The U.S. Supreme Court has currently accepted several amicus curiae briefs on Case No.: 08-1448, better known in press as Case No.: 08-1448.  The issue in this matter is the State of California’s Civil Code sections 1746-1746.5 which states in pertinent part: “A person may not sell or rent a video game that has been labeled as a violent video game to a minor.” §1746.1(a).

On May 19, 2009, California Governor Arnold Schwarzenegger submitted, On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit, the Petitioner’s Brief, claiming that the Judgment in favor of the Ninth Circuit Court of Appeals, in favor of Respondents, Entertainment Merchants Association and Entertainment Software Association, should be reversed.  The Respondent industry groups challenge the prohibition on the basis that it violates the Free Speech Clause of the First Amendment.

Questions Presented to the Supreme Court:

1) Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2) If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny…is the State required do demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the State can prohibit the sale of the games to minors?

The California statute defines the following terms to determine video game violence: “Cruel,” “Depraved,” “Heinous,” “Serious physical abuse” and “Torture.”  Further, the code states that “Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and the helplessness of the victim.” §1746.1(3)

Legislative efforts to control the sale and rental of video games deemed violent by law makers have often failed.  A 2006 article published by Joystiq tells the tale of various jurisdictions who have failed to enact and keep “violent” video game bans.  The article written by Dennis McCauley begins with the following quote:  “Those who do not learn from history are doomed to repeat it.”

Despite a recent decline of 10% in video game sales, according to the L.A. Times, last month “Players spent $819.9 million on games and the accompanying hardware to play them.” While most of the top sellers are sporting games, the industry as a whole has a strong interest in preventing any legislation that could open the door to more negative public relations and scrutiny.

Video game law is one of the practice area niches in which Marcus Stephen Harris, LLC attorneys counsel and litigate on intellectual property matters involving video game sales and licensing agreements, infringement and matters related to the video game law.

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