Video Games Go To Court

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Next week, the Supreme Court will hear oral arguments on a 2005 California law that seeks to regulate the sale of excessively violent video games to minors. Schwarzenegger vs. EMA/Entertainment Software Association could prove to be a landmark case for the gaming industry, one that all gamers should keep a close eye on, as it will help determine once and for all whether or not video games are a protected form of free speech under the First Amendment, or whether or not it's a form of entertainment that deserves government regulation. If you haven't been keeping tabs on the case, here's a primer to get you started. What is it about? The 2005 law seeks to ban what it calls a "narrow category of offensively violent material." The state of California, in a brief to the Supreme Court, says the law would apply only to video games depicting violent content that is "patently offensive for minors, appeals to their deviant or morbid interest, and causes the game to lack serious redeeming value for them." The state points to a 1968 case, Ginsberg v. State of New York, in which the Supreme Court supported restrictions on the commercial sale of sexually-explicit material to minors that the legislature saw as harmful. California wants the Court to apply the same standard to violent games.

Who's for it? The law was written by California Senator Leland Yee, a child psychologist who, ironically, has also authored several bills protecting free speech rights. In a recent press release, Yee said he hopes the Supreme Court will give parents a valuable tool to protect children from the harmful effects of excessively violent video games. "Parents – not retailers or game makers – should be able to decide whether or not their children can play in a world of murder and violence that often degrades women and racial minorities," he said. "The video game industry should not be allowed to put their profit margins over the rights of parents and the well-being of children." Yee, along with the California Psychological Association and the American Academy of Pediatrics, California, submitted a brief of amicus curiae (info or testimony not solicited by either side in a legal case) in July detailing numerous studies that link media violence with increased aggression or violence. "The interactive nature of video games is vastly different than passively listening to music, watching a movie or reading a book," said Yee. "This immersion results in a more powerful experience and potentially dangerous learned behavior in children and youth. Moreover, there is a practical side in favor of the State’s efforts; parents can easily discern if other forms of media are appropriate for their children, whereas violent video games can contain hundreds of hours of footage with the most atrocious, racist, and sexist content often reserved for the highest levels." Eleven other states -- Connecticut, Florida, Hawaii, Illinois, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Texas, and Virginia -- have also submitted their own amicus briefs in support of the California law.

Who's against it? Numerous members of the video game industry have weighed in on the controversial case. The Entertainment Merchants Association and the Entertainment Software Association, in a Supreme Court filing, both argue that video games -- like literature, art, movies, comic books, television and theater -- are a protected form of free speech. By seeking to restrict said speech, the California law, they say, is unconstitutional. Activision CEO Bobby Kotick has called the law "beyond absurd" and says that taxpayer dollars could better be spent educating consumers and parents on the ESRB's rating system. Meanwhile, the Video Game Voters Network, a group sponsored by the ESA, has been quite vocal over the issue, even going so far as asking gamers to mail Leland Yee old, broken game controllers with a message that reads, "I believe in the First Amendment!"

Outside of the video game industry, many other media organizations have come out against the law as well. The Media Coalition filed a brief back in September asking the Supreme Court to uphold a lower court ruling that found the California law to be unconstitutional. The brief was signed by many coalition members, including the American Booksellers Foundation for Free Expression, the Association of American Publishers, Inc., the Freedom to Read Foundation, the National Association of Recording Merchandisers, the Recording Industry Association of America, the Association of National Advertisers, the Amusement & Music Operators Association, PEN Center USA, and The Recording Academy. Organizations that all recognize how the law could potentially affect their own entertainment mediums if the Supreme Court rules in California's favor.

Marvel Comics creator Stan Lee also sides with the video game industry, and remembers a time when politicians tried to censor comics in the same way. "Comic books were burned," he says in a letter to the Video Game Voters Network. "The State of Washington made it a crime to sell comic books without a license. And Los Angeles passed a law that said it was a crime to sell 'crime comic books.' Looking back, the outcry was — forgive the expression — comical." What Could Happen Next? If the Supreme Court rules in favor of the EMA and ESA? Nothing. Game developers might sleep a little better knowing that, yes, their creations are protected under the First Amendment, and game retailers might breathe a little easier knowing they won't go to jail if little Timmy manages to get his hands on a copy of Kane & Lynch 2. But if SCOTUS rules in favor of California? Patrick Sweeney, an attorney who represents clients such as EA, THQ, Sony Online Entertainment and Nintendo, thinks the impact it would have on the industry would be significant. "I believe the independent development community would be severely impacted," he recently told Industry Gamers. "Innovation, both from a creative and technological aspect, would also be stifled. The companies, brands and individuals that we should be embracing as the visionaries of this creative and collaborative industry will migrate their talents to a more expressive medium."

Of even bigger concern to the media in general is the precedent acceptance of the California law will create. After all, what's to keep lawmakers from trying to apply some vague standard of what "unacceptable" violence is to other forms of entertainment as well? "This law may be aimed at video games, but any restriction on violent content could then be applied to a much wider range of media," said David Horowitz, executive director of Media Coalition. "The potential impact of this law is clearly reflected in the wide range of mainstream groups that have joined our brief opposing this law. There is no First Amendment exception for violent speech in books, movies, music, or other mediums, and we believe that the Supreme Court should not open the door to a new category of unprotected speech for video games or otherwise."

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Stefanie Fogel
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