Brown v. EMA (previously Schwarzenegger v. EMA)

This is a challenge to a California law banning the sale or rental of certain “violent” video games to minors.

Most recent news: On June 27, the Supreme Court ruled 7-2 that California’s law restricting minors’ access to video games with violent content is unconstitutional. Read the majority opinion by Justice Scalia here. Justice Alito’s concurring opinion begins on page 21 of the PDF. Justice Thomas’ dissent begins on page 38, and Justice Breyer’s dissent begins on page 58. On July 25, ESA and EMA filed a motion seeking to recover over $1.1 million in legal fees they incurred in their challenge to the law. As the groups write in their motion “California persisted in defending a law that Plaintiffs warned the Legislature was unconstitutional before it passed; that was previously found to be unconstitutional by the district court and a unanimous panel of the Ninth Circuit; and that is similar to at least eight other laws invalidated as unconstitutional prior to the time that California sought certiorari in this case. Despite all of this California chose to seek further review in this Court, and this Court has now confirmed the Act’s unconstitutionality.”

Read Media Coalition’s Press Release on the Decision

The Supreme Court heard oral argument on November 2. A transcript is available on the Court’s website.

California submitted its reply brief to the Supreme Court on October 15. On September 10, the Electronic Merchants Association and Electronic Software Association filed their brief on the merits with the Supreme Court. The state of California filed its brief with the Court on July 12.

Media Coalition members and others filed an amicus brief with the Supreme Court on September 17. Media Coalition members American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, National Association of Recording Industry Merchandisers, and the Recording Industry Association of America signed onto the brief. They are joined by the Amusement & Music Operators Association, the Association of National Advertisers, PEN Center USA, and the Recording Academy.

Read Media Coalition’s Press Release on the Filing of its Amicus Brief

Media Coalition members the Comic Book Legal Defense Fund, Motion Picture Association of America, and Entertainment Consumers Association also filed amicus briefs supporting respondents. All twenty seven amicus briefs filed in support of respondents EMA and ESA are listed below:

• Media Coalition Amicus Brief Signed by American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, National Association of Recording Merchandisers, Recording Industry Association of America, Amusement & Music Operators Association, Association of National Advertisers, PEN Center USA, and The Recording Academy

• Comic Book Legal Defense Fund
• Motion Picture Association of America

• Activision Blizzard, Inc.
  
• American Civil Liberties Union, National Coalition Against Censorship, and the National Youth Rights Assocation
• Cato Institute
• Computer & Communications Industry Association, Consumer Electronics Association, Information Technology Industry Council, TechAmerica, Center for Democracy & Technology, and the Digital Liberty Project of Americans for Tax Reform
• Chamber of Commerce of the United States of America
  
• Consumer Electronics Retailers Coalition, Retail Industry Leaders Association, and State Retailer Federations
• Entertainment Consumers Association
• First Amendment Coalition
• First Amendment Lawyers Association
• First Amendment Scholars
• Future of Music Coalition, National Association of Media Arts and Culture, and Fractured Atlas
• Id Software, LLC
• International Game Developers Association and Academy of Interactive Arts and Sciences
• Marion B. Brechner First Amendment Project and Pennsylvania Center for the First Amendment
• Microsoft Corporation
  
• National Association of Broadcasters
• National Cable and Telecommunications Association
• Progress & Freedom Foundation and Electronic Frontier Foundation
• Reporters Committee for Freedom of the Press, American Society of News Editors, The First Amendment Project, National Press Photographers Association, Radio-Television Digital News Association, Society of Professional Journalists, and Student Press Law Center
• Rhode Island, Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah and Washington
• Rutherford Institute
• Social Scientists, Medical Scientists, and Media Effects Scholars
• Thomas Jefferson Center for the Protection of Free Expression and The Media Institute
• Vindicia, Inc.

