California Case on Videogames vs. 1st Amendment

[chronovore]

http://www.gamesindustry.biz/articles/2010-11-03-supreme-court-you-are-asking-us-to-create-a-whole-new-prohibition

The first oral hearings in the Schwarzenegger vs EMA case were made yesterday, with judges appearing critical of the motion to outlaw violent videogames.

"I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech," Justice Antonin Scalia told California attorney general Zackery Morazzimi, who was arguing for a law that would make it a crime to sell violent games to minors.

"It was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence.

"You are asking us to create a whole new prohibition. What's next after violence? Drinking? Movies that show drinking? Smoking?"

Morazzimi came under particular scrutiny for his use of the term 'deviant violent videogames' when attempting to qualify what the ban should encompass.

"As opposed to what? A normal violent videogame?" responded Scalia. "Some of the Grimm's fairy tales are quite grim, to tell you the truth... Are you going to ban them too?"

Justice Elana Kagan wielded the key question: "Do you actually have studies that show that video games are more harmful to minors than movies are?" Morazzini referred to a study by Douglas Gentile, presented as evidence in the case.

Gentile, an anti-game campaigner and researcher at Iowa University, has frequently accused videogames of being addictive, causing a lack of concentration and/or aggressive behaviour and reducing empathy for others. His methodology has been subject to significant criticism.

Rejoined Justice Sotomayor, "One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, outlaw Bugs Bunny?"

While the judges frequently criticised the proposed law's vagueness, they also pressed EMA attorney Paul Smith hard, and questioned the levels of violence in historically controversial titles such as 2003's Postal 2.

Offered Chief Justice Roberts, "We do not have a tradition in this country of telling children they should watch people actively hitting school girls over the head with a shovel so they'll beg for mercy, being merciless and decapitating them, shooting people in the leg so they fall down, pour gasoline over them, set them on fire and urinate on them. We protect children from that."

The EMA's Paul Smith was impassioned in his defence of the industry. "We do have a new medium here. We have a history in this country of new media coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals.

"It started with the crime novels of the late 19th century, which produced this raft of legislation that was never enforced."

Responded Justice Alito, "Your argument is that there is nothing that a state can do to limit minors' access to the most violent, sadistic, graphic video game that can be developed?"

Chief Justice John Roberts also claimed that "any 13-year-old can bypass parental controls in about 5 minutes."

While the judges did not seem unified on the issue of tighter videogame regulation, they frequently appeared unimpressed by Morazzini's arguments.

"Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?" asked Justice Kagan.

Replied Morazzini: "No, it wouldn't, because the act is only directed towards the range of options that are able to be inflicted on a human being."

Very few recent games were mentioned in the hearings, with Justice Kagan also bringing up Mortal Kombat. Following Morazzini's assertion that it would be a candidate for the ban, she observed that it "I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing [it]."

"I don't know what she's talking about," quipped Justice Scalia.

I'm extra-not-fond of "hot issue" bandwagon jumpers like Leland Yee.

[brawndolicious]

Way useless.  I could play a game where you attach a krogan's balls to a car battery but you could never headshot somebody in call of duty, not unless you chip your system.

[ManaByte]

No, this is the law that BANS sales of violent video games to anyone under the age of 18. And it would fine (tax) retailers $1,000 for each  violent game they sell to a minor.

[chronovore]

It's an attempt at putting videogames in an entirely different legal category than movies, books, TV, and music, is what gets me.

[chronovore]

...and boardgames and RPGs for that matter.

[Diunx]

I remember once a gamestop employee wouldn't sell mgs2 to my cousin (15) but then sold it to me(16) without an issue.

[rodi]

I remember once a gamestop employee wouldn't sell mgs2 to my cousin (15) but then sold it to me(16) without an issue.

Drawing the line, motherfuckers! Drawing the line! 

[Mr. Gundam]

No, this is the law that BANS sales of violent video games to anyone under the age of 18. And it would fine (tax) retailers $1,000 for each  violent game they sell to a minor.

I'm fine with this part.

It's an attempt at putting videogames in an entirely different legal category than movies, books, TV, and music, is what gets me.

This is the part I'm not fine with.

[chronovore]

The thing is, AFAIK there are no other media which are subject to this law-enforced age limitation. The MPAA does its own policing, and theaters subscribe to it willingly. There are no law enforcement driven busts of theaters letting in 16-year-old kids into Rated R movies. There are no undercover police who look like kids busting stores that sell Parental Advisory music albums to elementary school kids. It's all self-policed.

