Coalition Urges Supreme Court to Strike Down California's Video Game Censorship

On Friday, September 17, Media Coalition [1] filed a friend-of-the-court brief [2] urging the Supreme Court to strike down California’s restrictions on video games with violent themes and said that the Court should not create a new exception to the First Amendment for speech with violent content for video games or any other media. The brief was signed by five Media Coalition members – the American Booksellers Foundation for Free Expression [3], the Association of American Publishers, the Freedom to Read Foundation, the National Association of Recording Merchandisers, and the Recording Industry Association of America – as well as by the Association of National Advertisers, the Amusement & Music Operators Association, PEN Center USA, and the Recording Academy.

At issue in the case Schwarzenegger v. EMA is a challenge to a 2005 California law prohibiting the sale or rental to minors of any video game containing certain violent content. The law, which was blocked by a federal judge before it took effect, also requires manufacturers to include an “18 and older” warning label on the front of the package and provides civil penalties of up to $1,000 for violations.

“This law may be aimed at video games, but any restriction on violent content could then be applied to a much wider range of media. The potential impact of this law is clearly reflected in the wide range of mainstream groups that have joined our brief opposing this law,” said David Horowitz, executive director of Media Coalition. “There is no First Amendment exception for violent speech in books, movies, music, or other mediums, and we believe that the Supreme Court should not open the door to a new category of unprotected speech for video games or otherwise.”

In the brief filed on Friday, the groups argue that California’s proposed new law “appears to suggest that the new technologies represented by video games require a reassessment of First Amendment principles,” and though every new medium, from movies to television to the Internet – and now video games – “has brought with it the fear that the new technology would corrupt the young… there is no reason to permit fear of novel technologies to diminish fundamental constitutional rights such as the First Amendment.”

To be insulated from depictions and descriptions of violence, the Media Coalition brief noted, “one would have to be insulated from the great works of religion, history, art, literature, and culture,” including Shakespeare, the Bible, and The Iliad. (In a demonstration of the type of speech that could be at risk, the brief presents an appendix with numerous examples of books that were challenged, restricted, or removed from libraries based on violent content between 1990 and 2009.)

The brief also cites the district court’s findings that the state has not offered any proof that video games are different from other types of media, nor does any generally accepted study exist to support the idea that the interactive nature of video games leads to violent behavior. Previous court rulings in other states support Media Coalition’s position that the government cannot ban speech with violent themes, and that computer and video games are forms of artistic expression that, like movies, books, and music, are fully protected by the First Amendment.

Media Coalition’s brief was authored by Michael A. Bamberger and Richard Zuckerman of the law firm Sonnenschein, Nath & Rosenthal. Bamberger is general counsel to Media Coalition. The case will be argued before the Supreme Court on Tuesday, November 2.

A fact sheet on laws attempting to ban depictions of violence [4] can be downloaded from the Media Coalition website.