The fate of legislation and control of video games sales in the US will be decided from today

In depth: California vs. video games

This evening, one of two outcomes could become clear for the US video games industry.

Either new legislation will mean that stickers banning the sale of violent video games to young people and children will come into use, or that the threat of increasing regulation and control of the American industry will become a thing of the past.

It is going to be a vary busy day in California. As well as voting in the US Midterm elections, the entire state is also voting on the potential legalisation of cannabis. If that weren’t enough, the Supreme Court – the highest judicial body in the USA – will be hearing the oral arguments in the case of Arnold Schwarzenegger vs. Entertainment Merchants Association.

Much has been said about this case, and many implications have been made about the potential effects it could have on the development and sales of video games in the US. Here, then, Develop will attempt to explain just what is happening, how it began, and what the case could really mean for both the US and international games industries.


* Back in 2005, Leland Yee – US Democrat politician and state senator for California – introduced a piece of legislation requiring violent video games in the region to carry a small ‘18+’ sticker alongside their ESRB ratings. Responsibility for ensuring these games were not sold to anyone below that age then fell to California retailers, and a fine of $1,000 (£625) could be brought against those who did not comply with this new law.

* The legislation was passed at the California state level but did not go into effect. This is because the Entertainment Software Association – the US equivalent to Tiga or UKIE – brought a successful injunction against it. The state of California appealed the decision, only to lose it once again.

* The ESA and EMA won on four main points. They argued that video games were an artform and form of expression similar to films, books and music, and were therefore protected under the First Amendment, which prohibits all government censorship.

* Secondly, it was pointed out that ESRB ratings were already providing the service that California was seeking, and that most parents were capable of regulating the content their children saw.

* It was also argued that there was no comprehensive proof that violent video games were harmful to children, and that a political agenda had frequently fueled such accusations in the past.

* Finally, the ESA and EMA pointed out that the California legislature, which was based on a legal definition of violence developed in the 1970s, didn’t take into account the types of violence that modern video games could feature. In this sense its definition of a violent act being ‘an act of aggression on an image of a human being’ was vague in regards to characters like Super Mario.

* These arguments and others like them had also seen efforts to bring in tighter video games regulation fail not just in California, but in eleven other states as well. A precedent seemed to be set.

* Only one avenue remained open for California. It appealed to the Supreme Court of the United States.


At this point, things start to get very interesting. The US Supreme Court is a powerful, but also limited, legal body. Appealing to it, if your case does not pose a substantial and immediate interest to the country at large, is a shot in the dark. Of the 10,000 or so cases taken to the Supreme Court every year, only around 100 ever make it to an oral argument.

A great deal of controversy has surrounded the Court’s decision to hear the case of Schwarzenegger vs. Entertainment Merchants Association. It has been said that it proves that stricter videogames regulation is being pushed through by an anxious government at any cost, while others say it is evidence the Supreme Court wishes to finally lay the issue to rest by throwing the California argument out on its ear.

The latter argument points out that, when taking every one of the twelve states’ legal actions to date into account, over $2m has been paid to the ESA and EMA in legal fees by the tax payers of the United States. This is hardly a situation the government would wish to see continuing ad infinitum. Of course the opposite side of the argument could also be served by seeing everything drawn to a speedy resolution today.

The Supreme Court is not obliged to explain its reasons for accepting cases, and it is unlikely that we will know for certain why it decided to accept Schwarzenegger vs. Entertainment Merchants Association. The results of today’s argument could go some way to giving us a good idea, however.


So what would happen if Schwarzenegger and California won? Or what if they didn’t? Well, Supreme Court decisions are final, and apply to the entirety of the USA.

If the case is thrown out, very little would happen. ESRB ratings would continue to serve as the barometer for understanding video game content, and perhaps even be taken more seriously as a consequence. A precedent against tighter regulation would have been set, and perhaps most importantly, video games would legally be considered an art form.

If the California legislation is reinstated, however, nationwide applications of it could well follow in the US. This would mean that, perhaps more significantly than any other outcome, video games would be treated as the exceptional form of entertainment in one of the biggest markets for it in the world, and subjected to more stringent controls because of it.

Video games would not be banned, and, in fairness, if a ten-year-old still wanted to play GTA 4, they more than likely still could. Video games, however, would be subjected to specialist controls that would distinguish it as a form of entrainment capable of unpleasantness requiring them. This case would be precedent for that action. The effects of such an outcome could be very unpleasant for the industry in America and across the globe. If nothing else, those eleven other states may well have not forgotten their own desires for tighter regulation.

So stay tuned. We’ll let you know as we do.

Special mention must be given to this article, written by Attorney S. Gregory Boyd and posted on Gamasutra, from which much of the information in this feature was gleaned.

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