoy!

_MEDUSA_
_MEDUSA_

@ptown58 i put the blame on the adults and parents that supply minors with the material, polarography is made every day and freely available, iv never seen a news stand attendant ask for an id when a kid buys a porn mag, yet no one fights against that, i agree with you that the parent should decide what is best for their kid, but the parents buy these games and when their kid turns out a murderer they are fast to blame game developers & distributors @the_requiem ty for seeing the point mate ;) parents cant blame the system in this case,they are the ones coughing out the $$,

Frankenstrat247
Frankenstrat247

While this is an important issue, people need to stop acting like this is youtube. "thumbs up if you agree with me" is getting pretty f*ckin annoying. On topic, this needs to be a decision of the parents and not the state. As Destin said in Hard News, if only the government worked this hard to make parents keep an eye on their f*cking kids!

Mephers
Mephers

Gotta love big government. Controlling what substances you put into your body, and now controlling what entertainment you are allowed.(although they've done that for a while). Talk about crushing your pursuits of happiness.

flawless75
flawless75

if this law passes it will be hard to find rated m games, to me if you are 17 you should be able to play any game you want.

ptown58
ptown58

You want someone/something to blame for "bad" kids ? blame our society with all it's over consumption, competition (some one always needs to beat out someone else for everything whether it pressing buttons really fast or being able to bounce/catch/throw a BALL or a job).

ptown58
ptown58

It's sad to watch adults/parents pass the blame.

ptown58
ptown58

Not to mention that "other" countries allow half naked women on their news papers and on TV, when do we get to fight for that ?

ptown58
ptown58

With the current supreme courts track record for NOT doing the right thing ("Citizens United" Supreme Court Case) , it would not surprise me if this passes.

Darth_Ultima
Darth_Ultima

@traitor_651 This is a big deal. If mature video games are not protected by the first amendment then there will be nothing to stop states from banning them outright not just restricting them from minors. That is ultimately what guys like this Sen. Yee want to do. They are just hiding it behind the guise of restricting sales to minors. I am all for not letting kids play M-rated games but that should be the parents job not the state.

ptown58
ptown58

If the responsibility is taken away from the parents, then it will only get worst. How many kids have and know how to use a helmet properly ? a law does not make it happen, education does.

ptown58
ptown58

And like I said before, I will be the one who decides what is right for my child not you or a court......... Thank you very much. You super citizens should stick to the environment, it really does need all this attention and more.

ptown58
ptown58

A lot of countries do not allow Ritalin either, in fact the U.K. banned it and the U.S. has over four million kids on it. This will just create yet another taboo that will make it that much more desirable....history repeats.

traitor_651
traitor_651

You guys are making such a big deal out of it. Almost every country around the world doesn't allow sale of video games to minors without the accompany ofadults or an ID. This rule is just gonna reduce the amount of 8 year that play games like MW2. Dont think it is a good idea. tune in to MW2 and listen to the little kids telling us how they owned us using many interesting combinations of swear words.

SicklySunStorm
SicklySunStorm

How ironic that Arnie is in the position he's in because people like me who were kids in the 80s loved watching his violent films; Predator, Running Man etc etc.... violent video games are not the issue here, it's parents that don't give a stuff about their kids lives and what they generally get up to that causes horrific isolated incidents. And that's what they are; isolated. Putting that little sticker on the box isn't going to make any difference if you ask me....

badman11226
badman11226

Gov should be focusing on creating jobs, creating better heathcare, etc.,, I think in the future the GOV will tell us what color to wear and puts us in jail for farting in public.

Nator456
Nator456

IDC because im not a minor!! lol

the_requiem
the_requiem

@_MEDUSA_: You're right as the restrictions themselves are not that big of a deal, but the implication is. Remember why no game can be released with AO rating though you get NC-17 movies [or books and magazines] all the time?

Topher2099
Topher2099

pretty soon you will be able to go to war before you can play a video game of one lol

grigjd3
grigjd3

@jedediahpelland, it's not law but self-regulation. Same goes for movies as well. The ESRB ratings have no legal meaning. Stores either choose to or not to care about ratings. This is different from say, cigarettes, which stores are legally required to only sell to "adults".

jedediahpelland
jedediahpelland

Um, arn't you supposed to show your ID when buying a M rated game anyway? Same as an R rated movie?? Not that stores do this but technically I think thats already a law anyways, just like cigerettes and alchohol.

