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Court Denies Appeal For California Violent Game Law
Court Denies Appeal For California Violent Game Law
February 23, 2009 | By Eric Caoili

February 23, 2009 | By Eric Caoili
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Following a review of the law in late 2008, the U.S. Court Of Appeals has once again ruled against a 2005 California law seeking to restrict the sale or rental of "violent video games" to minors.

In the case of Video Software Dealers Association (now the Entertainment Merchants Association) v. Schwarzenegger, the court held the law as "an unconstitutional violation of the First Amendmentís guarantee of freedom of speech."

The state of California originally enacted the law to prevent the sale or rental of video games with violent content deemed "offensive to the community" or "especially heinous, cruel, or depraved", to consumers under the age of 18.

Under the law, which was to take effect on January 1st, 2006, customers wishing to purchase games listed as violent would be required to show identification, and retailers who did not check for ID or show the labels would be liable for a $1,000 fine per infraction.

The EMA and the Entertainment Software Association, however, filed suit against California governor Arnold Schwarzenegger and others to prevent its enforcement, arguing that the law violates their rights under the First and Fourteenth Amendments to the U.S. Constitution to freedom of expression and equal protection of the laws.

A federal district court judge barred enforcement of the law on the basis that it was "unduly restrictive" and "used overly broad definitions," and that the state failed to show that the limitations on violent video games would actually protect children.

The state appealed the decision, and a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit heard oral arguments for the appeal in late October, 2008; their decision was announced earlier today.

"We are extremely gratified by the courtís rejection of video game censorship by the state of California," says EMA president and CEO Bo Andersen. "The ruling vindicates what we have said since the bill that became this law was introduced: ratings education, retailer ratings enforcement, and control of game play by parents are the appropriate responses to concerns about video game content."

He continues, "Retailers are committed to assisting parents in assuring that children do not purchase games that are not appropriate for their age. Independent surveys show that retailers are doing a very good job in this area, with an 80 percent enforcement rate, and retailers will continue to work to increase enforcement rates even further. The court has correctly noted that the state cannot simply dismiss these efforts."

Andersen notes that government officials may push for the state to ask the U.S. Supreme Court to review the decision, and says California should ignore those calls, as it already was forced to pay $282,794 to the ESA for attorneys' fees, money that would've helped with the state's current budget difficulties.

"The state has already wasted too many tax dollars, at least $283,000 at last count, on this ill-advised, and ultimately doomed, attempt at state-sponsored nannyism."

"This is a win for Californiaís citizens," adds ESA president and CEO Michael Gallagher. "This is a clear signal that in California and across the country, the reckless pursuit of anti-video game legislation like this is an exercise in wasting taxpayer money, government time, and state resources."

"In the end, common sense prevailed with the court determining that, after exhaustive review, video games do not cause psychological or neurological harm to minors. And, that the ESRB rating system, educational campaigns and parental controls are the best tools for parents to help control what their children play.Ē


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Comments


David Delanty
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"The EMA and the Entertainment Software Association, however, filed suit against California governor Arnold Schwarzenegger..."



Totally off topic, and admittedly a bit of a petty contribution. But even five years after the fact, I *still* can't finish that sentence without giggling afterward.

Mike Lopez
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In your face, would-be censorship nazis.

Ryan Wiancko
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I am not quite sure how this is different than not allowing children in to see R rated films?

Obviously there is a greater need to have parents play an active role but they can't be watching their kids all the time and just like we don't allow a 12 year old into a horror film or a Porno theater why is it is all of a sudden alright to allow that same 12 year old to play Dead Space?

Andrew Heywood
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"I am not quite sure how this is different than not allowing children in to see R rated films?"



It's not, that's the point. Right now it's the same - you go to see an R/18 rated film, if they think you're not old enough, they ID you. In the analogy, the proposed laws would essentially just have meant that every person going to see an R/18 movie would have to be ID'd, there would have to be big signs up saying "THIS MOVIE IS AN 18!!!!!111!!1!", and the cinema would get slapped with a huge fine if it failed to ID anyone going to see the film.



