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As Court Reviews California Violent Game Law, ESA Promises To Fight
by Leigh Alexander [PC, Console/PC]
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April 26, 2010
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The U.S. Supreme Court has decided to review California's now-infamous violent video game bill, which would restrict the sale of games to minors.
The law, authored by senator Leland Yee and supported by Governor Schwarzenegger, has more than once been ruled unconstitutional on free speech grounds, but an appeal with Yee's support has once again brought it under the Court's consideration.
With the law under review by the Court, its ultimate constitutionality again becomes a possibility, and today the Entertainment Software Association, the trade body representing video game developers in the U.S., released a statement in opposition to it.
"Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional," says ESA president and CEO Michael Gallagher. "Research shows that the public agrees, video games should be provided the same protections as books, movies and music."
Gallagher points to last week's ruling in the U.S. v. Stevens case, wherein the Supreme Court ruled in an eight to one decision that the government cannot restrict video depictions of animal cruelty, despite existing laws against animal cruelty itself.
This very recent precedent may signal a tough environment for Yee's law, as both cases deal with limiting First Amendement rights of expression.
"As the Court recognized last week in the US v. Stevens case, the First Amendment protects all speech other than just a few ‘historic and traditional categories’ that are ‘well-defined and narrowly limited'," says Gallagher.
The ESA cites a recent KRC Research poll finding 78 percent of Americans support the idea of First Amendment protections for video games.
"We look forward to presenting our arguments in the Supreme Court of the United States and vigorously defending the works of our industry’s creators, storytellers and innovators," says Gallagher.
UPDATE: Additional industry representatives weigh in on the issue.
The Entertainment Consumer Association's VP and general counsel Jennifer Mercurio commented: "The Roberts court seems to be tackling free speech head on this year. We are encouraged by the Court's decision last week in U.S. v. Stevens, which holds, among other things, that First Amendment protection is not reserved for 'serious' speech and we look forward to the oral arguments in the fall."
Said Electronic Arts public affairs VP Jeff Brown: "This is another sign that gamers need to wake up and get organized to protect their rights. Censorship and content restrictions are a very real threat to videogames. Any gamer who has not registered with the ESA’s Video Game Voter Network loses the right to complain when government starts taking games off the market."
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That is a poor comparison. Alcohol is not protected by the first amendment. Alcohol has been proved to be dangerous enough to even adults to warrant regulation. So trying to compare games to alcohol, tobacco or other drugs is not accurate.
If you are going to make comparisons it would have to be with other forms of media that are protected by the First Amendment.
No need to wait for the future. The laughter is quite abundant today.
In response to this, I wonder what he thinks of the ECA. Would someone who joined that group or any other consumer group not be able to complain?
Those video stores have those policies, yes, but it is not a federal offense to sell R-rated films to minors. The government cannot go after them. What they are proposing here is not only ridiculous, but quite scary frankly. I agree with you that the ESA's angle is a little awkward, but this is not the kind of restriction we want.
I agree with the ESA's position on this ridiculous law but is this quote for real?
I would LOVE to have gamers unite to fight for their rights. In addition to the right not to be subjected to censorship though, I would also advocate for consumer rights that the ESA is adamently determined to eradicate. Doctrine of first sale? Privacy? Backup copies? ESA is the biggest proponent of DRM scams that do everything possible to circumvent these consumer rights. I saw Stephen Metalitz (ESA) in person at the FTC townhall on DRM decrying the idea that consumers be allowed to keep what they paid for without having to repurchase if the DRM servers are turned off. You seriously think this guy is the kind of spokesperson gamers can trust?
To my mind, having the ESA speak on behalf of gamers is akin to inviting a great white shark to protect the rights of sea lions. As a gamer, I would never associate myself with the ESA. And I was sadly dissapointed by the ECA's paltry effort in representing gamers at the DRM townhall.