This law puts videogames in a spot where they're lumped in with alcohol, tobacco, and guns. It's saying that a media, any form, can be as harmful as a controlled substance, or a weapon. And that's wrong. There's no dividing out one form of media for this kind of attention, and it is hugely fucking ironic that Governor Schwarzenegger, who rode into popularity on some of the most violent action movies of his time, is now pointing fingers at videogames.

[OptimoPeach]

I couldn't have been more than 12 when I was playing GTA 3. I remember asking my friend what a hooker was when he showed me the game. But yeah, I haven't snapped and killed anyone yet, so I think I might have turned out okay. Video games in general were probably already pretty tame compared to the stuff I was finding on the internet by then anyway

[chronovore]

Yeah. I also watched Tom and Jerry cartoons, but never bashed anyone with an anvil, set off fireworks in their pants, or went swimming in soup. Pretty sure I'm OK, and largely normal.

http://www.washingtonpost.com/wp-dyn/content/article/2010/10/29/AR2010102905315.html
Full text, in case it gets hidden behind a paywall:

spoiler (click to show/hide)

Why the Supreme Court should rule that violent video games are free speech
By Daniel Greenberg
Sunday, October 31, 2010; 12:00 AM

On Election Day, everyone in Washington will be focused on the polls. Everyone except the Supreme Court justices. They'll be busy with video games.

Tuesday is the day that the court has agreed to hear Schwarzenegger v. EMA, a case in which the state of California says it has the power to regulate the sale of violent video games to minors - in essence, to strip First Amendment free speech protection from video games that "lack serious literary, artistic, political, or scientific value for minors."

Since I express myself through the creation of video games, including violent ones, I'd like to know how government bureaucrats are supposed to divine the artistic value that a video game has for a 17-year-old. The man who spearheaded California's law, state Sen. Leland Yee, has not explained that. We've had no more clarity from Gov. Arnold Schwarzenegger, who signed the bill into law.

Yee argues in his friend-of-the-court brief that since the government can "prohibit the sale of alcohol, tobacco, firearms, driver's licenses and pornography to minors," then "that same reasoning applies in the foundation and enactment" of his law restricting video games.

As a game developer, I am disheartened and a little perplexed to see my art and passion lumped in with cigarettes and booze.

The U.S. Court of Appeals struck down the law as unconstitutional, just as other U.S. courts have struck down similar anti-video-game measures. California appealed to the Supreme Court, which surprisingly agreed to reconsider the lower court's rejection of the law.

So while everyone else is celebrating their constitutional right to vote, the Supreme Court will ask: Does the First Amendment bar a state from restricting the sale of violent video games to minors?

It seems clear to me that violent video games deserve at least as much constitutional protection as other forms of media that would not be restricted under this law, such as violent books and violent movies. Books and movies enable free expression principally for their authors and makers. But video games do more than enable the free speech rights of video game developers. Games - even those incorporating violence - enable a whole new medium of expression for players.

Gameplay is a dialogue between a player and a game. Reading a book or watching a film can also be considered a dialogue, but the ability of the audience to respond is far more limited. Books and movies rarely alter their course based on the emotional reaction of the audience. (One exception would be those old Choose Your Own Adventure-type books, some of which I wrote before I started working on video games.)

The exploration and self-discovery available through books and movies is magnified in video games by the power of interactivity.

A new generation of games features real changes in the story based on the morality of a player's decisions. Mature-rated games such as "BioShock," "Fable 2" and "Fallout 3" go far beyond allowing players to engage in imaginary violent acts; they also give players meaningful consequences for the choices that they make. In "BioShock," the player meets genetically modified people who have been victimized by a mad ideology. The player can help the unfortunates or exploit them for genetic resources. The game's ending changes radically depending on the player's actions. In "Fallout 3," players can be kind to people or mistreat them, and the people will respond in kind. In "Fable 2," the player must make a painful choice to save his family from death or save thousands of innocent people - but not both.

In games such as these, gameplay becomes a powerful meditation on the nature of violence and the context in which it occurs. Some of the most thought-provoking game design is currently in Mature-rated games (similar to R-rated movies). This is because, in order to have a truly meaningful moral choice, the player must be allowed to make an immoral choice and live with the consequences.

And that's just in single-player mode.

The expressive potential of video games jumps exponentially when players take interactivity online. Players can cooperate with or compete against friends, acquaintances or strangers. They can create unique characters, build original worlds and tell their own stories in multiplayer online universes with a few or a few thousand of their friends.

