Nine states and Puerto Rico joined to file a brief with the Supreme Court late Friday night urging the justices not to uphold a California law that bans the sale or rental of violent video games to minors.
Rhode Island Attorney General Patrick Lynch, supported by lawyers from Irell & Manella in Los Angeles, submitted the brief in the case Schwarzenegger v. Entertainment Merchants Association & Entertainment Software Association on behalf of his state and Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah, and Washington. In addition to raising the "specter of censorship," the states agreed that California's law if replicated would waste scarce law enforcement resources and provide support for a Twinkie-style defense argument that "the video game made me do it" for accused criminals.
"The road to unconstitutional and unwise over-regulation is paved with good intentions," the brief states. "Though it fixes nothing, it raises the specter of censorship for any media that finds itself at the center of a politically charged societal debate. This Court has consistently recognized that the Constitution blocks entry to this slippery slope.”
The brief adds, “The law enforcement cost outstrips the questionable benefit of having the government itself dictate and enforce another minimum age requirement in retail stores.” Furthermore, Lynch wrote, "California’s statute legiti-mizes the off-loading of personal responsibility on to a video game.
We wrote about the intense lobbying of states by the video game industry in this story. Both Lynch and Utah Attorney General Mark Shurtleff have received campaign donations from the industry, which generates $10 billion in annual sales. One indicator of the industry's clout is that only 11 states joined in a brief supporting California's law -- an unusually low number given the political appeal of a law claiming to protect minors.
Also filing a brief in support of the video game industry today was the Motion Picture Association of America and other movie industry entities. They assert that upholding the California law and creating a new exception to First Amendment protection would have a "dramatic chilling effect" on filmmakers too. Williams & Connolly D.C. partner Kannon Shanmugam wrote the MPAA brief.
“If the Court’s reasoning is not confined to the particular medium of video games, state and local governments could attempt to impose similar restrictions on depictions of violence in other media, including motion pictures," the brief states. "Such restrictions would have an obvious chilling effect, particularly given the inherent amorphousness of restrictions of that type and the potential for a patchwork of nationwide regulation.”
A brief for the American Booksellers Foundation for Free Expression also makes the point that "to be insulated from depictions and descriptions of violence, one would have to be insulated from the great works of religion, history, art, literature, and culture." The author of the brief is Michael Bamberger, partner in the New York office of Sonnenschein Nath & Rosenthal. He cites numerous violent passages from the Bible and adds that Shakespeare's Macbeth "drips with blood." The case is set for argument at the high court on Nov. 2.