Video Games & Corporate Governance Nostalgia

The United States Supreme Court has agreed to review Schwarzenegger v. Entertainment Merchants Association, a challenge of California's law that bans selling violent video games to minors.  The Ninth Circuit upheld the district court's decision that the struck down the ban. This case is of particular interest to First Amendment buffs because it follows closely after United States v. Stevens, which ruled that animal cruelty videos are protected by the First Amendment.

This case is particularly interesting, to me, however, for some different reasons. My first job after college was working for the Interactive Digital Software Association, the predecessor organization to the Entertainment Software Association.  The organization formed in the early 1990s in the wake of threats from Senators Lieberman and Kohl to regulate content in the video game industry.  (Incidentally, one of the games that got them excited was Night Trap, a CD-based computer game featuring the late Dana Plato of Diff'rent Strokes.  It was more silly, than scary, in my opinion.)  In lieu of government action, the industry created its own rating system, run by the Entertainment Software Rating Board, which provides the ratings still found on most video games today. 

That entry-level job, which was before law school, was my first introduction to all of the formalities of a corporation. It was in that job that I first, on any practical level, gained an appreciation for the process of non-profit governance, fiduciary duties of board members, the process of coordinating board action, antitrust concerns when bringing industry leaders together, and the role politics play in the business world.  It also gave me something of an insider's view of maintaining and operating a self-regulatory organization. 

That experience, even though it preceded law school, is fundamental to my appreciation of how the law works (and why) with regard to corporate governance.  Before law school, I knew how a lot of things worked in running an organization; after law school, I was able to appreciate why (and sometimes, notice what should have been done instead of what was).  In addition to examples from practice, I sometimes share stories from that job with my students. This allows me to share the frustrations business people may have with their lawyers, and in the same context, explain what needs to happen to ensure compliance with corporate formalities and obligations. 

I try to encourage my students to help bridge the gap between business and law, and to try to view problems from the businessperson's perspective. If we understand what the businessperson wants, sometimes we can help them find a proper way to do it.  And if we can't, we can at least explain why.  We need to be collaborators as often as possible, not perpetual naysayers. 

So, I am curious how the case will be decided because, from a business perspective, I once had an interest in the outcome.  And, from a legal perspective, I am curious to see if violent video games, which are artistic endeavors that provide ample disclosure of their content, are afforded the same protections provided to videos of animal cruelty. (I guess it's clear I maintain my pro-industry views on this issue.)

--Josh Fershee