_MEDUSA_
_MEDUSA_

The thing is even if they do force the prohibiting of sale to minors, you will still have the parents that buy it for their little kids, (probably just to keep them quiet and/or busy) but if a 2 inch square sticker might 'wake them up' i say go for it! as long as none of this goes as far as restricting content itself! im just glad for the moment that the country i stay in really doesnt care about it,

mull20641
mull20641

As much as I'm for the advancement of freedom of expression very young children should not be playing M rated games. I'm not quite sure which to support :/. However, I do wonder why no one is suing Steam? You can download AO rated games like The Witcher Uncut without any restriction.

sandgroper
sandgroper

seriously americans have nothing better to form protest rallies about?

berto64
berto64

and i know kids shoudnt play rated M games,but its the parents that cant say no to there son or daughter,im 14,and one time my mom said no to buy GTA,and i didnt cry about it,but idk why these politicians are taking everything over,but if the is ruled consitutional,there gonna be a big arguement in the gaming industry,the community,and the gamers themselves,so um whatever happens,just be ready to pull out your id cards,and all that stuff,but we should just wait and see what happens ok

berto64
berto64

ah politics,its controlling everything now,but i'll wait to see the outcome of this case,but dont we all hate politics

Vengeful_Angel
Vengeful_Angel

Worlock77, can you try explaining why 180+ parties are stepping forward to prevent this law from taking effect if freedom of speech isn't the issue?

sammoth
sammoth

@worlock77 Your not getting it are you ? Look In CA Wal Mart and Gamestop DO NOT CARRY AO titles. If a game gets slapped with that. Guess what NO sales to adults either. So should an adult be limited to what he is allowed to buy because of a rating system that was put in place because some parent cant watch over there kid. I am sorry I get enough of that crap at the Movie theatres when some Parent brings a crying infant into a R rated film. See my point. I am all for protecting Kids but, it needs to start at parenting first and formost. Gov / State should have no say at all. Yes they get involved with CPS but, thats on if the child is in danger and I really don't think this has anything to do with a child being in danger. Wake Up its a bigger issue.

bjkthe619
bjkthe619

wow and this is coming from a guy who used illegal steroids in the 80's... yeah i think steroids have a worst affect on kids than videogames. why dont you you take real problems more seriously instead of worrying about little crap like this

Gooshnads
Gooshnads

Does this mean Arnold doesn't love us? =[

Transparanoia
Transparanoia

Schwarzenegger v. Evolved Mutant Army. Best movie ever.

frostbite3789
frostbite3789

@worlock77 Phew. Good thing you responded to that part of the message. That part that mattered.

lowkey254
lowkey254

@the_monkey_god - Exactly my point dear sir. You must show proof that you are 17 for Rated R movies or M rated games. I agree with that restriction. I think I made the mistake of stating that I agree with the law earlier, which in fact I don't. Their should be a restriction though. The question is how to enforce it.

the_monkey_god
the_monkey_god

@lowkey254 Actually ya. Well close to it all but one. You see they have unrated versions for movies like Hostel, High Tension, and I Spit On Your Grave. I dont know about A Clockwork Orange. But a 3 year old can buy them. But a M rated game requires proof that you are 17.

the_monkey_god
the_monkey_god

[This message was deleted at the request of the original poster]

lowkey254
lowkey254

@the_monkey_god - I don't know how old your son is, but if he were able to get to walmart or target and attempt to buy those movies would he be able to?

the_monkey_god
the_monkey_god

@lowkey254 To be fair movies last like 1 hour 30 to what 2 hours. GOW and GTA4 are long/endless games. But lets take the first part of GOW. Is there a movie that comes close to or surpasses it in things to keep away from the kids? Absolutely! To name a few A Clockwork Orange, Hostel, High Tension, and I Spit On Your Grave. There are tons more but I would give my son those games before I would ever consider him watching those movies! Not to say he will be playing those games any time soon. lol

unwashedflyer
unwashedflyer

again, when is my case of hi-tech slavery and torture going to be represented in the supreme court? probably never. get it right united states government.

sammoth
sammoth

@mos2000 Bravo I could not have said it better. When do Parents take some accountability for knowing what there kids are playing/ watching/ listening etc. ? Gee since when did parenting get to be so hard. Be a Damn parent. You wanted the kids now take responsibility of them.

lowkey254
lowkey254

@Adap7ive - I think earlier, like a day or two ago, I said I was for a law. Probably meant restriction of sales to minor. I agree that it's against the 1st amendment, which some people don't realize is beyond the freedom of speech, if an actual law was created.

Adap7ive
Adap7ive

@lowkey254: I agree. But this bill is not the way to do it, at least without constitutional amendment(s) to make it permissible.

lowkey254
lowkey254

@mos2000 - and which of those anime, which are meant for adults, and movies, the ones you've mentioned are also meant for adults, actually have the interaction that a video game has. Only games create and recreate violent scenes. Once again, how many GoW kills can be made in a campaign or horde or in multi player? The movies that you mentioned can't even add up to the first half of GoW. But let's also add the violence of two other games to make it even. Let's do God of War and GTA. Now the movies that you've mentioned only equal up to a 6th of the violence these games create and recreate. So in the idea that games aren't as violent as movies is BS. I'm for a restriction stopping minors from buying violent games.