Lawrence G. Walters of law firm Weston, Garrou, Walters and Mooney was at GDC to discuss censorship of game content "from the trenches." As an attorney who represents developers and publishers on such issues, Walters advises on such issues as how to avoid running afoul of the ESRB and triggering a public or governmental backlash, and also provides counsel in court on First Amendment issues, among others.
Negotiating these issues, Walters says, is a balancing act between differing perspectives -- the position that content should be regulated for various reasons, and the position that says that "the solution to bad speech is more speech." For now, the courts have tended to stand in favor of free speech -- but these battles often play out in the public forum, behind board room doors, and in the media.
In the first challenges for game regulation, the courts found that games were not sufficiently expressive to earn protection under the First Amendment, lacking the same thematic elements as other media -- but early on, that decision by judge Limbaugh in St. Louis, MO was overturned.
"It's only because these games were found to have free speech protection that all of these laws have been shot down," Walters says. Moreover, the country's mood is starting to swing toward the center, or perhaps even the left, posing an even greater challenge to those in favor of censoring content. The courts have uniformly held that content in games is "expressive material" entitled to full free speech protection.
So what would the government need to establish in order to regulate and control expression in games? It must meet the requirements as laid out by the "strict scrutiny" test -- first, a compelling state interest, such as health reasons or national security threats. Thus far, the government has failed at this threshold, since science does not support the theories that games cause harm. But assuming the government could succeed at meeting this requirement, it would face two more challenges: it would need to prove it was governing the content through the least restrictive means possible, and it would need to prove that the intent of the content governance was to address the source of harm and not expressly to censor First Amendment-protected content.
"The concept of protecting children from inappropriate material always gets some traction," Walters says. "Look at the list of legislation at the federal level -- the number of bills that have the word 'children' or 'protect' in them is staggering." Because of this, Walters says, the industry is often in the crosshairs of those who use the motivation of "protecting children" as a reason to try and censor video games. "In the court cases, the government keeps looking for evidence... to show that video games harm kids, but they have not been successful so far," says Walters.
Given that these moralistic arguments have foundered amid a lack of concrete evidence, Walters says that these groups will start to seek other avenues through which to attempt to censor games. "The morality and media types are forced to take a step back recently, and figure out what they're going to do and regroup a bit and maybe come up with another line of attack," Walters says. That new line of attack, he continues, is the idea that exposure to certain content affects children's development, and despite the dearth of studies to factually support that certain content either provokes addiction or encourages sexual behavior, this continues to be a popular idea among detractors.
"This is what you're up against," Walters cautions the attendees. "You have people who will accept anything that the junk scientists try to present as fact, and try to create legislation upon it." He warns that in the future, on the state and local level, theories of "pornography addiction" will continue to be trotted out in legislative discussion.
"This battle can't be won in the courts," Walters stresses. "It's really a battle for the hearts and minds of consumers."
Game companies, of course, care about how consumers are perceiving them -- therefore, Walters continues, this is a PR war as much as it is a legal battle. Game developers, he advises, need to remain sensitive to the concerns of the consumers without overcompensating into the arena of heavy self-censorship. "The industry must remain ever vigilant in an effort to foster a culture of free expression," he says. "The industry may be winning the PR war, but must continue efforts to educate parents, advocacy groups and legislators on the lack of harm to either children or adults for merely playing video games, and the importance of free expression."
Additionally, Walters says, "The video game industry needs to clearly and overwhelmingly debunk these theories with its own extensive research on the subject. To the extent that the industry can develop a research bank and debunk this junk science and addiction theory, it should do so before it needs it and not at the 11th hour."
Especially in an election year, Walters concluded, gaming will continue to be a "red meat" issue as candidates battle who will "protect the children" better.