Game Industry Pleased After Supreme Court Rules In Its Favor

Meanwhile, California State Senator Leland Yee, D-San Francisco, who wrote the bill that was at the heart of the court battle, said he saw the possibility of a return to the issue, albeit only when there is at least one new justice on the Supreme Court.

"There’s always a possibility that change in personnel will change the views of the court,” Smith said, responding to our query during the ESA phone briefing. If one of the five justices in the majority opinion leaves the court, there is no way to know now how that justice’s replacement would rule on the issue. But Smith said “this is a very strong opinion,” issued Monday, and “the court does not over-rule itself very readily.” Therefore, he said, he didn’t think it was likely that a return to the issue with a new Supreme Court justice would happen “at any time in the near future.” Alito and Roberts also “didn’t exactly suggest how you would write a law that could pass constitutional muster,” Smith said: “It’s my view, having worked on these cases for a decade, that it is not possible using the tools of the English language to write a law” that would accomplish that.

Gallagher said that “just because it’s possible to do something … doesn’t mean it’s wise to do it.” It would take “a substantial period of time” before “the circumstances … would come about” where a return to the issue by the Supreme Court may be possible, he said. In the meantime, he said, ESA was “very, very pleased with the broad win” on Monday.

If another state opts to introduce another similar law that tries to regulate games “based on content” in the face of the court’s majority opinion, it’s “just asking to be paying my legal fees in the long run,” Smith said. “That door has been slammed shut,” Gallagher said about the passage of more such laws.

Calling the court’s decision “a big win,” Sean Bersell, EMA vice president of public affairs, indicated his group also had little concern about a return to the issue in the future. He told us, “The court agreed with practically all of our arguments and closed the door on this type of legislation -- not only closed it, but nailed it shut. The majority opinion is now the law of the land and is controlling Supreme Court precedent."

Other legal experts agreed with the game industry that a return by the Supreme Court to the issue was unlikely. “It is difficult to imagine a new state law regulating violent video games that would survive First Amendment review after” Monday’s decision, Robert Corn-Revere, a First Amendment lawyer with Davis Wright, told us. The court “applied strict scrutiny and found the state’s justifications for the law to be seriously deficient,” he said. It was “a bit fanciful to hope for a different outcome based on future hypothetical changes in the composition of” the Supreme Court, he said. Robert Schwartz, a partner at the law firm Constantine Cannon, said “this is about as ’settled’ as things get and unlikely to be revisited in the foreseeable future.” His firm was one of many that had filed amicus briefs on behalf of the game industry in the dispute.

Monday’s decision “effectively closes the door on any similar legislation for the foreseeable future,” said Steven Shapiro, legal director of the American Civil Liberties Union. But he said that because Alito and Roberts “would have left that door ajar, it is always possible that the Court could reconsider its position if one of the five justices in today’s majority leaves the Court.” That “is equally true in any decision with a five person majority,” he said. But he said the court “has a strong institutional presumption against overruling its own cases unless there are very persuasive reasons for doing so."

Yee conceded at a news briefing in San Francisco that the decision leaves little room for California lawmakers to write a new bill that could stand up to judicial review. “With the existing court, if we craft the bill differently, we may be able to get another hearing,” he said. He pointed to the two dissenting and two concurring judges as evidence that there may be an opening to exploit. The concurrence may provide a path to writing a new law, he said. But with a majority of the court joining Justice Antonin Scalia’s opinion striking down the law, the prospects for a new law surviving a constitutional challenge narrow. “When you get a new justice and a new vote, that may be enough,” Yee said. If that opportunity arises, Lee said he expects his colleagues in the California legislature to again support similar legislation “protecting children.”

For now, Yee and advocates for restricting children’s access to violent videogames said they are taking consolation in the fact that the law and the challenge to it have raised the awareness of parents about the contents of videogames their children play. The game industry will probably increase its vigilance for self-regulating its games in the wake of the court’s decision, said George Fouras, a psychiatrist and member of the American Academy of Child and Adolescent Psychiatry, San Francisco Medical Society, after the San Francisco news briefing. “My concern is over time that will lapse and people will become complacent,” he said. “A ratings system is fine, but on the sales floor,” children are still able to buy games with graphic depictions of violence, he said.

