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Video game industry wants $1.1 million from California

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Money matters

Securing a court victory that clearly defined the First Amendment rights of video games was just the beginning for the Entertainment Software Association. Now it wants California to pay its legal bills.

The video game trade group has filed a motion with the U.S. Supreme Court for reimbursement of attorney's fees in the case of Brown v. EMA, fees that add up to $1.1 million (and could go even higher).

It's a motion the ESA has commonly made after lower court rulings in other video game freedom cases -- and it's one they've won quite often. However, legal experts say it's exceedingly rare for a party to make such a request after a Supreme Court verdict. And the nation's justices might be miffed to see the price tag of arguing in front of them.

"Because the Supreme Court seldom is asked to shift fees in cases before it, the Justices may be a bit surprised at how high those fees can go when well-compensated, experienced lawyers are involved, and bring with them a sizable team of associates," writes Lyle Denniston (who has covered the Supreme Court for 52 years) on SCOTUSblog. "Lower courts, of course, routinely are faced with often pricey fee requests."

For California, it's salt in the wound. The state likely spent just as much or more to take its case to the highest court in the land, only to have the proposed law struck down. And all this has occurred while the state is in the throes of a tremendous budget crisis, with a budget gap of more than $25 billion this fiscal year.

California has already been forced to repay the ESA's legal expenses in lower courts that led to the Supreme Court. The state paid $276,000 plus interest in District Court and $94,000 in the Ninth Circuit Court.

Asking for a million more isn't likely to earn the industry a lot of friends in California, but don't expect the ESA to be overly sympathetic. It says it warned the state even before the bill was passed that it never stood a chance, but former governor Arnold Schwarzenegger and Senator Leeland Yee persisted.

"From the start of this misguided legislation, then-Governor Schwarzenegger and specific California legislators knew that their efforts to censor and restrict expression were, as court after court ruled, unconstitutional and thus a waste of taxpayers' money, government time, and state resources," said Mike Gallagher, CEO of the ESA.

Since this is an unusual request of the Court, observers are a bit uncertain of what will happen next. Justices may rule themselves or could kick it down to the Ninth Circuit Court or District Court to rule.

Regardless of what they choose, California's going to be dragged back into one final round of a fight it already lost.

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