ESA confident on 'historic' day of Supreme Court hearing

Earlier today, the Supreme Court heard oral arguments in the fight over a California law that would prohibit the sale of some violent games to minors. After making its case to the court, the Entertainment Software Association trade group emerged confident, but stopped short of declaring victory.

"Today was a historic day not only for the computer and video game industry, but for the First Amendment," ESA president Michael Gallagher said in a post-hearing conference call. "Twelve times in eight years, we've had this issue raised about whether video games are speech, and if so, to what degree of protection are they entitled. In the Court today, you heard every single argument the industry has made articulated not just by [ESA counsel of record] Paul [Smith], but by the Justices themselves."

Smith said he was encouraged not just because the justices were lively and interested in the case, but because they "very quickly backed off" one of the state's central arguments, that there should be a free speech exception for violence like the one for sexual content that allows states to control minors' access to pornography.

"That didn't seem to gain any traction at all, especially since Justice [Antonin] Scalia came out very strongly as a leader against that concept," Smith said.

Gallagher mentioned that there was a "substantial" amount of discussion from the justices about the vagueness of the law, and he stressed there would be unintended consequences for all media if the California statute were upheld.

"For us, as the game industry, we would be discouraged from creating any content that runs the slightest risk of running afoul of the law," Gallagher said. "And it would threaten the rights not only of minors, but for adults as well because of the content that would never be made and never find its way onto store shelves."

Signed into law by Governor Arnold Schwarzenegger in 2005 but challenged in court before it could take effect, California Assembly Bill 1179 sought to ban the sale or rental of "violent video games" to children. A "violent" game was defined as a "game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being." Under the law, retailers that sold such games would be subject to a $1,000 fine.

The bill would also have required "violent" video games to bear a two-inch-by-two-inch sticker with a "solid white '18' outlined in black" on their front covers. That's more than twice the size of the labels that currently adorn game-box covers and display the familiar Entertainment Software Rating Board (ESRB) rating.

In 2007, a circuit court judge struck down the law as unconstitutional but admitted he was "sympathetic to what the legislature sought to do." Last year, an appellate court judge backed up the original ruling.