A House Republican who once introduced videogame violence legislation said it’s wrong to impose regulations like those California proposed. Rep. Cliff Stearns, R-Fla., a senior member of the Commerce Committee, had a videogame bill in 2006 that would have required the FTC to make rules requiring more thorough review of videogames by content raters. But Monday, Stearns said the high court decision “reminded us that it is the role of parents to select what video games their children purchase and play, not the government.” While Stearns grows “increasingly concerned with the intensifying violence in video games,” he believes “it is inappropriate to impose on industry broad regulations such as those created in the California law. … Instead, I hope the industry will work together to create their own standards so that minors are protected and parents are educated in what they are purchasing."

The court’s decision is a big win for media companies in general and may bode well for broadcasters’ challenge to the FCC’s indecency rules, said Kevin Goldberg, an attorney with Fletcher Heald. “This may make it very difficult for the FCC to win the indecency case the court also granted cert on,” he said. The court’s decision to hear the video game case puzzled some court watchers because it came on the heels of a similar First Amendment ruling where justices “very emphatically said they were not going to carve out new categories of speech” that aren’t subject to the First Amendment, Goldberg said. The California video game law appeared to be asking the court to do just that, he said. “But what the court appears to have done is, rather than open that up, it perhaps has even closed other areas of regulated speech,” he said.

The Supreme Court declared unconstitutional the California law that would have made it illegal to rent or sell violent, M-rated games to kids. The law had provided a penalty of up to $1,000 per violation.

Writing for the majority, Scalia said the 2005 law was unconstitutional on First Amendment grounds, upholding prior decisions by U.S. District Judge Ronald Whyte in San Jose, Calif., and the 9th U.S. Circuit Court of Appeals. Court rulings “have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of ’sexual conduct,'” Scalia said in the ruling. California was looking “to create a wholly new category of content-based regulation” that was designed only for speech directed at kids with its game law, and “that is unprecedented and mistaken,” he said. The U.S. doesn’t have a tradition of specially restricting kids’ access to depictions of violence, and California’s claim that games presented special problems due to their interactive nature was “unpersuasive,” the majority opinion said. Such a law would be “invalid” unless California could demonstrate that it passed “strict scrutiny” -- such as “a compelling government interest” -- and California didn’t meet that standard, the court ruled.

The majority also ruled that any “demonstrated effects” from a connection between exposure to violent games and harm to kids were “small and indistinguishable from effects produced by other media.” California also failed to show that the law’s restrictions met any alleged need of parents who wished to restrict their kids’ access to violent games, the court ruled. The game industry’s voluntary Entertainment Software Rating Board system “already accomplishes that to a large extent,” the ruling said. As a method of helping parents, the law was also “greatly overinclusive” because “not all of the children who are prohibited from purchasing violent video games have parents who disapprove of their doing so."

The majority opinion contained echoes of some of the comments made by the justices in November, during oral argument. For example, the majority opinion compared the violence in games to the violence in classic children’s books. Grimm’s Fairy Tales “are grim indeed,” the ruling said. Scalia had made the same argument during oral argument. Breyer and Alito were among the justices who pressed Smith especially hard during oral argument. Breyer asked Smith why it wasn’t “common sense to say that if a parent wants his 13-year-old child” to have an extremely violent game with “no social or redeeming value,” a state should have the right to tell that parent to “go buy it yourself.” In his dissenting opinion, Breyer said he believed the First Amendment “does not disable government from helping parents” to make sure their kids can’t buy violent games. He said the case was “less about censorship than it is about education."

Thomas was the only justice who made no comment during oral argument. In his dissenting opinion, he said he didn’t agree that the law was “facially unconstitutional under the First Amendment” because the right to freedom of speech, “as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians” or for minors to access such speech.

The MPAA and various other groups praised Monday’s ruling. MPAA Chairman Chris Dodd said “we applaud the Supreme Court for recognizing the far-reaching First Amendment implications posed by the California law."

But the Parents Television Council slammed the court’s decision and pledged to “continue holding irresponsible video game retailers publicly accountable.” The ruling “proves” that the Supreme Court “heard the video game industry loud and clear, but turned a deaf ear to concerned parents,” PTC President Tim Winter said. He claimed the “carefully-worded California statute would not have interfered in any way with the rights of the creators of adult games or the adults who wish to buy them.” He called on the EMA “to redouble its efforts for increased enforcement of the industry’s age-based vending restrictions.”