No. 08-1448 IN THE Supreme Court of the United States ARNOLD SCHWARZENEGGER, GOVERNOR OF THE STATE OF CALIFORNIA, AND EDMUND G. BROWN JR., ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Petitioners, v. ENTERTAINMENT MERCHANTS ASSOCIATION AND ENTERTAINMENT SOFTWARE ASSOCIATION, Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF OF AMICUS CURIAE ACTIVISION BLIZZARD, INC. IN SUPPORT OF RESPONDENTS GEORGE ROSE ROBERT B. KNAUSS ACTIVISION BLIZZARD, INC. DAVID C. DINIELLI 3100 Ocean Park Blvd. PAUL J. WATFORD* Santa Monica, CA 90405 MELISSA L. CAMACHO- (310) 255-2603 CHEUNG MUNGER, TOLLES & OLSON LLP 355 S. Grand Ave., 35th Fl. Los Angeles, CA 90071 (213) 683-9100 [email protected] Counsel for Amicus Curiae Activision Blizzard, Inc. September 2010 *Counsel of Record i TABLE OF CONTENTS Page INTEREST OF THE AMICUS CURIAE................... 1 SUMMARY OF ARGUMENT .................................... 3 ARGUMENT............................................................... 7 I. THE ESRB’S RATING SYSTEM WAS DESIGNED TO MEET CONGRESSIONAL CONCERNS IDENTICAL TO THOSE THAT PROMPTED PASSAGE OF CALIFORNIA’S STATUTE. ............................ 7 II. THE CURRENT ESRB RATING SYSTEM TAKES A COMPREHENSIVE APPROACH TO INFORMING PARENTS ABOUT GAME CONTENT AND REGULATING THE INDUSTRY’S INTERACTIONS WITH MINORS................ 11 A. The Process By Which Games Are Rated.................................................... 12 B. Age-Specific Ratings, Content Descriptors, And Rating Summaries........................................... 13 C. Advertising Guidelines ....................... 15 D. Enforcement ........................................ 16 E. Retail Partnerships ............................. 18 III. THE ESRB’S RATING SYSTEM EFFECTIVELY BLOCKS MINORS’ ACCESS TO VIOLENT VIDEO GAMES...... 19 ii TABLE OF CONTENTS (continued) Page A. The ESRB And Its Retail Partners Effectively Prevent Unaccompanied Minors From Purchasing Violent Video Games ....... 20 1. The vast majority of retailers prohibit the sale of M-rated games to minors ......... 21 2. Minors cannot purchase AO-rated games at retail because most retailers do not stock or sell AO-rated games and console manufacturers will not certify them............................... 23 3. The voluntary nature of the ESRB’s rating system has no bearing on a minor’s ability to purchase violent video games because most retailers will not sell unrated games .......................... 24 B. The ESRB’s Rating System Effectively Empowers Parents To Make Informed Decisions About The Games Their Children Can Play ...................................................... 26 iii TABLE OF CONTENTS (continued) Page 1. Parents are aware of ESRB ratings, understand and trust the ESRB’s rating system, and consistently use ESRB ratings to inform their purchasing decisions ....... 27 2. A state-sponsored program to further educate parents about the ESRB’s rating system would be a less restrictive and more effective means of achieving California’s stated goal of parental empowerment ........................... 30 CONCLUSION ......................................................... 34 iv TABLE OF AUTHORITIES Page(s) CASES Ashcroft v. ACLU, 542 U.S. 656 (2004) ............................................... 5 Denver Area Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727 (1996) ............................................... 5 Reno v. ACLU, 521 U.S. 844 (1997) ............................................... 5 Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115 (1989) ............................................... 5 Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994) ............................................... 4 United States v. Playboy Entm’t Group, Inc., 529 U.S. 803 (2000) ............................................... 5 Video Software Dealers Ass’n v. Schwarzenegger, 556 F.3d 950 (9th Cir. 2009) ............................... 30 STATUTES AND LESGISLATIVE MATERIALS Rating Video Games: A Parent’s Guide to Games, Joint Hearings Before the Senate Subcomm. on Juvenile Justice and the Subcomm. on Regulation and Government Information, 103d Cong. (1993-1994)..... 7, 8, 9, 10 Video Game Rating Act of 1994, S. 1823, H.R. 3785, 103d Cong. (Feb. 3, 1994)............................ 8 California Civil Code §§ 1746-1746.5......................... 