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Posts Tagged ‘first amendment’

Cliff Bleszinski of Epic Games

This past week, game designer Cliff Bleszinski (of Unreal Tournament and Gears of War fame) tweeted a link about the upcoming case and encouraged people to sign an online petition protecting the First Amendment rights of video games.

This fall, the US Supreme Court will hear the case of Schwarzenegger v. EMA concerning a California law aimed at stopping minors from purchasing video games with violent content. The law was passed in 2005 and signed into law by Governor Schwarzenegger. The Entertainment Merchants Association (EMA) challenged the law on First Amendment grounds. So far, the lower court and appeals court have agreed with the gaming industry: the law has never gone into effect. The law would brand certain games as “violent” and restrict the sale of such games to minors. Merchants would be required to affix a white sticker labeled “18” to the games and would be subject to a fine if they sold the games to persons under 18.

The First Amendment is the closest most Americans come to considering something sacred. However, free speech has never been unlimited, as concerns for privacy and public safety (among others) have always been balanced against free speech. Free expression towards minors is an especially touchy subject, as minors are viewed as more impressionable and are often less able to choose where they can and cannot be and, hence, who they can and cannot listen to. Two of the better known exceptions to free speech involves minors. First, child pornography is outright censored in the United States; it is illegal to make, sell, or own, no freedom whatsoever. The sale of pornography to minors is also restricted, on the theory that while adults can choose for themselves if they can “handle” pornography, children won’t know until it’s too late that something is too much for them or harmful to their well-being.

Call of Duty puts players behind the trigger in Afghanistan, which is disturbing to some. Free expression protects people's right to be disturbing, however, and is limited only under extreme circumstances.

Proponents of the CA law have argued that violent video games should receive an exception similar to pornography and children. In order for a law limiting speech to pass a Constitutional test, it must be targeted at a legitimate problem and the solution cannot be too broad, but must regulate only that problem.

Violence among adolescents is a real problem and the psychological trauma children experience from being exposed to violence is no myth. What is not as clear is if violent video games have any real connection to either of those. Most studies I have seen on the subject call the relationship between violent games and violent behavior correlative, rather than causal. Which is to say, it may be that people develop a taste for violence and then seek out violent games, rather than violent games giving them the desire, the data is not clear. The CA lawmakers have thus far failed to convince the courts that violent video games are a legitimate threat to children’s safety and well-being.

GTA: San Andreas box art

Grand Theft Auto: San Andreas created controversy when a secret mini-game was discovered that allowed players to have in-game sex with their virtual girlfriend. One woman complained that she had purchased the game for her 14-year-old grandson, only to discover the "filth" after the purchase. The game, however, was clearly labeled M for Mature (17+). It is unclear whether the CA law would do any more than the current system.

Even if, for the sake of argument, violent video games cause the evils people accuse them of, any law dealing with the subject must be narrow (precedent calls for the “least restrictive manner” available to be employed). The CA law fails to give a good definition of what makes for a “violent” game, so the terms they use are broad, and courts don’t like broad terms in narrow laws. Another issues the CA law has failed on is showing how the law will do better than the current system. Video games, like the film industry, employ a self-imposed rating system, assigning games a rating from All Ages to Adults Only. Many stores adhere to those guidelines and refuse to sell games intended for mature audiences to children. Because the rating system and store compliance are voluntary, the system is not restricted by the government at all. This is constitutionally ideal because it lets people say what they want, and lets people listen if they want. Violent games still end up in the hands of minors, but that doesn’t mean the system isn’t working, or that government regulation would work any better.

For these reasons, the law will probably be struck down by the Supreme Court. The sale of pornography to minors does create precedent that the Court could latch on to and go the other way. If the Court does uphold the law, I don’t think it would be as harmful to the industry as some seem to fear. Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors. The harm would be far more philosophical than actual. The pornography industry has not been driven out of business by the lack of ability to sell to 15 year olds, neither would the game industry be crippled by the lost sales certain games might suffer.

I am an arts/entertainment attorney and a fan of the First Amendment. I think people should have the right to offend.  Some of the most important ideas in human history were offensive to someone (the best ones were offensive to a lot of people). Some ideas lead to violence, others to peace. It’s dangerous for governments to cut people off before they’ve had a chance to be heard, and though I doubt the industry would suffer much from a loss, I like the message the Court would send with a win.

Plus, video games before the Supreme Court… how cool is that?

The Conduit took place in DC and included famous landmarks like the White House. The Supreme Court didn't make the game, but after this case, gamers may come to think of the Court as a place to protect... or frag.

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