The Supreme Court is expected to issue [update: has issued, see end of post] a ruling today on Brown v. Entertainment Merchants Association (formerly Schwarzenegger v. Entertainment Merchants Association). This is in reference to the law California tried to pass to outlaw the sale of “violent” video games to minors. Defining a game as violent, in this case, involves failing a modified Miller Test, normally used to determine if a work is obscene (a.k.a. pornographic).
Currently, video games enjoy the same level of industry-mandated categorization allowed other forms of mass media like film and television. It is not illegal, for instance, to sell a ticket to an R-rated movie to a minor. However, out of a respect for the MPAA rating system and a desire to avoid controversy, many theaters will voluntarily refuse to sell those tickets to minors. Similarly, retailers voluntarily follow the ESRB ratings system for video games and can refuse to sell an M-rated game to minors.
The important distinction here is the “voluntarily” part. The MPAA and ESRB are entities established by their respective industries that provide retailers, consumers, and parents a general guide to the content they are selling or purchasing. (The ESRB, in my opinion, does a much finer job of rating content than any of its analogues in other media, but that’s a topic for another time.) Should the Supreme Court decide in favor of California, following the new government-decided guidelines would be mandatory, not voluntary. The worst case scenario feared by publishers is that M-rated video games would be whisked off the shelf entirely at major retailers like Wal-Mart and GameStop, instead doomed to live its retail life hidden in the shadows of the curtained-off back rooms of specialty retailers next to the latest iterations of Debbie Does Dallas and Hustler videos.
The silver lining: there doesn’t seem to be much expectation that the Court will rule in favor of California in this case. The state’s arguments didn’t carry much weight in the lower courts, and the higher court didn’t seem too impressed during oral arguments. Should the court rule against the law, then nothing changes for us as an industry, aside from getting more validation and precedence defining us as a medium protected by free speech in the United States.
[edit: As I was typing this, the Court issued its opinion, 7-2 in favor of the EMA, Thomas and Breyer dissenting. It’s a strong decision that doesn’t leave much wiggle-room for future laws to try and sneak around the judgement. This is a Good Victory for our industry.]