Follow Up: Video Game Limits Struck Down by Supreme Court in California Case
by Johneboy1970, HSM guest contributor
Greetings HSM readers!
Here’s my follow up article to “Government Oversight in Video Games: Free Speech or Obscenity?” which contains the decision reached by the SCOTUS this week.
The Supreme Court has decided, in a 7-2 opinion, that the State of California’s passage of a law banning the sale of video games to minors was unconstitutional.
In the majority opinion, filed by Justice Antonin Scalia, it was decided that the Act does not comport with the First Amendment, which gives video games the legal precedence and allows them to be considered as protected free speech in future cases.
According to Justice Scalia, “Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And the basic principles of freedom of speech . . . do not vary” with a new and different communication medium.”
Justice Antonin Scalia
He went on to add, “The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.”
As mentioned in my previous article, the case (Brown v. Entertainment Merchants Association), came out of the California courts when the state government decided to pursue the authority to regulate the sales of video games. The law that the state had proposed would ban the sale of “adult” video games to minors, with the penalty being a fine of up to one thousand dollars. The legal definition of violent games, according to the suit, would be games, “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being…in a way that is patently offensive… appeals to minors’ deviant or morbid interests…and lacks serious literary, artistic, political or scientific value.”
Proponents of the law claimed that such government oversight was necessary to protect children and parents from the sex and violence in some video games, while opponents pointed out that the industry was already doing a fair job regulating itself and needed no further government oversight, and that the decision on what games children play ultimately reside with the parent – not with the state.
The obvious thrust of this decision is that video game sales will continue to be self-regulated, much in the same way that movies and video rentals are. But, more importantly perhaps, games can now be considered in the same category of other mediums of free expression which are protected under the First Amendment, such as books, film, art and poetry. This not only legitimizes games and gaming as whole, but also gives the medium a legal leg to stand on in all future cases concerning their sale and, more importantly, their content.
But the decision only takes video games into account. Where do virtual worlds or MMO’s, like PlayStation Home, fit into the ruling? According to at least one Justice, they may not.
In a separate filing, Justice Samuel Alito (who concurred with the ruling) warned the Court to “proceed with caution,” noting that: “We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time.”
While the “gaming as free speech” question has been answered, Justice Alito has left the door open to further decisions concerning gaming-related media and its use and impact on society. While no cases concerning virtual worlds are currently in the docket, only time will tell if new cases will arise concerning the use of such services.
(Readers, how do you feel about this ruling? Are the established guidelines and ESRB ratings sufficient enough, or do you think the industry itself needs to step up, in order to prevent further risks of government intrusion? Do you think this ruling will make the gaming industry feel as if they can create and sell whatever games they want, regardless of content? And what affect do you think this ruling will have on Home – if any affect at all – in the future? State your opinions in the comments below, and remember, keep it civil, not only in regards to the topic at hand, but to each other as well.)
June 29th, 2011 by johneboy1970 | 15 comments
Johneboy1970 is a guest contributor to HomeStation Magazine.
Honestly I feel the ESRB rating system is needless but then I don’t have children.The rating is something I don’t even look at when making a purchase but if I had children I might.As for the ruling,I think the U.S. would’ve been a vastly different place in which to live had this passed and not for the better.Anytime the government gets into the morals business things go bad and this would’ve allowed the states to set up their own regulations in EACH state.Think on that 50or51,depending on D.C.,different sets of rules for developers to follow with some sets probably thick as phone books.A 7to2 decision is pretty telling when you consider this court usually votes 5to4 on most issues,hope that gives any other states with similiar ideas something to think about before trying this again.Also would just like to point out the”it’s for the good of the children”excuse the state was invoking here,it’s an old standby.If the state were truely concerned about the welfare of children in this instance why was the penalty a fine for $1000 and not a revocation of the offending companies license to do business in that state?I’ll tell you,it was a cash grab.California is in need of cash and will look in any direction it can to find it.Sorry Johneboy1970 but thats as civil as I can be when it comes to this kind of attempted nonsense on the part of ppl in charge of our governments.Anyone care to guess how much taxpayer money was wasted on this btw?
I agree with the Supreme Court ruling as I understand it. Retailers have a right to not sell a game for whatever reason they want. Parents can “censor” what games their children play (as best as they can).
