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Supreme Jeopardy

Posted On: 10/14/2010

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Amusement and Music Operators Association, AMOA, First Amendment, Schwarzenegger vs. Entertainment Merchants Association & Entertainment Software Association, U.S. Supreme Court , U.S. Supreme Court video game case, videogame, California videogame case, video game, arcade game, violent games, Vending Times, Marcus Webb, amusement business, coin-op games, coin machine industry

This November, something crucially important will happen for the first time in the history of the U.S. amusement machine industry. The U.S. Supreme Court will hear a case that could give state and local governments unprecedented power to permit -- or wipe out -- commercial entertainment in countless forms and formats for generations to come.

The case before the nation's high court is Schwarzenegger vs. Entertainment Merchants Association & Entertainment Software Association. Technically, this case is "only" about videogames. In reality, the amusement and music industry's entire future could be at stake.

Background: In 2005, California passed a law to turn retailers, operators and website owners into criminals if they permit consumers under 18 to rent, buy or otherwise access videogames containing allegedly "violent" graphics. Many supporters of California's law would, in effect, equate so-called "violent" games with pornography. Other supporters charge that "violent" games brainwash children and turn them into mindless, murderous zombies.

As VT readers know, laws banning youths' access to so-called "violent" games have already been tried in several cities and states, including California, and they have all been struck down by federal courts on First Amendment grounds. But state legislatures keep passing videogame bans because parents like them. A respected polling organization found 72% of American adults support youth bans on so-called "violent" video­games. If the Supreme Court upholds California's law, the other 49 states may pass nearly identical laws, very quickly.

An astonishingly broad coalition has filed briefs with the Supreme Court opposing California's law. They argue the videogame ban is fatally flawed for many reasons.

At least 10 state attorneys general said the law "would lead to an expensive new enforcement regime, in which law enforcement personnel would become culture critics charged with policing games containing simulated violence but judged to be lacking sufficient redeeming artistic or political value .... [The law] raises the specter of censorship for any media that find itself at the center of a politically charged societal debate."

These attorneys general added: "This unnecessary incursion into issues of speech perversely would deplete resources and distract from law enforcement's task of policing actual violence ... [The law] would furthermore legitimize criminal defendants' attempts to evade responsibility for breaking the law by invoking the 'videogame made me do it' defense ... Videogame defenses are becoming more and more prevalent. An official state endorsement of the pseudo-scientific theory that there is a causal connection between criminal behavior and childhood play of videogames that simulate violence would declare open season for criminals..."

A group of 82 legal scholars filed its own brief, slamming the claim that videogames are "harmful" to children: "...validated scientific studies prove the opposite, leaving no empirical foundation for the assertion that playing violent videogames causes harm to minors."

Another pro-videogame brief, filed by retailers and booksellers, cited Homer and Shakespeare: "Descriptions and depictions [of violence], both fictional and real, have always been a part of our civilization's art, history, and literature, both for children and for adults."

Vending Times commends the Amusement and Music Operators Association for joining the coalition opposed to California's anti-videogame law [see story]. The magazine also commends the American Amusement Machine Association for its longstanding support of the cause.

But we believe this case will impact far more than videogames. The high court's ruling will establish a vital precedent that could apply, by implication and extension, to anything and everything from music and advertising to arcade operations. (Some lawmaker decides it's bad for kids? Some psychologist conducts a study that "proves" it's emotionally harmful to children? Fine, it's illegal -- period.) So it is no exaggeration to say that for the amusement industry, this ruling will be the most important verdict ever issued by the U.S. Supreme Court.

Indeed, this case is even more important than copyright rulings or legislation. Copyright issues are mostly about rights and money. Censorship issues, which lie at the heart of the California case, are far more fundamental. They concern the government's basic power to control content, information, art and communication. If you don't have content, then there is no copyright to dispute.

That's why the stakes in the California videogame case could not be higher. We have seen city and state governments attempt to wipe out entire segments of the amusement industry overnight -- and in too many cases, they have succeeded (from slot-style games to cranes, pinball and even family fun centers).

Will the U.S. Supreme Court give politicians even more power to kill this industry? Until the verdict comes down next spring, music and amusements professionals will be waiting with baited breath.