THE MEDIA COALITION INC.

E-MAIL: MEDIACOALITION@MEDIACOALITION.ORG

The members of Media Coalition believe that California Assembly Bill 40 violates First Amendment rights of business owners and minors. The members of The Media Coalition represent most of the publishers, booksellers, librarians, periodical distributors, recording, movie and video game manufacturers, and recording and video retailers in California and the rest of the United States. They have asked me to explain their concern.

A.B. 40 would require any business with five or more arcade games to post the industry rating system and to segregate any machine that is rated "red" to an area inaccessible to minors. It would be a misdemeanor to allow a minor into the segregated area and for each day the rating system is not posted. Also, a violation could result in revocation of the arcade’s business license.

While voluntary rating systems exist to help parents determine what is appropriate for their kids, a government enforced rating system is unconstitutional. Courts in at least nine different states have ruled it unconstitutional to either enforce the Motion Picture Association of America’s rating system or to financially burden movies that do not carry an M.P.A.A. rating. MPAA v. Specter, 315 F. Supp. 824 (E.D. Pa. 1970), enjoined enforcement of Pennsylvania statute that penalized exhibitors who showed movies unsuitable for family or children viewing, as determined by CARA ratings. Eastern Federal Corporation v. Wasson, 316 S.E. 2d 373 (S.C. 1984), the court ruled that a tax of 20% on all admissions to view movies rated either "X" or unrated was an unconstitutional delegation of legislative power to a private trade association.

Further, while minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court has ruled that "minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected material to them." Erznoznick v. City of Jacksonville 422 U.S. 212-13 (1975). In Ginsberg v. New York, the U.S. Supreme Court established a three-part test for determining whether material is "harmful to minors" and may, therefore, be barred for minors. The mere presence of a "Red" rating alerting parents that an arcade game is inappropriate for minors is no basis for assuming that the game meets the Ginsberg test. It is likely that most rated games would not meet the Ginsberg test for harmfulness. In fact, no court has ruled that any material with violent content is harmful to minors under the Ginsberg test. See, American Amusement Machine Association, et al v. Kendrick, No. 00-3643 (7^th Cir. 2001). Therefore, a law restricting access to arcade games would inevitably prevent minors from accessing material that they have a First Amendment right to see.

If a court declares it unconstitutional, there is a good possibility that the state will be ordered to pay the attorneys' fees of the parties who challenge the law. In 1991, Missouri was forced to pay nearly $200,000 in attorneys' fees when a court struck down a restriction on the sale of violent material to minors, Video Software Dealers Assn. v. Webster, 773 F. Supp. 1275 (W.D. Mo. 1991).