So the point is just that it's unfair to put games retailers to the extra expense/hassle for something that ultimately would make no difference because, as we all know, it's by-and-large the parents who give these kids the games.

Andrew Heywood
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And the difference is still that parents in general still think games == kids. Hence why:

1) There is an uproar over every violent game, because ZOMG THAY R TRYING TO SEL DIS 2 MY KIDZ!!!!11!! and

2) They buy whatever game their kid asks for because it's a game, and games are for kids.

Jake Romigh
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Actually, there is a big difference, from what I can tell from the wording of this writing. It seems that they would require ID for arbitrary definitions of their own instead of the now standard ESRB ratings, which act is the same way MPAA ratings do, where "M for Mature" would be "R" in the movie ratings.



I think if they carded those games according to the ESRB, I wouldn't have much of an issue with it.

Mark Harris
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The major reason this law can't get past the courts is because it is incredibly vague and ambiguous. The judges have essentially said that the definition the law uses to determine under which circumstances a fine can be issued could be and should be much more specific.



I don't think for a second the courts would overturn a law that specifically says that there is a fine for selling games rated Mature by the ESRB to a minor. At least, none of the dissenting arguments so far (that I've read) have mentioned putting an undue burden on the gaming and game retail industry in relation to other non-compliant media.

E Zachary Knight
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@ Mark,



There actually have been a couple of laws that have tried to use the ESRB ratings as the guidelines and they were thrown out just as quickly by courts. You cannot put in power a non government body. By using the ESRB ratings as the scale for what gets carded is putting the ESRB in a position of power.

Mark Harris
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@ Ephriam



I stand corrected. I've only read the summary judgements from this California law.



My second comment was about the rather uneducated state of the legislative, and at time the judicial, systems regarding gaming and its nature. I'm with you 100% that one cannot (constitutionally, morally, etc) put a non governmental body in power over the general public. Such is the reason there is no actual law preventing minors from attending R rated movies, which are rated by another private organization, the MPAA. My point is that there is a distinct difference between the way games and movies are treated by the California legislature. There is no support, nor any written legislation, to my knowledge, coming from the California legislature regarding movies; yet they are publicly supporting and pushing this anti-game legislation.



While I'm hopeful that any California court would throw out similar laws based on the ESRB ratings or any other criteria, I'm afraid that this won't be the case. Using their opinion that the reason for the unconstitutionality of the law being the ambiguous and non-specific nature, not the special burden on a specific medium versus other media or the lack of a specific governmental system to identify which games are "harmful" to minors.



With the further erosion of adherence to the Constitution by both major parties I'm afraid that it is only a matter of time before the courts "overlook" certain unconsitutionalities in game-censoring laws in an effort to increase the ever-growing reach of the nanny-state.

E Zachary Knight
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@ Mark,



Let's hope that is not the case and never will be.



But my understanding of both rulings on the California Law is that while the intent is noble, they have no evidence that supports their claims.



If you want to see what is happening and how the boundaries of video game legislation are being tested, you should check out GamePolitics.com There is currently a bill in Utah that would hold retailers liable under false advertising guidelines if they have a policy of carding for M rated game sales and then fail to follow through with said policy.

Ryan Wiancko
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http://news.cnet.com/8301-13506_3-10171682-17.html?part=rss&subj=
news&tag=2547-1_3-0-20



There's an article to said Utah law.. I am not sure why they wouldn't simply take any legislation or regulations governing the Film industry and reword it to apply as is to the gaming industry. It seems like such a waste of time and tax payer dollars when the framework could be copied over and applied to the exact issues that affect both entertainment industries.



It would be interesting to see the parallels to how the film industry was treated in regards to censorship and ratings, and minors etc etc when it was growing up compared to the games industry


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