Constitutionality
State support courted in High Court video game case
A campaign is under way to win the hearts and minds of state attorneys general in the run-up to a major Supreme Court case testing the constitutionality of limits on the sale of violent video games.
Representatives of the video game industry, with $10 billion in annual sales nationwide, have been in contact with state AGs to persuade them to support the industry by filing a brief in the case, set for argument on Nov. 2. At issue: whether California's 2005 law banning sale or rental of violent video games to minors violated the First Amendment.
"It's our understanding that there's a pretty intense lobbying effort" against the law, said California Supervising Deputy Attorney General Zackery Morazzini, who will argue in defense of California's law before the high court in the case, titled Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association.
One sign that the industry is making inroads is that only 11 states signed onto an amicus curiae or friend-of-the-court brief supporting the California law filed on July 19, an unusually low number in a case involving a law aimed at protecting children. In a typical state-law enforcement case, 40 states or more may join briefs supporting their counterparts before the Supreme Court. The justices often cite state amicus briefs, so having states on the industry's side could be an important tactic in countering California's defense of the law.
"Would we have liked to get more states on our side? Sure," said S. Kyle Duncan, appellate chief of the Louisiana Department of Justice, who wrote the brief for states supporting California. "Would the fact that we didn't be the result of activity by the industry? I can't say." Duncan acknowledged that he was aware of "intense lobbying" of states by the game industry in connection with the case.
"We wouldn't be surprised if the number [of states siding with the industry] was equal or exceeded the number" backing California, said George Rose, executive vice president and chief public policy officer of Activision Blizzard, whose games include Guitar Hero. Rose said his company, which isn't a member of the Entertainment Software Association (ESA) but is coordinating with the rest of the industry on the case, plans to file its own amicus brief against the California law.
Rose asserted that the attorneys general siding with the industry should not be viewed as responding to industry pressure. "Similarly to our opponents, we have discussed the merits of the case with attorneys general of different states in this country," Rose said. "We don't want their opinions to be uninformed."
Utah's call?
The California law was passed after legislators cited studies linking violent video games with aggressive behavior, and evidence that minors had easy access to games rated "mature." Video games like Grand Theft Auto: Vice City, Postal 2 and Duke Nukem 3D were criticized for glorifying death, mayhem and dismemberment. In Postal 2, players can direct an animated character to urinate on a dead body, triggering the comment, "Now the flowers will grow." The ESA challenged the law on its face on First Amendment grounds. It was struck down at the district and appeals court levels.
According to both Morazzini and Duncan, among others, Utah Attorney General Mark Shurtleff is taking the lead in drafting a brief supporting the industry and discussing it with AGs of other states. A spokesman for Rhode Island Attorney General Patrick Lynch confirmed he is also considering joining a brief.
Shurtleff declined to be interviewed about his position on the case, but his spokesman Paul Murphy said in an e-mail that Shurtleff is still making up his mind and that his reservations about the California law have to do with the First Amendment and "the concern from law enforcement that the courts will recognize a defense for criminals that 'the video game made me do it.'"
Murphy said Shurtleff, a Republican, is also concerned about government intervention when parents should be monitoring their children's video game use and preventing them from playing games with sex and violence. "The issue weighs two competing interests: protecting our children and individual liberties," Murphy said. "Mr. Shurtleff will be consulting with other attorneys general before making a decision."
The ESA donated $3,000 to Shurtleff's Utah campaign in 2008, state campaign-finance records show. And people affiliated with the ESA contributed about $2,500 to Lynch's campaigns for Rhode Island attorney general and for the 2010 Democratic gubernatorial nomination.
Mike Healey, a spokesman for Lynch, said Lynch, a Democrat, has not yet decided whether he will sign onto the industry-side brief, which would be due at the Court by Sept. 17. Healey would not say to whom Lynch had spoken while considering the issue.
"Whatever decision he makes on this sign-on letter will be based on the merits of the issue," Healey said in an e-mail message, calling the contributions from the video game industry "a very tiny fraction of the approximately $2 million that AG Lynch raised in the 2006 and 2010 election cycles."
As mentioned by Shurtleff's spokesman, the state arguments against the California law would likely focus on the First Amendment, but not just in the lofty free speech sense. Every law similar to California's -- at least eight so far -- has been struck down by courts on First Amendment grounds, and states could argue that defending laws like it are a waste of scarce resources.
The concern about creating a Twinkie-like defense -- "the video game made me do it" -- for those accused of crimes is also likely to surface, as Murphy indicated.
But California's brief in the case states explicitly that the justices need not embrace a causal relationship between video games and harm to minors to uphold California's law -- even though the brief asserts there is such a link.
James Steyer, a former prosecutor and current CEO of Common Sense Media, which rates video games and other media for families, said a "video game defense" would be "rather disingenuous." He added, "I can't believe any defendant would use such a defense and, if they did, that any juror would listen to it."
Gamer firepower
Steyer, whose group filed a brief in support of California's law, wrote public letters to both Shurtleff and Lynch urging them not to support the industry.
Shurtleff "has claimed to be such a great advocate for children and families in Utah," said Steyer. "We find it very surprising that he would consider filing amicus briefs on behalf of the video game industry." In a pointed letter to Lynch, Steyer also noted that Lynch himself is a parent of young children, so he should not be considering support of the video game industry.
Steyer offered another indicator of the influence of the video game industry. When he sought a law firm to write the amicus brief for Common Sense Media, he went to a half-dozen major law firms, only to find that "they all had a conflict because they represented the entertainment industry." Columbia Law School professor Theodore Shaw wrote the brief.
Jenner & Block appellate chair Paul Smith will be arguing the case for the industry associations. He referred questions to the ESA. Among other firms filing briefs on the side of the industry is Williams & Connolly, representing the Motion Picture Association of America.
Dan Hewitt, a spokesman for the ESA, declined to discuss any contacts with state AGs but said, "a number of organizations, associations, elected officials and others are considering participating in this case by filing amicus briefs. We're encouraged by the broad range of support already shown from individuals and groups across the political and ideological spectrum."
Sean Bersell, vice president of the Entertainment Merchants Association, said, "We're not involved with lobbying any state attorney generals," but added, "If you're looking for what our position is on the law and why it's unconstitutional and a violation of the First Amendment and really the effort by the state of California to ... create an exception to the First Amendment that I think would be incredibly dangerous and a real loophole, you'll find it in our response to the state brief, which is going to be filed by Sept. 10."
The ESA, which represents publishers of video and computer games, has been active at the state and federal level for years, spending $2.4 million so far this year for lobbying in both arenas. It won a victory in Utah last year when then-Gov. Jon Hunstman vetoed a bill that would have fined retailers who failed to enforce a game rating system for minors.
Video game advocates are viewing the Supreme Court case in apocalyptic terms, fearing that an adverse decision will give the medium diminished First Amendment protection forever, compared to other forms of expression, new and old.
The fact that the high court granted review of California's appeal even though its petition acknowledged there was no split among the circuits has free speech advocates worried that the Court may carve out a new, vague exception to First Amendment protections to permit restrictions on violent content for children.
The Entertainment Consumers Association, a gamers' rights and advocacy group, is gathering gamers' signatures on a petition that it will include in a friend-of-the-court brief it is filing on the industry's side.
The Court confrontation, it states on its web site, "represents the single most important moment for gamers, and the [most] pivotal issue for gaming, in the sector's history."
(Published by Law.com – September 1, 2010)