Lawyer: “Brown v. EMA is Monumental”


Jennifer Mercurio has been fighting the good videogame fight for years and the Supreme Court judgement gives her more ammunition.

After being present in the Supreme Court room in November last year when oral arguments were heard for Brown v. EMA, Mercurio was optimistic about the legal future of videogames. The decision announced yesterday that struck down California’s proposed legislation to make it illegal to sell “deviant” games to minors has proven that her optimism was deserved. The fight is far from over, as the opinions of Justices Alito and Thomas proved, but Mercurio is confident that the videogame industry, and any industry whose First Amendment rights are threatened, can beat back any opposition armed with the decision of Brown v. EMA.

“Brown v EMA is monumental, not only for the video game world, but to First Amendment jurisprudence,” Mercurio told me via email. “The decision will guide discussions of future bills, which we are sure to see in the coming months and years. While there is much to be gratified of in Brown v EMA, the conversation is far from over, and we at the ECA look forward to fighting similar misguided legislative efforts to criminalize video games and other First Amendment protected content.”

Mercurio once told me that she thought Chief Justice Roberts wanted his tenure to be known for further establishing the bounds of the First Amendment. What was the significance, then, of Roberts signing on to the opinion written by Alito that might leave the door open to future attempts by state legislatures to regulate game sales?

“By the Chief Justice signing onto Justice Alito’s concurrence, he agrees that the CA law fails, but he and Justice Alito want to highlight the impropriety of the actual law in question, not all possible violent video game laws,” she said. “They leave open the possibility that a violent video game law drafted in another way could be held constitutional. I’m sure legislators across the country will introduce legislation worded differently in an attempt to pass constitutional muster.”

If they do, the laws will likely be struck down, just like the one proposed by California Representative Leland Yee was on Monday.

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