So yeah, organizing gamers is a great idea and I can see why the ESA wants large numbers of gamers to join their cause (more numbers = more lobbying credentials), what I can't see is how gamers would benefit from that relationship. When the ESA starts sticking up for the rights of legitmate, paying game customers by lobbying against over-the-top DRM implementations like SecuROM and Ubisoft's current scam, then I'll consider it. 'Til then, no.
There's no way they will censure.
They understand the power and respect of the First Amendment.
Even if this did go badly for us (gamers and developers) the impending cultural shift would see it reversed or at the least compromised into a largely acceptable position after a few years, It would be an annoying few years though.
Game ratings are enforced at the same level as movie ratings. Completely voluntary. There is no legal requirement to id for R rated movies.
"Even if this did go badly for us (gamers and developers) the impending cultural shift would see it reversed or at the least compromised into a largely acceptable position after a few years, It would be an annoying few years though."
Oh. Do you mean like the comic book industry quickly recovered from the Comics Code Authority? That only took 60 years and counting.
To use a poor but quick example, how do you distinguish between Mario Galaxy and Second Life? There probably should be a way. “Online interactions not rated by the ESRB” is pretty nebulous. You can't rate a game based on what people "might" do, but you can rate it based on what it's "designed" to have the player do. It doesn’t sound like that’s what this law does, so the appeal probably won’t fly, but the industry has made itself quite vulnerable from several angles and it’s only a matter of time before lawyers stop treating games as a the new comic books and instead treat it more like carbon emissions.
Don't join the ECA. They are up to their old tricks, this time charging people who had send in cancellation notices.
Parents just have a hard time taking an active interest in what their kids are doing. So they don't pay attention. And then when they eventually do take the time, they end up being surprised.
This isn't a freedom of speech issue, its a parenting issue. parents and kids need to come together over an activity every once in a while. (and I hope its a game because we make money off those)
Jesus, I am so sick of these LAZY parents not being parents. What a sick society.
Part of the solution for the gaming industry is presenting good research to the public and circumventing the dishonesty of political bluster. Politicians do not know the issues, nor do they know the gaming industry. Mostly they hold office based on a need for a job. Political morality is an oxymoron.
Unfortunately, you can't take the First Amendment out of this issue. The First Amendment is the keystone in this debate. This whole court battle is over where First Amendment rights end. At what point can we disregard the First Amendment and regulate speech.
Pedophilia has been ruled to be unprotected by the First Amendment because there is a clear danger to children in the production and sale of it. There is no such danger present for violent games. No one is harmed in the making of games and the sale of violent games does not encourage people to harm others in order to make more games.
The thing I worry about with the California bill (which I am very much against) is that it has very clearly been worded to avoid being about the First Amendment. It distances games from 'normal' media because they are interactive (an activity, not speech). It uses (IMHO pseudo-)"scientific" studies to back this up.
I can see this going either way.
I'm not sure how we can use movies as precedence. To riff on your response, Video Games are more like Toys then Movies. We ban certain Toys from being sold to kids.
SCOTUS is reviewing whether 1) violent content can be considered "obscene" (which it never has) so that speech containing violent content does not deserve First Amendment protection or 2) if it is not obscene, then is the law narrowly tailored to comply with the First Amendment prohibition against laws regulating speech based on the underlying content. Those are the only issues to discuss and the First Amendment jurisprudence is the best bulwark against the CA government's attempt to legislate morality.
I don't think the game industry should compromise the First Amendment rights afforded to other entertainment media, especially when the motivating reason for such regulation is the "protection" of children by politicians who have cut billions of dollars out of the state budget to fund education. I am sure the titanic needed deck chairs moved as well, but there are far better things for our government to concentrate on then the delusional crusades of 1 psychologist. The fact that violent crime in teenagers has fallen since the advent of the modern video game is a statistical hurdle no polititican or thought policing researcher has been able to explain. I don't see why the ESA or the ESRB should change for a small minority of gov't nanny types.