HHR Represents Consumer Group in Challenge to California Video Game Law

The Entertainment Consumers Association ("ECA") has retained Hughes Hubbard and the Brooklyn Law Incubator & Policy Clinic to assist it in submission of an amicus brief to the United States Supreme Court in a case with potentially wide-ranging impact on the video game industry.  The case, Schwarzenegger v. Entertainment Merchants Association, involves a California law that regulates the sale of  video games by imposing a labeling requirement based on content and prohibiting the rental or sale of certain games to minors.  The ECA opposes the Act on the ground that video games are free speech protected by the First Amendment.

While California Governor Arnold Schwarzenegger initially signed the Act in 2005, it has yet to be enforced.  In a lawsuit challenging the constitutionality of the law brought by the Video Software Dealers Association and Entertainment Software Association the , the United States District Court for the Northern District of California in August 2007 granted plaintiffs' motion for  summary judgment and permanently enjoined enforcement of the Act.  We have previously written about that decision.

On February 20, 2009, the U.S. Court of Appeals for the Ninth Circuit affirmed the District Court's decision.  The Court of Appeals held that the Act violates rights protected by the First Amendment because California failed to demonstrate a compelling interest supporting its regulation of protected speech, and even if it had a compelling interest did not narrowly tailor the restriction to that alleged interest.  Furthermore, less-restrictive alternatives exist that would further the State's interests.  Finally, the Court held that because the Act is unconstitutional, the labeling requirement is also unconstitutional as the required labels would not disclose purely factual information but rather the State's content-based opinion.

The State of California  petitioned the United States Supreme Court for a writ of certiorari, which the Supreme Court granted on April 26.  The State filed its brief on the merits on July 12.  On July 19, eleven states filed an amicus brief in support of the California law, as did a number of other organizations.  The Respondents' brief is due on September 10.  The Firm's amicus brief on behalf of the ECA is due by September 17.

The ECA is a non-profit membership organization that represents consumers of interactive entertainment in the US and Canada.  The primary policy of the ECA is to oppose legislative efforts that unconstitutionally restrict access to interactive entertainment.

Bill Stein and Dan Weiner of the Firm are representing the ECA.