Over the air radio and TV stations are subject to sanctions by the FCC but cable channels are not (or so I understand). This seems somewhat strange to me and perhaps that will be another wall to fall. We’ll see. Perhaps this is not relevant.
Obviously print media and internet sites can control as to what they allow.
I think the ESRB ratings are useful, even though they are skewed (putting too much emphasis on silly things like exposed skin yet too lax on violence). However, using it to invoke a legal mandate is simply draconian.
I like to have a rating system (no matter how flawed) for my own guidance but I would never want my ultimate decision to be imposed on somebody else.
@Cthulu: Personally, I do like the ESRB ratings system…but that’s because I DO have kids. I believe that these systems of self-regulation are important in that they show that a given industry can be responsible for itself when it chooses to (unlike many corporate entities), and that a smidgeon of education and information can be a better working model for oversight than government interference.
And, which I appreciate the civility of your reply, I must add that the call for such was not mine…but, perhaps, a good idea none the less.
@Kid: To clarify, the FCC has oversight over all broadcasts of a terrestrial nature. Even cable channels are subject to FCC regulation, although the regulations vary (sometimes drastically) from the rules concerning major network broadcasts.
Interesting thing is that the “majors” are still under the same rules they followed years ago even though there is no more open air broadcasting. I wonder if that will change soon?
@Filthcrow: Interesting point about the ‘skewering’ of the ESRB ratings. If you look back through the history of mainstream entertainment in the US, violence (even extreme violence) has always been somewhat acceptable, while sex had (until recent years) been something which wasn’t talked about.
Flicking through the TV dial 50 years ago one could turn on The Guns of Wil Sonnet (a western with gunfights galore) or I Love Lucy (a comedy where the husband and wife team slept in SEPARATE beds). Go to the movies and you could see gangsters gun each other down and cartoons which can be considered extremely violent, but even the mere mention of a ‘garter’ would bring a gasp of surprise to an adult audience.
This lopsided social norm also found its way into government: regulations stated that a kid could buy a comic (filed with violence) or pulp novel (do they even have those anymore?) but one has to be 18 to get Playboy.
There has always been a puritanical bent to our socital norms which seems to favor violence over sex; this has only lessened in the last 35 years or so (that being said, I personally find that mainstream media has become over-sexualized).
Historically speaking, the focus of this trodding down of sex and sexuality in our media has almost always come from religious fundamentalism…but I wonder if perhaps the complexities of sexuality are just that much harder for humans to digest than the inelegant simplicity of violence.
I just read online that the video gaming industry now wants to be re-imbursed 1.1 million dollars for their legal fees from California for bringing this nonsense to court.Personally I hope they get that and more,it might help prevent similiar idiotic attempts like this in the future by governments.
I hope they win the counter-suit as well. Unfortunately, government at all levels tends to ignore such payouts when they are awarded; although the money to pay such suits off comes from tax-payer dollars, very few tax-payers hold their representative’s feet to the fire after their money is squandered by corrupt or mismanaged government.
I wonder if the industry wins the recovery suit, if we’ll see a commemorative Home T-shirt :>
I’m a bit confused here. You state that it was proposed to regulate “adult” video games, yet you then cite a definition for “violent” video games. Are you saying “adult” equals “violent?”
What about games with sexual content? I find it really amusing for example, that at my local Blockbuster, the only copies of Catherine to be found on the shelves are those with the “alternate” box cover. Personally I don’t see anything wrong with the regular box cover. Grand Theft Auto games however, I find to be offensive and I laugh at the notion that they are in any way “adult.”
@Aeternitas: To clarify, the term “adult’ as it related to the sale of video games is a tag applied by the suit (which was taken from the state legislation) presented to the Court, not by myself.
While the suit seemed to rely heavily on the ‘violent’ content of games, the actual definition of ‘adult games’, as defined by the California law, does indeed include graphic sexuality…although it does not explicitly state it.
If I may quote from the article:
“The legal definition of violent games, according to the suit, would be games, “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being…in a way that is patently offensive… appeals to minors’ deviant or morbid interests…and lacks serious literary, artistic, political or scientific value.”
The last two sections would indeed cover sexual topics, and are intentionally broad – if the SOTUS would have allows such a law to remain uncontested the vagueness of the law would ensure that, from a legal standpoint, further embellishment and interpretation would be easily inserted by the state.
