Why This Case?

As the Supreme Court of the United States prepares to consider Schwarzenegger v EMA, it is important to understand why this case matters so much to gamers in America, and around the world.

The law that California passed imposes a fine of $1,000 on retailers that sell “violent video games” to minors. The definition used in the law labels a video game as being a “violent video game” if it meets one of two methods of determination. The first method requires a game to be violent in a manner that meets the standard of variable obscenity which has been developed by the courts. This standard provides exception speech that is protected for adults, but may be regulated for minors. Variable obscenity has never been broadened by the Supreme Court beyond sexually explicit material to apply to violence. The second method relies on definitions written in the law that focus on the gratuitous and heinous nature of some violence depicted in the game “upon images of human beings or characters with substantially human characteristics” without defining what “substantially human characteristics” means.

The vagueness of the law means that creators and retailers of video games do not know where the line is and the labeling required by the California law could be contradictory to the ESRB’s own labeling. This could lead to at least two outcomes that would harm consumers.

It could chill the speech of the game makers. If the game makers were going to design a game which would receive a “T for Teen” rating under the ESRB’s rating system, but would still be labeled violent under the California law, the game maker could change how they express themselves in the game, and thus arbitrarily change our game playing experience as a result.

The law would also create confusing and possibly contradictory labeling in California. If a game that is labeled “T for Teen” by the ESRB is also required to carry the California mandated warning label, it undermines the credibility of the ESRB and leads to confusion on the part of parents trying to decide what games are right for their children.

Either of these outcomes is bad for the consumer, but the most dangerous possible outcome of this case is the fact that the decision reached by the Supreme Court in this case is lasting precedent that will shape future legislation. This case, if decided against the EMA, could open the gate of legislation on our hobby. The Supreme Court has the authority to say that video games are a less protected form of speech than other media. If that happened, the future of our hobby will look dramatically different than it does now.