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Brown v. Entertainment Merchants Association is heading back to the Ninth Circuit Court of Appeals.
The Entertainment Software Association (ESA) and Entertainment Merchants Association filed a motion in the Supreme Court in July asking for reimbursement of over $1 million in legal expenses they incurred in fighting a California law restricting the sale of violent video games to minors. In June, the Supreme Court decided in Brown v. Entertainment Merchants Association that the law violated the First Amendment right to free speech.
Today, the Supreme Court issued an order referring the motion for attorneys' fees and expenses to Ninth Circuit Court of Appeals for adjudication.
ESA warned then-Governor Arnold Schwarzenegger and the California Legislature that courts in other states were voiding video game laws before California passed its own law. Shortly thereafter, the Seventh Circuit struck the Illinois Sexually Explicit Video Game Law in 2006, and federal district judges found violent video game sales bans in Michigan and Louisiana unconstitutional.
In its petition, ESA categorized California's "misguided legislation" as "unconstitutional and thus a waste of taxpayers' money, government time, and state resources."
Will the Ninth Circuit Court of Appeals award fees to ESA? If similar lawsuits in other jurisdictions are any indication, then yes. ESA has won legal expenses totaling $1.71 million through similar motions in Louisiana, Michigan, and Illinois.
The Ninth Circuit ruled in 2009 that the California video game law was unconstitutional, so a legal fees award would be consistent with its previous position in the case.
If the Ninth Circuit Court of Appeals rejects ESA's request for fees, the group can again appeal to the Supreme Court. The Ninth Circuit is the most frequently reversed circuit court.
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