Amicus briefs filed with the Supreme Court in support of California are listed below:

• Common Sense Media
• The Eagle Forum
• California Chapter of the American Academy of Pediatrics, the California Psychological Association, and Leland Yee (the law’s author)
• Attorneys General of Louisiana, Connecticut, Florida, Hawaii, Illinois, Maryland, Michigan, Minnesota, Missippi, Texas, and Virginia

Legislative History: On October 7, 2005, Governor Schwarzenegger signed into law a bill restricting the sale or rental of certain video games to anyone under the age of 18. The computer and video games are classified as “violent video games” and restricted if the depictions of violence are “offensive to the community” or if the violence depicted is committed in an “especially heinous, cruel, or depraved” manner.  Under the law, game manufacturers and distributors would be required to label games with 2″ x 2″ stickers displaying the numeral “18″ on their front covers. 

• District Court Challenge: The Video Software Dealers Association (VSDA) [now known as the Entertainment Merchants Association (EMA)] and Entertainment Software Association (ESA) filed a complaint challenging the law on October 17, 2005. On December 21, 2005, U.S. District Court Judge Whyte granted a preliminary injunction, barring enforcement of the California video game law while the lawsuit is pending. The judge found that the law likely violates the First Amendment. On May 12, 2006, the cross motions for summary judgments were heard. On August 6, 2007, Judge Whyte granted a permanent injunction.  The court ruled that the law violated the First Amendment and that, while the government has a compelling interest in protecting minors, defendants did not offer proof that video games are any different from other media, nor does any generally accepted study exist to support the idea that the interactive nature of video games leads to violent behavior. 
• Ninth Circuit Appeal: The state appealed the granting of a permanent injunction to the Ninth Circuit Court of Appeals on September 5, 2007.  Briefs in the appeal were filed by the state on January 2, 2008 and by the plaintiffs on February 7. Media Coalition submitted an amicus brief for filing on February 13.  The amicus brief argues first: that the state’s claim is contrary to all U.S. Supreme Court and Courts Of Appeal precedent and could lead to a wide array of mainstream books, magazines, movies, videos, recordings, and other material with violent content becoming subject to regulation; second, that the terms used to define a “violent video game” are unconstitutionally vague; and third, the labeling requirement is unconstitutional compelled speech and a content-based requirement.  The state’s reply brief was filed February 22, 2008.
• The Ninth Circuit ruled the law unconstitutional on February 20, 2009. On August 5, 2008, the State of California reimbursed plaintiffs $282,794 in attorneys’ fees.
• Appeal to the Supreme Court: On May 20th, 2009, Governor Schwarzenegger and Attorney General Jerry Brown filed a petition for certiorari with the Supreme Court asking the Court to hear an appeal of the Ninth Circuit’s ruling. Reaction from Media Coalition and others can be found here. On April 26, 2010, the Supreme Court granted the state of California’s petition for certiorari in Schwarzenegger  v. EMA. The Court’s decision to take the case marks the first time it has considered any of the recent spate of laws restricting or banning certain video games.
•  The Supreme Court presented two questions to the parties:
• 1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?
• 2. If the First Amendment applies to violent video games that are sold to minors and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 u.s. 662, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical or psychological harm to miniors before the state can prohibit the sale of video games?
• The state of California filed its brief on the merits with the Supreme Court on July 12. On September 10, the Electronic Merchants Association and Electronic Software Association filed their brief on the merits with the Court.
• On July 19, California Senator and author of the violent video game law at issue, Leland Yee, joined the California chapter of the American Academy of Pediatrics and the California Psychological Association in submitting an amicus brief in support of his law to the Supreme Court. Common Sense Media and the Eagle Forum also filed amicus briefs in support of defendants. Louisiana Attorney General James D. Caldwell also filed a brief in support of the law signed by the attorneys general of ten other states.
• On September 10, the Electronic Merchants Association and Electronic Software Association filed their brief on the merits with the Supreme Court. The state of California filed its brief with the Court on July 12.
• Media Coalition members and others filed an amicus brief with the Supreme Court on September 17. Media Coalition members American Booksellers Foundation for Free Expression, Association of American Publishers, Freedom to Read Foundation, National Association of Recording Industry Merchandisers, and the Recording Industry Association of America signed onto the brief. They are joined by the Amusement & Music Operators Association, the Association of National Advertisers, PEN Center USA, and the Recording Academy.
• California submitted its reply brief to the Supreme Court on October 15.
• The Supreme Court heard oral argument in the case on November 2. A transcript is available on the Court’s website.