The wording of the last few bits are almost identical to the laws concerning pornography; this was done intentionally in order to use legal precedence from past cases involving pornography in future cases which would involve the sale of video games. Law itself is very much about precedent…and legislation is worded very specifically in order to apply precedent and interpretation where none exists.
Luckily, as the Court branded the legislation with a big, red stamp of “Unconstitutional” this will be something we don’t have to worry about. For now.
The games in question, which caused California to pursue the suit, did any of them involve sexuality, or were the reasons they were found to be offensive involve violence only?
The section you quoted referred to sexual assault, however that’s merely one tiny area of a vastly larger field of human behavior, and in my opinion properly belongs under violence rather than sexuality.
The issue I’m not understanding, is the use of the term “adult” when it seems as if the suit was exclusively concerned with violent video games. You’re saying this was done deliberately as part of a legal strategy?
@ Aeternitas33: The suit itself was pursued by interests opposed to the law which had been enacted by the state of California. The law had already passed in the legislature and had been signed by the Governor. The suit was to determine the Constitutionality of the law as it stood. Thus there were no individual games cited in the original legislation, nor in the suit brought before the Court. Even though some games may have been mentioned in the lead up to the legislative vote, or by individual Justices during arguments, no particular game was singled out.
I agree that the part cited would fall under violence rather than sexuality, but considering that legal precedence is often fluid (meaning that precedence from an unrelated but circumstantially similar case is often used in other court cases) it wouldn’t be a stretch to assume that other ‘adult’ themes would fall under the purview of the legal definition of an ‘adult’ game.
And the language used in the original bill which the Court struck down was, indeed, intentionally nebulous. While LAW can be very specific, LEGISLATION is often written with possible future interpretation in mind.
An example would be the Military Commissions Act of 2006, which supposedly allowed for terrorists to be tried by a military commission as opposed to a court of law for any nefarious act they committed. But, as the law reads, anyone can be labeled as a terrorist (or “unlawful enemy combatant”) at the whim of the Executive branch with no more proof other than accusation, and be given no Constitutionally legal recourse in defending themselves legally. The Obama administration cited the act when they declared that detainees held in places like Guantanamo Bay not only had to rely on a military commission to have their day in court, but they could also be held indefinitely at the behest of the Executive branch…even if they are found not guilty by the military commission. These abuses of civil liberties are a direct result of the intentional vagueness of the legislation; I believe that the California law (which was also left open to a great deal of interpretation due to its language), among a great many other bills and acts, was left purposely vague in much the same fashion. From a legislative point of view, it’s much easier to have some legal maneuvering room that to have to re-write and pass a new law every few years to cover unforeseen circumstances. Unfortunately, this ‘slacking’ often leads to misuse and corruption of intent.
Great questions, Aeternitas. I’m not sure if you are contributing to my insomnia this evening or not (it’s almost 4 am as I write this), but I’m grateful for the brain exercise :>
Well, I’m glad I could be of assistance. Although I believe we may have been mutually contributing to each other’s insomnia.
Not only was it vague in the violence ans sexual catergories but that last part about “…and lacks serious literary,artistic,political or scientific value.” made it possible for them to ban any game for pretty much any reason.And you can be quite sure that any game which happened to offer a viewpoint that the state found offensive for ANY reason or 1 that contradicted the official state position on any controversial topic would fall into one of those catergories in their view.This was old-fashioned censorship in new clothes,IMO.
*and
Well while my 1st comment awaits moderation I’d like to add that I wouldn’t be surprised if California had a rather long and expensive review process to look games over in mind when they set this up as well.Taking every opportunity to charge companies along every step of the process.True,it will be the citizens who will eventually pay the 1.1 million if California has to pay it but hopefully it will wake them up to what kind of government they have.
@ cthulu: Good points. I agree, any legislation that limits freedom of expression is not only a bad thing, but prone to abuse by the very government which passed it.
As you mentioned, there would have to be a commission set up to regulate the law – I find it interesting that California, which is essentially bankrupt, would even attempt to enlarge the size of its government when they are laying off civil workers on a huge scale, and dropping the pay of many who remain down to minimum wage.
Additionally, a certain amount of law enforcement would have to be allocated to investigating claims of illegal sales (and, perhaps, setting up ‘sting’ operations) of video games…when they could be out catching real criminals who pose a threat to the population at large. It just leaves me scratching me head.