What's Next For Video Game Legislation?

The Supreme Court may have ruled on Brown v. EMA today, but is this the end of the story?

The Entertainment Software Association (ESA), which has successfully represented the industry in 13 consecutive decisions before courts and oversees industry ratings board, ESRB, thinks that today's decision once and for all ends the debate as to whether video games can be legislated against based on content.

"You seldom, if ever, see such a strong, clear, and sweeping decision from the Supreme Court the first time they get into an issue," said Paul Smith, the ESA counsel who argued the case before the Supreme Court on behalf of the industry late last year. "This decision constitutes a categorical rejection of the regulation of video games based on their content."

"That door has definitely slammed shut," emphatically added Mike Gallagher, president and CEO of the ESA.

Despite the ESA's victory, one of the soldiers on the other side isn't deterred. We talked to Adam Keigwin, the chief of staff for California state senator Leland Yee, who authored the bill that became California law after being signed by then-governor Arnold Schwarzenegger before it was struck down this morning.

“We’re obviously disappointed in the ruling," he told us, "but this doesn’t mean this hasn’t been a worthwhile effort and that progress hasn’t been made. We need to continue to do what we’ve been doing in terms of educating parents and pushing the industry to be better corporate citizens.”

When we asked Keigwin if the senator would introduce another, similar bill that might survive judicial scrutiny, he said, "it's possible," but that they were currently reviewing all options – including the dissenting opinions and concurring opinion of Justice Alito (who ruled in the majority but expressed some doubts regardless) that was also signed by Chief Justice Roberts.

The majority opinion by Justice Scalia wasn't convinced that the studies and data that the state of California brought on behalf of the law represented enough evidence that violent video games were a threat to kids. Keigwin said that on the science front, he wasn't sure what else could be done to paint a more clear picture. "I don't think we could have any more evidence than we already have." Keigwin pointed out that you aren't going to find the kind of causal study that people want to prove that there is a direct relationship between exposing a minor to violent media and subsequent violent behavior, since to do so would constitute an inhuman study in and of itself.

Whether there's a new law that attempts to scale the judicial heights to acceptance or simply more awareness of the issue, Keigwin isn't out of options. He says that while the ESA and ESRB have done some good things ("We'll give credit where credit's due."), he wants to see the ESRB separated as an entity away from the ESA due to potential conflict of interest matters. He's also believes the ESRB should review games more closely. Instead of just watching pre-prepared footage and info from publishers, he thinks the ESRB itself needs to "dig into these games and see the total content like the movie industry rating board does.”

Although the ESA certainly won't break off the ESRB in the foreseeable future, Gallagher agrees with Keigwin – and the Supreme Court – that the ESRB is on the right track. “The ESRB is in fact, as we’ve been saying for years, the right approach.”