California Supervising Deputy Attorney General Zackery Morazzini did not have a great Tuesday. His opening arguments in the case of Schwarzenegger v. EMA, which will decide if a state can prohibit the sale of violent games to minors, didn't seem to make much headway with the court.

"You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment.... What’s next after violence? Drinking? Smoking?" asked Justice Antonin Scalia. (You can find a full transcript here.) 

I got a chance to talk with the Entertainment Consumers Association's VP and General Counsel, Jennifer Mercurio, and get her impressions of the case and how it's going so far.

Bitmob: What is the ECA specifically alleging California’s law is violating?

Jennifer Mercurio: Based on legal precedent, the Entertainment Consumers Association (ECA) believes that the California law violates the First Amendment to the United States Constitution, which protects Americans’ freedom of speech. Thus far, all of the violent video-games laws have been found unconstitutional restrictions on speech as such.

Bitmob: It seems the debate on the effect of violence in video games on young gamers has been going on for a long time. Do you have any commentary to add to this debate?

JM: The research, what little there is, shows that no causal connection exists. This debate has been raging for many years and is nearly identical to the argument lodged against art, photography, books, comic books, magazines, movies, and music through the last century. Looking back not so many years ago, Elvis and the Beatles were seen as dangerous to the children of America; now that idea is laughable. Not so many years from now, we’ll all look back and see the violent video-game discussion in the same light.

Bitmob: Why is this decision so seminal for the video-game industry?

JM: It is an understatement to claim that this is the most important decision in American history regarding video games. At stake is whether video games are protected speech in the same way that other entertainment media are.

Bitmob: With little legal precedent specifically on video games, what challenges did you see with drawing a comparison between video games and other forms of media that are afforded stronger 1st Amendment protection?

JM: The legal precedent thus far in the prior violent video-games cases all hold that video games are protected speech like other entertainment media. A Supreme Court ruling will be seen as the definitive word on the subject. We remain optimistic that it will reiterate and expand upon lower-court rulings.

Bitmob: If California’s law is upheld, what does this mean for gamers in both California and outside the state?

JM: If this law is allowed to stand, video games will become less available, because merchants will curtail whether, and how, they present and sell video games in California. Other states may pass similar, but not identical laws, so video games would become less accessible. Additionally, the law will make production, marketing, and release costs skyrocket, which would lead to rising prices. In this time of economic recession, rising prices and lowered accessibility will be disastrous for consumers.

Bitmob: Was there anything surprising you heard from either one of the Justices or opposing counsel?

JM: The level of debate surprised me. It was obvious that the Justices had not only read all documents presented to them, including our amicus brief, but had already begun discussion of the issues presented in the case. Their level of engagement made the proceedings even more awesome to witness firsthand.

On a side note, I was stunned that California’s attorney had not, and admitted he had not, ever played video games. I mean, how can one stand before the Supreme Court of the United States in all seriousness and argue that something is “obscene” and that their distribution should be “curtailed” when one has never experienced the joy of playing one? I’m sure one or two spins in Mario Kart would be good for him.

Bitmob: What is the overall message you wanted to communicate to the U.S. Supreme Court?

JM: Throughout this process, the ECA has been giving American consumers a voice, whether through our amicus brief or in the ability to join with others by signing our Gamer Petition or by attending our rally on the steps of the Supreme Court. Just like the industry and its merchants, the customers have a valid and separate voice. Our goal has been to communicate that perspective to the Supreme Court Justices, and we hope that we have done so in a positive and productive manner.

Bitmob: When do you hope to have a decision handed down?

JM: Generally, decisions are handed down in the then-current term, which would mean that we hope to get a decision on or before June 30, 2011. Any time between March and June 2011 would be average.

Bitmob: Do you have any advice for gamers looking to participate in the discourse of gaming legislation?

JM: Gamers hoping to participate in the discussion should join the dialogue through the ECA forums and by becoming a member of the ECA, by signing the Gamer Petition, by doing a letter to their editor and by getting their families and friends involved as well.