Girding itself for its final battle, the video game industry will lay out its arguments before the U.S. Supreme Court on why California's ban on the sale or rental of violent video games to minors violates the developers' free speech rights.
The industry, expected to file its brief with the high court late Friday, seeks to overturn the state statute as it also takes on family advocates who argue that parents should be able to determine whether their children get exposed to violent media.
Inflamed passions on both sides are likely to result in a pitched battle in the weeks ahead with tactics that would rival — figuratively speaking — the most violent game in the market.
"Forget the 800-pound gorillas," said Hal Halpin, president of the Entertainment Consumers Assn., which represent video game players. "This is more like armies going to war."
The focus of the conflict is a state law, signed by Gov. Arnold Schwarzenegger in 2005 and subsequently declared unconstitutional in 2009 by the U.S. 9th Circuit Court of Appeals in San Francisco in a case entitled Schwarzenegger vs. the Entertainment Merchants Assn. Because of the court challenge, the law never took effect, pending outcome of the trials.
Although the California law is restricted to video games, free-speech advocates say the case opens the door for states to begin regulating other media, such as violent movies, books and music with explicit lyrics.
Constitutional legal scholars are watching the case closely to see how the high court will weigh children's 1st Amendment rights against parents' right to modulate their children's media diet.
In the past, courts have demonstrated a reluctance to fetter free speech, doing so only on rare occasions when a greater public threat could be demonstrated. Yelling "Fire!" in a crowded theater, for example, can be outlawed, as are forms of hate speech. Courts have also allowed states to regulate the sale of pornography to children.
In defending the law, California Atty. Gen. Jerry Brown argued in a brief submitted to the Supreme Court that violent games should be regarded under the same standard as porn.
"There is no sound basis in logic or policy for treating offensively violent, harmful material with no redeeming value for children any different than sexually explicit material," Brown wrote.
The state's argument hinges on the belief that violent games damage children.
"Ultra-violent games are a public health issue," said Jim Steyer, chief executive of Common Sense Media Inc., an advocacy firm in San Francisco that supports the California law. "Therefore, their sale should be considered in that light."
The video game industry is likely to vehemently dispute that assertion in its brief due Friday, as it has in the past.
"No compelling state interest exists that justifies the broad suppression of speech imposed by the act," the merchants association, along with the Entertainment Software Assn., an industry group, wrote in a 2005 brief that successfully requested that federal courts suspend the law.
Unwilling to yield the high ground with parents to family advocates, the industry has also strenuously argued that it already gives parents the tools to make informed decisions about which games their children can play.
Under voluntary guidelines, the vast majority of video games sold in stores are required to submit to an evaluation by the Entertainment Software Rating Board, an industry-supported organization that assigns ratings for age-appropriateness as well as descriptive labels, such as "comic mischief" and "intense violence." Many retailers require salesclerks to verify age before selling violent games that have been given a "Mature" rating by the board.
Both sides have pored over academic journals and court opinions in search of scientific and legal ammunition, and the coming weeks are likely to see an outpouring of conflicting research designed to persuade public opinion leading up to a Nov. 2 hearing before the Supreme Court.