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
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.
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
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.