In September of last year, the Entertainment Software Association filed for $320,000 in legal fees from the State of California, to reimburse the trade organization for their role in defeating California's violent video game law AB 1179 in August. Today, the ESA has that check in hand -- you can see a picture of it over at GamePolitics -- and has taken this opportunity to rouse political pressure against the State's impending appeal by implying that the law has no chance in court.
But however compelling the ESA's argument, it misleads the public about several crucial points -- including the fact that check or no, that court-awarded $282,000 could be entirely forfeit in the event that a higher court overturns Judge Whyte's decision. The press release below, issued by the ESA this morning, seems straightforward, logical, and well-meaning. I can practically hear the subtext: "California is in financial crisis, state employees are suffering, and how dare you spend taxpayer money on laws that have failed time and again in every other state?"
AUGUST 5, 2008 - WASHINGTON, D.C. – The state of California today reimbursed the Entertainment Software Association (ESA) $282,794 for attorney’s fees. The monies were received after the state attempted to defend an unconstitutional law restricting the constitutional rights of video game publishers, developers and consumers.
“California deserves more from its legislators than pursuing flawed legislation. State employees are facing pay cuts. California’s services are being scaled back. And, anxiety is rising in Sacramento to find funds,“ said Michael D. Gallagher, CEO of the ESA, the trade association representing U.S. computer and video game publishers. “Rather than tackling real problems affecting Californians, they chose to waste time, money and state resources. It is shameful that legislators pursued personal agendas in spite of the facts.”
The ESA noted that this payment comes at an especially troubling time for the state, calling to mind other pressing budgetary and legislative priorities and issues, including:
- California is currently facing a $15-billion budget gap[1]
- More than 10,000 California state employees were laid off last week in light of the budget crisis[2]
- Governor Schwarzenegger is seeking to cut wages for nearly 200,000 state employees[3]
- The state already cut 10 percent to its Medicaid reimbursement rate and deferred payments to vendors[4]
“Caregivers are not well-served by court battles and legal fees. Rather, they would have been far better off if state officials worked together with our industry to raise awareness about video game ratings and the parental controls available on all new game consoles—both of which help ensure that the games children play are parent-approved.”
On August 6, 2007, Judge Ronald M. Whyte ruled in favor of the ESA's Motion for Summary Judgment, permanently enjoining enforcement of the California video game law that regulated the sale of computer and video games in that state. Judge Whyte acknowledged that video games are protected by the First Amendment and found there was no evidence that playing violent games results in real world violence. The state currently is appealing this decision.
“It is unfortunate that the state is stubbornly pursuing an appeal that is likely to lead to even more court-awarded fees,” concluded Gallagher.
But speaking to a senior aide at the offices of State Senator Leland Yee -- the author of the original bill -- we got a somewhat different picture.
According to our contact, it's standard practice for the state to settle legal fees more or less immediately after losing the first round of a legal battle, but should the state win, a stipulation in the legal document means that $282,000 will go right back where it came from.
So much for wasting taxpayer money.
What then, about time? Surely the California's time would be better spent fixing the budget than dealing with video games? Trade association CEO Michael Gallagher seems to argue such in his opening salvo above, but shies away two paragraphs later, suggesting that state officials simply spend that time working with the same industry-approved ratings that legislators believe to be flawed in the first place.
Gallagher also seems to allude to frivolous lawsuits -- "Caregivers are not well-served by court battles and legal fees," he says -- but it's probably worth pointing out that the ESA is the one who sued the state of California, not the other way around.
Citing several factors including a recent opinion voiced by Supreme Court Justice Scalia, Yee's office is confident the state will win at appeal. I'm not so sure -- after all, Minnesota, Illinois and Missouri all lost their appeals -- but regardless of the outcome, it's nice to have both sides of the story.
December 8th, 2008 at 3:10 am
Are you saying that we should pursue the bill? It's a total waste of money. You say that California can win back the money reimbursed, but I highly doubt that they can win the second round. For the courts to rule in favor of the bill, there would have to be enough evidence to prove that violent video games have great influence on violent behaviors. So far, none of the evidence given by any of the states has given enough evidence to satisfy such a bill. The ESRB ratings on video games also makes it hard for California to win the case. You forgot to mention that more money will be reimbursed to the ESA if California loses a second time. The bill is unnecessary. It places part of the burden of parenting upon our government and gaming corporations. If a parent can't keep violent video games from his/her child/children, then he/she has failed as a parent. All he/she needs to do is look at the back cover of the box of the game and look at the ESRB rating, which also includes details as to why the game received the rating.
December 8th, 2008 at 1:25 pm
@Cynic:
I'm not saying we should pursue the bill, and personally I do believe that should Yee and company lose (which they are likely to) the effort will indeed be a waste of taxpayer's money.
What I'm trying to do here is something you don't see all that often in the gaming press -- provide the other side of the story -- and call out the ESA for tooting their own horn. It doesn't cost the state nearly $300K to create this legislation; it is the ESA's lawsuit that is diverting the money to these lawyers.