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 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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