On Constitution Day (Sept. 17), movie and TV producers, theater owners and unions have asked the Supreme Court to uphold a Ninth Circuit Court of Appeals ruling that a California law restricting the sale or rental of violent videogames to minors violated the Constitution.
In a "friend of the court" brief Friday, they pointed to the "threat to First Amendment rights from the impulse to control and censor new forms of media," and the threat to other existing media if the court were to uphold the state ban.
"If the court were to uphold California's statute [particularly on the ground that depictions of violence are categorically excluded from First Amendment protection], its reasoning could not logically be limited to the particular medium of video games," the parties said "Absent such a limitation, moreover, state and local governments would be free to impose similar restrictions on the depictions of violence in other media..."
They argued that restoring the restriction would signal to regulators and courts that they needed to consider whether particular violent depictions violated community standards, an "amorphous" requirement that would have "pernicious chilling effects." It could also add violence to the FCC's content oversight authority. They call the ban a "blunt tool," saying that it is not narrowly tailored to serve a compelling government interest, which is a standard for laws regulating speech.
One veteran First Amendment attorney said he would be "amazed" if the High Court upheld the California ban, pointing out that with the exception of "fighting words"--ones that could incite violence or panic (such as yelling "Fire!" in a crowded theater when there isn't one)--the court has steered clear of regulating violent speech period.
Joining in the brief were the Motion Picture Association of America, the American Federation of Television and Radio Artists, Directors Guild of America, Producers Guild of America, Screen Actors Guild, Writers Guild of America West, Independent Film and Television Alliance, and the National Association of Theatre Owners.
The case is "Schwarzegger vs. Entertainment Merchant Associations," which sounds kind of like one of the games that might be at issue. But in this case, it is Governor Arnold Schwarzenegger on the side of the California law being challenged by the studios and unions.
The Supreme Court is hearing arguments in the case Nov. 2.