The Entertainment Software Association (ESA) has recently submitted a brief to the U.S. Supreme Court asking that they find the 2005 California law restricting the sale of computer and video games to minors. ESA claims that the law is a direct violation of the 1st Amendment, stating that the State of California is the deciding factor in what is “offensively violent”, violating a number of precedents. The brief is part of the ongoing lawsuit Schwarzenegger v. Entertainment Merchants Association and Entertainment Software Association. Lawyers are expected to make oral arguments on November 2, 2010.

“The California statute is unnecessary, unwarranted, and unconstitutional. Our industry is already partnering with parents and fulfilling its responsibility by supporting the leading work of the Entertainment Software Rating Board, the most robust entertainment rating system available,” said Michael D. Gallagher, president and CEO of the ESA. “It would threaten freedom of expression not just for video games, but for all art forms. It would also tie up our courts in endless debates about what constitutes acceptable creative expression in our media. It protects no one and assaults the constitutional rights of artists and storytellers everywhere.”

ESA’s stance is based on the fact that the State of California has no government interest in the case, and that lower courts have continually ruled that there is no credible evidence that video games cause harm to minors – the main tenet of Gov. Schwarzenegger’s argument. The United States Court of Appeals for the Ninth Circuit ruled that the State, “has not produced substantial evidence…that violent video games cause psychological or neurological harm to minors,” as well as, “glaring empirical gaps,” in the State of California’s research.

“Because the California law would impose a content-based restriction on free speech, it is subject to the exacting ‘strict scrutiny’ standard under the Constitution,” said Kenneth L. Doroshow, general counsel of the ESA. “The government must show that the law serves a compelling state interest, that the law is necessary to serve that interest, and that the law is the least restrictive means of achieving it. The California law fails every aspect of this test, as the lower courts found.”

All of this is not to say that EMA and ESA think that children should be presented with violence, but rather, that there are far less restrictive, yet effective, ways of ensuring that games are parentally approved. Both organizations point to ESA’s “gold standard” system of video game ratings, as lauded by the Federal Trade Commission.

“The state of California implicitly concedes that its law cannot withstand strict scrutiny, which is why it focuses instead on trying to carve out an entirely new category of unprotected expression based on violent content,” said Doroshow. “But there is no historical or legal basis for such an exception, the limits of which would be impossible to define with any meaningful clarity. As a result, all expressive media – including movies, television, books, and music – would be at risk.