Most observers of the legal industry know that the plaintiff or appellant files their paperwork with the court first, and then the defendant or respondent is given a decent amount of time to reply to the charges or causes of action. With the Schwarzenegger v. EMA case, the government filed their appeal first, with supporters of the regulation filing amicus briefs as well.
With content-specific regulation, as here, the court has to evaluate whether the government has a legitimate interest in the matter being regulated, and whether the means taken to regulate that interest were the least restrictive way to control that interest. The regulation of video games IS content-specific, as the term is used, because the regulation is applied to video games based on their content, and not more generally to the “time/place/manner” of the sale of video games or presence of minors in certain areas.
Last week the video game industry paperwork started trickling into the public record, as the various interested parties began filing their amicus briefs with the court. As mentioned during the Legal Issues in Video Game Law panel at PAX, the lead counsel for the various players in the video game industry gathered together the various groups, and allotted to each of them a different point to make and support from the original challenge to the regulation.
So while one group might advocate at length the idea that video games are art, another might discuss the protections already in place that are less restrictive than those imposed by California. As with the amicus briefs filed in support of the law, the papers beyond those of the two named parties are mere supplementary materials for the court, and may or may not actually influence the decision. Certainly none of side players will have a chance to speak before the Supreme Court on this matter, so these filings are to shore up the arguments made by the EMA, and to provide a broader sense of the industry, not to act as a substitute.
Previous Supreme Courts have used law review articles, Restatements, or other supplementary materials in justifying their decision, but the uncertainty as to why this Court has agreed to hear this case in specific may lead to a result that calls upon the main points of neither party.
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