It was a cold and clear day in our nation's capital. While the rest of the country was going about its business, some marching off to vote for their candidate in the midterm elections, others just heading to work for the day, Jennifer Mercurio was on her way to witness history. Vice President and General Counsel for the Entertainment Consumers Association, Mercurio was happy to see the steps of the Supreme Court of the United States were full of supporters for her cause. For that day, November 2nd 2010, was the culmination of a longtime struggle for Mercurio and the ECA. Not only did she work on the amicus brief for the Justices to read before the case but she herself is a longtime gamer and has fought for videogame rights most of her career. That day would be the day that the highest legal authority of the land would once and for all hear the arguments that would help the nine Justices decide whether videogames deserve the same First Amendment rights as books, movies and all other pieces of art.
Like your history teacher might have explained to you, the American legal system can act as a check on legislative power. Lawmakers can write a law that might violate the principles of the Federal Constitution. Someone or some group, in this case the Entertainment Merchants Association, can sue on those grounds and a local court will hold hearings to either strike down the law as unconstitutional or uphold it. Either group can then appeal that decision to the Circuit level, where new hearings are held and a new decision made. Finally, if a party is still unhappy with the decision, they can apply for the case to be reviewed by the Supreme Court. The Supreme Court is made up of nine Justices who are appointed for life terms by the President of the United States. The Supreme Court listens to oral arguments from both sides, and then votes on which side they support. Anywhere between 5 and 10 thousand cases are submitted to the Supreme Court each year, but the Justices only choose to hear the hundred or so cases that are the most important for shaping the legal landscape of the United States.
There were many videogame supporters that were nervous that the Supreme Court even agreed to hear the case for California's law. The bill proposed that games that were deemed to contain "deviant violence" would be labeled as such (in addition to the voluntary ratings the ESRB already provides) and that it would be a criminal offense to sell such games to minors under the age of 18. The law proposed by Rep. Leland Yee of California had been struck down as violating the First Amendment rights of videogames by both a local court and the 9th Circuit Court of Appeals before the Supreme Court decided to hear it. If the law was unconstitutional, then why even bother listening to arguments for it? Would the Supreme Court overturn the lesser court's decision?
"For most of the people who were there, for their entire professional careers in videogames ... this question has always been hanging in the air and here we are. We're at the plate, shall we say," Mercurio told me. "This is the big-time. This is it."