ESA demands end to California video game ban

The Entertainment Software Association (ESA) has demanded that the US Supreme Court overturn a controversial 2005 California law restricting the sale and rental of so-called “violent” video games to minors.

According to the ESA, the statute – which allegedly denies First Amendment protections to certain video games – is “plainly unlawful” under a long line of Supreme Court precedents.

“The California statute is unnecessary, unwarranted and unconstitutional. Our industry is already partnering with parents and fulfilling its responsibility by supporting the leading work of the Entertainment Software Rating Board (ESRB), the most robust entertainment rating system available,” ESA CEO Michael D. Gallagher claimed in an official statement.

”It would threaten freedom of expression not just for video games, but for all art forms. It would also tie up our courts in endless debates about what constitutes acceptable creative expression in our media. It protects no one and assaults the constitutional rights of artists and storytellers everywhere.”

Meanwhile, ESA general counsel Kenneth L. Doroshow opined that the California law effectively imposed stringent “content-based restriction” on free speech.

“[As such], the law is subject to the exacting ‘strict scrutiny’ standard under the Constitution. [Meaning], the government must show that the law serves a compelling state interest, that the law is necessary to serve that interest, and that the law is the least restrictive means of achieving it.

“[However], the California law fails every aspect of this test, as the lower courts found.”

Doroshow also emphasized that there were “less restrictive” means of ensuring parental approval of computer and video games.

“[For example], the voluntary ESRB system has been lauded by the FTC as the ‘gold standard’ of entertainment ratings systems. 

And parental controls – which give parents the ability to block games they do not want their children to play – have been cited as two reasons why the California law does not pass constitutional muster.

“[But perhaps more worryingly], the state’s argument against violence has no stopping point because so many expressive works contain depictions of violence…that could be deemed offensive to minors.

“[So], upholding the law would create an unprecedented category of speech restrictions, chilling freedom of expression in other media…[And] never before have courts used expressions of violence as the basis for a restriction on Americans’ constitutional rights to free speech,” he added.