3 v TABLE OF AUTHORITIES (continued) Page(s) OTHER AUTHORITIES FTC, Marketing Violent Entertainment to Children (Apr. 2007), available at http://www.ftc.gov/reports/violence/070412 MarketingViolentEChildren.pdf....... 17, 22, 27, 29 FTC, Marketing Violent Entertainment to Children (Dec. 2009), available at http://www.ftc.gov/os/2009/12/P994511viole ntentertainment.pdf.................................... passim INTEREST OF THE AMICUS CURIAE1 Activision Blizzard, Inc. is a California-based video game publisher whose game portfolio includes best- sellers such as the record shattering first-person shooters in the Call of Duty series; the Guitar Hero franchise; action sports titles including champion skateboarder Tony Hawk’s Tony Hawk: RIDE; adventure games utilizing comic-book and motion- picture licensed characters and plots including Spider-Man: Friend or Foe, X-Men Origins: Wolverine, and James Bond: Quantum of Solace; family entertainment titles such as Shrek Forever After; and massively multiplayer online role-playing games such as World of Warcraft and StarCraft. Activision Blizzard and its subsidiaries employ thousands of creative and skilled artists and innovators – writers, animators, visual designers, software architects, programmers, actors, set designers, sound and lighting technicians, and other professionals – in the United States and abroad, including well over 3,000 in California alone. The company’s products are unique, with audio and visual elements, richness, and complexity often far in excess of comparable offerings from competing entertainment fields such as books, films, and music. The company’s products combine “bleeding edge” technological developments, vivid and engrossing 1 No counsel for a party authored this brief in whole or in part, and no counsel or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus curiae or its counsel made a monetary contribution to the preparation or submission of this brief. The parties have consented to the filing of this brief. 2 storytelling, and creative implementation to form works of art with true worldwide appeal. Activision Blizzard’s success in this regard is reflective of the accomplishments of the entertainment software industry as a whole. The company’s growth from $40 million in annual fiscal revenues in 1995 to $5 billion in 2010 speaks volumes for the popularity of its products among millions of its consumers. Call of Duty: Modern Warfare 2 garnered over $550 million in retail sales in the first five days of its 2009 release (more than any entertainment product to date, whether film, music record, concert, or book), and went on to become the top-selling console game of the year in both the United States and Europe. Modern Warfare 2 and Guitar Hero III: Legends of Rock each have earned well over $1 billion in retail sales revenues. So too has World of Warcraft, which is the world’s most popular online game, with approximately 11.5 million subscribers worldwide. One of Activision’s wholly owned development studios, Neversoft, has created video game products with combined gross revenue sales since 1998 that exceed the entire domestic and international theatrical box office receipts of the Star Wars film franchise since the 1970s. Similar examples can be found throughout the entire video game industry. The entertainment software industry has been an engine for U.S. economic growth, especially in California, and has contributed billions of dollars to national gross domestic product during the recent recession. It remains the most economically successful American cultural export in the Far East and is emerging as the future of popular culture worldwide. 3 Some of the games that Activision Blizzard publishes could be subject to the sales restrictions, labeling requirements, and attendant sanctions provided in California Civil Code §§ 1746-1746.5. For example, the company will release the next installment of the Call of Duty series, Call of Duty: Black Ops, on November 9, 2010. This is a first- person shooter game in which players assume the identities of American operatives involved in covert activities during the Cold War. The scenario of this game is similar to those found in many movies and books written in the past 40 years. Evil Nazi scientists controlled by mad men of the military elite prepare for world domination. It is up to the brave American elite soldiers to save the world from destruction. The game features realistic scenes of combat operations, not unlike those found in a typical Rambo or James Bond film, a Tom Clancy novel, or even a prime-time television series such as 24 or Alias. As with previous titles in the Call of Duty franchise, Activision Blizzard expects to sell millions of units of Call of Duty: Black Ops, including in California, which alone is the largest U.S. video game market. Activision Blizzard therefore is a “speaker” potentially affected by the California statute at issue here, with a direct and concrete interest in this Court’s resolution of the constitutional questions this case presents. SUMMARY OF ARGUMENT This brief explains the origins, mechanics, and effectiveness