[This post is by FMC Policy Counsel Chris Naoum]

As you may have noticed, FMC has spent the last little while wrapped up in the Future of Music Policy Summit — our annual spectacular that took place last week.

Buit it wasn’t all wonk-talk about the music biz. In our “spare time,” got really into video games… well kinda. We’re not talking about Halo XIV, but rather our most recent foray into the world of First Amendment protection and free speech for creators. (We’d previously filed in two other cases; info here and here).

On September 17, FMC, NAMAC and Fractured Atlas — collectively the “Arts and Music Amici” — submitted a “friends of the court” brief in the Supreme Court case Arnold Schwarzenegger v the Entertainment Merchants Association (EMA) and Entertainment Software Association (ESA). You can read it here [PDF]. Thanks to the wonderful folks at Media Access Project for their assistance with this filing.

So why did a musicians nonprofit file a brief on behalf of a bunch of video gamers and techies? Here’s a little background.

In 2005, the California enacted a law prohibiting the sale or rental of violent video games to minors, requiring the video games to bear special labeling for sale in the state. A violation of the act would result in a $1,000 fine for each instance. But the legislation set out a very broad definition of “violent video game,” and attempted to apply an obscenity standard used for sexual content. Problem is, they’re not the same thing at all.

In 2009, the 9th Circuit Court struck down California’s video game law. Why? Because they found that the language used to define “obscenity” has always been carefully limited to sexually explicit content and does not apply to violent material. California successfully petitioned for their appeal to be heard by the Supreme Court and the Governator’s wishes were granted.

Still with us?

It might not be immediately obvious, but there’s a thin line between video games and other media content — at least in terms of freedom of speech rights. For example, the music industry has for decades struggled with issues around the labeling of violent lyrics. This is similar. The broad implementation of a vague statue would force creators to speculate about how far their creative expression can extend before triggering a punitive response. You know, like huge fines or even outright bans.

First, this could create a scenario where certain live performances by musicians, dance and theatre organizations might be prevented from taking place. Second, because creators build and distinguish their work from other prior works, it is important to keep the highest First Amendment protection for a diversity of creative expression. Third, if 50 different states define violence in 50 different ways, Congress might try to “fix” the problem by introducing a very broad new category of restricted speech. Finally, the lack of specificity with regards to the methods and means of content distribution in the California statute is of tremendous concern for creators and producers of all media. Today’s musicians are essentially small businesses that often distribute directly to consumers via the web. Therefore, an overly broad set of content-based restrictions that fails to clearly outline who is liable could put even those entrepreneurs working out of their basements on the hook for huge damages.

Here’s something for the legal junkies: whether the video games themselves are objectionable is not at issue in this case. Given that the lower court already declined to adopt a different standard of review, our argument is based primarily on the objection that the statute itself is impermissibly vague and therefore unconstitutional.

Aside from the fact that vagueness may not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited,” First Amendment freedoms are so delicate that the threat of sanctions alone can deter the exercise of free speech. Additionally, the statute’s expansion of the category of obscenity outside the realm of sexually explicit material by applying the same restrictions compounds the vagueness of the statute. Earlier this year, the Supreme Court already upheld the 9th Circuit’s decision that the creation of a new category of unprotected speech for animal cruelty videos “would strike an improper balance with regards to the delicate, vulnerable, and precious free expression that the First Amendment guards.” You don’t have to like the content in a specific case to understand how the protections it is afforded relate to content we take for granted. You know, like music.

We’ll let you know how it all plays out.