Video games, even the violent ones, enable players' free expression, just like musical instruments enable musicians' free expression. No one in the government is qualified to decide which games don't enable free speech, even when that speech comes from a 15-year-old. The courts settled the question of the First Amendment rights of minors long ago. Those rights are so strong that, for example, the Supreme Court ruled that school boards do not have the power to ban books from school libraries, even if students can obtain those books outside of school (Board of Education v. Pico in 1982). In that case, the justices said that "the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom," even when the recipient is a minor.

The people allowed to limit a minor's free speech rights are his parents or guardians. And maybe his grandparents and aunts and uncles. But not Sen. Yee and Gov. Schwarzenegger.

Most developers of video games will admit that we have barely begun to tap their vast potential to enable player creativity and free speech. In this early stage in the history of video games, the range of expression that we provide to players is too limited. We've done a good job of creating imaginative ways to attack our imaginary enemies, but we have not done nearly as thorough a job exploring all the other forms of human (and nonhuman) interaction.

Fortunately, many of the best developers are tackling new ways to increase players' in-game actions. I've seen some amazing early work in this field, from the biggest video game companies right down to one-person indie developers.

For example, the seemingly simple but emotionally complex online game "Darfur Is Dying" lets the player try to survive in a refugee camp without being killed by militias. "Infamous 2" promises a much richer, open-ended world to help or harm. In "Epic Mickey," Mickey Mouse will have the ability to misbehave.

One of my current projects is a game system that lets players shape and reshape the moral and spiritual development of the game world and the people in it by their actions and alliances.

If California's law is upheld, it is likely that far more onerous measures will appear all over the country. Some stores may stop carrying Mature-rated games. Game publishers might be afraid to finance them. Developers would not know how to avoid triggering censorship because even the creators of such laws don't seem to know. The lawmakers won't tell us their criteria, and their lawyers have refused to reveal which existing games would be covered, even when asked in court.

Such censorship is not only dangerous, it's completely unnecessary. More than 80 scholars and researchers from schools such as George Mason University and Harvard Medical School have written an extensive friend-of-the-court brief in opposition to the law, noting that California failed to produce any real evidence showing that video games cause psychological harm to minors. And even if there was harm, the law's supporters have not shown that the statute could alleviate it.

The game development community has worked hard on creating a rating system that clearly discloses games' content. Even our critics, such as the Federal Trade Commission, have praised our efforts. The FTC's own survey shows that 87 percent of parents are satisfied with the rating system.

Parents have good reason to be concerned about their children's media diet and to ask what possible good can come from blowing out the brains of a character in a game. Make-believe violence appears to have many benefits for minors, such as relieving stress, releasing anger and helping children cope with difficult feelings such as powerlessness and fear of real violence. A recent Texas A&M International study shows that violent games could actually reduce violent tendencies and could be used as a therapy tool for teens and young adults.

There is no small irony that the man helping to spearhead the charge against violent video games is Schwarzenegger, the Terminator himself. He, more than anyone, should understand the thrill of a good fake explosion.

Even when video games contain graphic violence, and even when the players are minors whose parents let them play games with violence, picking up that game controller is a form of expression, and it should be free.

[close]

[Diunx]

You didn't know what a hooker was at 12?

[ToxicAdam]

NPR played some audio of these old fuckers talking about video games. It was so sad to try to hear them wrap their brains around it.

[Mr. Gundam]

Their "public enemy #1" in this whole thing is Postal 2. POSTAL. 2. No one even cares about that game anymore.

[Great Rumbler]

Their "public enemy #1" in this whole thing is Postal 2. POSTAL. 2. No one even cares about that game anymore.

Nobody even cared about Postal 2 when it came out SEVEN YEARS AGO.

[chronovore]

Yeah, it's one of the reasons I'm finding Leland Yee so loathesome. It should be out of bounds in this day and age, and I think he knows he's not going to get it passed, but he wants to be associated with a strong attempt at moral righteousness. It's purely political, self-serving, with little regard for the cultural or economic impact it could have in the long run... no, videogames are as bad as guns or cigarettes for children.

[ToxicAdam]

NPR played some audio of these old fuckers talking about video games. It was so sad to try to hear them wrap their brains around it.

Any link I can listen to this at?

The distinguished mentally-challenged happens around the 3:00 mark.

http://www.npr.org/player/v2/mediaPlayer.html?action=1&t=1&islist=false&id=131018355&m=131018340