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As Court Reviews California Violent Game Law, ESA Promises To Fight
As Court Reviews California Violent Game Law, ESA Promises To Fight
April 26, 2010 | By Leigh Alexander

April 26, 2010 | By Leigh Alexander
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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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Comments


Josh Green
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Sigh, I'm disappointed. And yeah, I'm worried. This isn't a good development for our industry. I know it seems ludicrous that the Supreme Court would rule against our obvious first amendment rights. But given the make-up of the court, this could go either way.

Mark Harris
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I would be surprised if they went against a rather consistent precedent set by circuit courts all across the country. Stranger things have happened, though, so here's hoping liberty wins for a change.

E Zachary Knight
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@Andrew,



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.

David Delanty
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@Stephen



No need to wait for the future. The laughter is quite abundant today.

E Zachary Knight
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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."



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?

Timothy Ryan
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I'm for free-speech and all, but the ESA is making it look like we WANT to sell mature games to minors. I agree that parents should really be making these decisions, however, many video stores have policies about renting R-rated films to minors, so why should a similar but formalized rule about Mature-rated games be a problem? It seems like a reasonable compromise. What is really lost here? So a parent would have to buy the game for their minors just like buying them a ticket at the movie theater. Please someone explain to me why this law is in our best interest to fight.

William Carpenter
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@Timothy



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.

Kevin Reilly
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Tim, many retailers voluntarily restrict sales of graphic content to minors in order to avoid these types of laws which seek to penalize them. Section 1746.1(a) states "a person may not sell or rent a video game that has been labeled as a violent video game to a minor". This law blatantly seeks to limit access to speech based on it's content, even though the FTC research indicates that the games industry has done the best job ensuring children don't have access to mature content through store policies and education by the ESRB. The CA law does not refer to ESRB ratings so that means a gov't agency or politically motivated DA's in CA will determine which games are too violent for children to be sold here. This is a gateway to censorship either by the state or by private retailers refusing to accept products with even a scintilla of violence. Can you imagine complying with 50 states statutes on what constitutes content deemed too "violent" for children. I shudder to think which enlightened school marms will be running those ratings agencies.

Josh Green
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@Kevin: What makes the law even more insidious is that it treats games differently from other media such as television, film/video, recorded music, print, etc. None of those other media have laws on the books that have the same restrictions.

Matt Ross
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Schwarzenegger is being a bit hypocritical isn't he? oh wait... Movies are completely different to games aren't they.....

Craig Dolphin
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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."



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.

Fiore Iantosca
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The Supreme Court just ruled last week on a big First Amendment rights issue FOR 8-1.



There's no way they will censure.



They understand the power and respect of the First Amendment.

Denis Nickoleff
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I don't see why they don't just enforce ESRB ratings at the level MPAA ratings are enforced. Some places do, which is good, but not all seem to. If they have to ID a lot of people then so be it. And if a parent buys a game for their child that they can't get on their own because of the rating, then they are accountable.



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.

E Zachary Knight
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@Denis,



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.

Christopher Enderle
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You also can’t compare games to books or movies. They don’t have subscriptions or virtual economies. And while all media follows cues, patterns, and structures that appeal to people in subconscious ways, I wouldn’t say any of them exploit a person’s mind the ways games do. The things described in this post http://www.gamasutra.com/view/feature/4319/the_designers_notebook
_selling_.php are the things the government could latch onto to justify regulation.



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.

Denis Nickoleff
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Ephriam. Yeah, I think I stand very much corrected on both counts.

Jeremy Reaban
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"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?"



Don't join the ECA. They are up to their old tricks, this time charging people who had send in cancellation notices.

Tommy Hanusa
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Maybe we should pass a law that parents should spend more time with their kids. that way the parents will know what their children are being exposed to and either take corrective action or help their child figure out what they are being exposed to.



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)

Fiore Iantosca
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Tommy Hanusa is 100% dead on.



Jesus, I am so sick of these LAZY parents not being parents. What a sick society.

Luis Guimaraes
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Oh yeah, now terrorists are developing video games to raise violence rates and promote a civil war in the near future...

Brandon Davis
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As noted in previous comments, the gaming industry needs to be more proactive in protecting their first amendment rights. It must also accept and understand that politicians are merely amateur social manipulators. Their deceit is to deflect criticism from their own failings to something that they can self-righteously galvanize public opinion. Its their only hope for continuous re-election.



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.

E Zachary Knight
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@Andrew,



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.

Doug Poston
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@ Andrew: Capcom can make a game with pedophelia in it, they just can't sell it in the US (or many other countries). (Not that Capcom would do such a game they, like most people, draw a moral line far short of anything like that)



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.

John Mawhorter
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Ironically I would agree that video games are more like an activity than speech, but I disagree that this means they should be regulated differently from books, movies, etc. Clearly the precedent set should mean that the Supreme Court rules in the industry's favor, but I'd be very wary about the outcome. Certainly video games can contain speech (cutscenes, text, etc.) but it seems a good point that they are more like activities than speech. Clearly the activities designed into a game are the artistic intent of the designer, however, so I don't see why that shouldn't be protected.

Doug Poston
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@Andrew: While the ESRB rating system isn't perfect, it has been shown to be better then the movie industry rating system (easier to understand, more open, more enforced, etc).



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.

Kevin Reilly
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@ Andrew: You are confusing a lot of irrelevant issues with the actual case before the court. 1. Toys are regulated for physical hazards (i.e. lead paint or choking hazards) and not content. 2. Pedophilia would not be protected by the First Amendment because it would be considered obscene as it is child pornography and therefore would be illegal to distribute in the US to any person. 3) If games are an activity as you suggest, then what does the activity consists of? Watching TV and pressing buttons?



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.

Victor Boone
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If no one confronts this type of censorship it will eventually pass, control freaks never stop, they just attack from a different angle. They wear you down until you start to believe "what's to be afraid of" or "that doesn't sound so bad", just ask Howard Stern fans. But if we just sit in or comfy chairs on our expanding asses and hope everything turns out OK, we're going to get steamrolled. Believe me there are people out there that think it's their duty to tell everyone else how to live. If we say nothing we have to look no further than a mirror when it's time to cast blame!


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