Protecting The First Amendment In A New Era Of Communication, Media
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Protecting The First Amendment In A New Era Of Communication, Media

In 2005, California enacted a law restricting video games sales based on content. ESA filed suit to prevent its implementation.

Holmes Report

In 2005, California enacted a law restricting video games sales based on their content. ESA filed suit in federal court to prevent its implementation, arguing that it violated video games’ First Amendment rights, in a case California ultimately appealed to the U.S. Supreme Court. The Court agreed to hear Brown v. EMA/ESA in April 2010, marking the first time it would hear a case involving content-based restrictions of video games; one with serious implications for books, films, music and television, too. A Court decision upholding California’s law could have facilitated future efforts to impose similar restrictions on these other media.

The Court ultimately ruled in favor of ESA’s position, affirming games’ constitutional protections on June 27, 2011.

Beginning in April 2010, ESA developed an integrated communications campaign involving a full suite of varied tactics to:
• Enhance public understanding and acceptance of video games as an expressive art form and the First Amendment rights of game developers;
• Leverage independent research to counter negative claims about the impact of violent video game play;
• Elevate the Entertainment Software Rating Board (ESRB) rating system and other industry-provided parental tools for monitoring children’s game play;
• Highlight the potential consequences a ruling in favor of California would have on other creative media across industries and art forms, including books, movies, music and television;
• Activate and grow the Video Game Voters Network (VGVN) to strengthen grassroots defense of video game rights; and
• Cultivate relationships with academics, constitutional experts, social scientists, law enforcement officials and other third parties to advocate on behalf of the industry’s position.

ESA developed a strategy to challenge the perception that video games as a form of entertainment are different from books or movies, and that the First Amendment does not protect them.

This strategy focused on communicating four main legal arguments to ESA’s target audiences. The key messages were:

• The First Amendment covers video games and regulating their sale and rental is a violation of free speech. Other courts declared the California law and similar measures unconstitutional;
• There is no scientific evidence that violent video games cause real-world violence;
• Effective tools, such as the ESRB rating system and parental controls on game consoles, already exist for parents to manage their children’s game play; and
• Content-based regulation of video games would lead to similar regulation of other media (books, movies, music, press).

To help inform its messaging, ESA commissioned KRC Research to conduct research into Americans’ opinions on games and what messages resonated effectively. The poll found 78 percent of respondents believed video games should be afforded First Amendment protection, providing a major proof point for ESA’s messaging, and helping to inform collateral development.

ESA’s tactics included a combination of media outreach, grassroots activation, digital communications and third party engagement.

In order to help educate the press, policymakers and the public, ESA developed a microsite with information and background on the case, news clips, regular updates and summaries of important documents. The microsite served as a resource for these audiences and saw more than 18,000 unique visitors.

To engage the media, ESA developed targeted contact lists and distributed releases and statements following milestones, hosted press teleconferences following oral arguments and the decision, conducted an aggressive 50-state editorial board and columnist outreach program, and secured interviews, one-on-one briefings and editorial board meetings with top-tier outlets including NPR, The Wall Street Journal, The Washington Post and USA Today. In addition, ESA produced a b-roll package to distribute to broadcast outlets in the top 100 media markets and conducted a game studio tour for Wall Street Journal reporter Jess Braven.

ESA also worked to recruit third-party support from a diverse group of stakeholder, resulting in more than 180 briefs filed with the Court in support of the ESA’s arguments. ESA created a summary of these briefs and distributed to key media outlets.

Additionally, ESA’s grassroots arm, the Video Game Voters Network engaged its membership to voice their opposition to California’s law through activities such as a badge design competition and a campaign that encouraged members to mail broken game controllers to the California law’s sponsor, Senator Yee to protest the legislation. VGVN’s efforts culminated in a national Social Media Day of Action and securing support for the ESA’s position from industry leader Warren Spector and comic book legend Stan Lee. To promote these milestones and activities, VGVN distributed their own press releases and alerts to targeted media outlets.

ESA measured success by its ability to disseminate messages to target audiences, respond to negative stories with strong rebuttals, secure positive coverage, and engage grassroots and third-party supporters, including:
• 4,396 stories in 2,297 print, broadcast and online outlets reaching an estimated audience of 637,675,346;
• Positive commentary in the Los Angeles Times, The Seattle Times, Orlando Sentinel, Sacramento Bee, The Orange County Register, Los Angeles Daily News and The Des Moines Register;
• Placement of op-eds and letters to the editor in The Seattle Times, The San Diego Union-Tribune, The Baltimore Sun, Pittsburgh Tribune-Review, Athens Banner-Herald, Lansing State Journal and the Wisconsin Journal Times;
• More than 2,000 mentions of ESA’s messages;
More than 650 positive stories, editorials and op-eds reaching an estimated audience of 121,824,011.
 

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