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California Submits Arguments For Violent Game Law
by Leigh Alexander [PC, Console/PC]
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July 13, 2010
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The Supreme Court is getting set to revisit a proposed California law restricting the sale of violent video games to minors, a process that sees a major milestone today as the state submits its written argument in favor of the measure.
It's spearheaded by California Senator Leland Yee, the original author of the law, whose support -- along with that of California governor Arnold Schwarzenegger -- has brought it again to the court's attention, despite the fact that such measures have repeatedly been ruled unconstitutional on free speech grounds.
Using for reference a Court decision that refused to ban media depicting cruelty to animals (United States v. Stevens), Yee says it was a lack of focus, not a lack of constitutionality, that stymied the law.
"Clearly, the justices want to look specifically at our narrowly tailored law that simply limits sales of ultra-violent games to kids without prohibiting speech," he said, according to a GamePolitics report.
"We need to help empower parents with the ultimate decision over whether or not their children play in a world of violence and murder," 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."
Courts have pointed to a lack of concrete evidence that video games directly cause violent behavior in children. The game industry has long argued in favor of self-regulation, with the Entertainment Software Association undertaking numerous national educational initiatives about ratings labels to enforce the widespread understanding that games rated M are not intended for minor audiences. Retailers have long been partners in the industry's voluntary self-regulation -- most currently decline to sell M titles to minors, but the measure would add a legal penalty, such as a fine, for any who do so.
Industry executives have also recently expressed concern about the law, which in their view could strain relationships with major retailers like Walmart -- the retailers could stop carrying mature titles if M-rated games are deemed suitable only for legal adults.
Electronic Arts CEO John Riccitiello also fears the establishment of "state level bureaucracies that define what’s marketable in 50 different jurisdictions across the U.S.," a development that he recently said would "screw us up in a real way."
But despite increasing industry-led advocacy in recent years for a strong, visible rating system and accompanying education to help parents determine what content is appropriate for their child, excerpts from the California measure show that the law's proponents don't think it's enough: "California has a vital interest in supporting parental supervision over the amount of offensively violent material minors consume. The Act ensures that parents – who have primary responsibility for the well-being of minors – have an opportunity to involve themselves in deciding what level of video game violence is suitable for a particular minor," it reads.
The crux of the law's argument is that violence in games is extreme enough to constitute obscenity, the same way that sexual depictions in pornography are: "Sexually explicit material that would be otherwise protected for distribution to adults can be considered obscene given the violent nature of its depiction. No rational justification exists for treating violent material so vastly different than sexual material under the First Amendment when reviewing restrictions on distribution to minors."
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ENFORCE THE LAWS
Enforce the law that a minor can NOT purchase adult games.
No theatres do not get fined. Ratings enforcement at theatres is strictly voluntary between the theatre and the movie studios. So Video games are already receiving the same treatment. What this law does is attempt to make games a special case for government enforcement.
@Fiorentino
What law? The Unconstitutional law that California is trying to pass? No thanks. I like my laws to be compliant with the Constitution of the United States.
It uses "excessive violence" and leaves it to the city council or state Attorney General to decide what constitutes "excessive violence"
This law would treat video games the same as Porn and Alcohol.
Just in case somebody isn't scared about this yet, imagine what would happen if somebody's parent thought that "Super Smash Bros" (an ESRB T-rated game) was too violent for their 13 year old. If their city council agrees, WalMart can get sued.
The ESRB rating means nothing at the US government level. It's an independent rating, like the ones given to movies in the US.
See Australia as to why this is a terrible idea.
I was unaware the video game industry was taking away parents rights by forcing them to give their children $65 and leave them unsupervised for hours at a time... My god all those poor parents.
Where is the legislation to make parents watch their children and show in interest in what their kids buy with the large amounts of cash they give them?
Look at the f***ing game you're buying your children. It annoys me to see somebody walk into GameStop and ask me to buy this game, having no clue about but simply complying with their children.
all I know is that it IS ILLEGAL in Australia to give restricted material to minors, but the laws are pretty poorly enforced...
just be thankful you have a mature rating for games at all :'(
all I know is that games SHOULD be given the exact same treatment as movies, and everything else.
But, wait. Didn't the 1984 Terminator (aka governor) take out an entire police station in an R rated movie? Isn't an R rating the equivalent of an M rating for a game?
Btw- let's have more Cali. tax breaks and subsisidies for more private prisons and weapons manufacturers, please!
Remind me not to sleep with him. ;)
No theatres do not get fined. Ratings enforcement at theatres is strictly voluntary between the theatre and the movie studios. So Video games are already receiving the same treatment. What this law does is attempt to make games a special case for government enforcement.
@Fiorentino
What law? The Unconstitutional law that California is trying to pass? No thanks. I like my laws to be compliant with the Constitution of the United States."
Ephriam Knight already said it all for me. Basically that is what I believe all in a nut shell. *thumbs up*
Though I would like to add that this discussion is about AMERICAN laws in CALIFORNIA. So what happens in Australia, Japan, Germany, or any other part of the world is pretty much irrelevant to the discussion. At least that is how I see it.
Maybe the gaming industry should seriously look into a distinction between MA games like Prince of Persia: Warrior Within and God of War 3. I think most would agree God of War 3 is distinctly more violent. If the gaming industry doesn't learn to appease lawmakers within the construct of their own workable rating systems, the industry periodically have to play these legal games.
If the industry doesn't address some of these concerns with a spirit of collaboration, one of these laws may one day slide passed the Supreme Court as constitutional. Then we'll forever have to play by the rules set forth by some looney congressmen. Just a thought.
Freedom of Speech. It is all protected by the First Amendment. The loony Congress people can try all they want but they will all lose every single time. The video game industry just needs to be very very careful in self regulation as the movie industry has been.
Congress People have no real power over the Supreme Courts by the way. Supreme Court Justices do. They are the ones set forth to protect the Constitution from this kind of total and utter BS. Which they will. I have faith that is what will happen in the long run. The First Amendment is a beautiful thing.
The difference between NC-17 and Porn is rather clear (compare Requiem for A Dream to Deep Throat or any pornographic website) But with games we're not given such a luxury of a game that is so outlandishly violent and ville that it makes A Clock Work Orange look like Wizard of Oz.
This video game censorship is just video games paying it's dues. Movies were heavily censored in it's early years and up until c. 1970 states regulated what can be shown on the silver screen (Taxi Driver is famous for being heavily edited across states.) MPAA is what weakened the states regulatory board. (Though MPAA has it's own regulating problems and has been inconsistent in addition to showing nepotism towards major studios.)
That was then, and given our social climate; i'm sure if this was taken to the National Supreme Court they would deem it unconstitutional. Censorship is something America likes to toy with but never fully commits to. If the government has to regulate what's deemed "too violent" in a video game scenario, then that level of violence can be applied to movies something our federal government has tried to avoid.
Let's assume that electronic games get treated the same as other media such as books, movies, etc. Well, the American Library Association (ALA) and many teachers and scholars across the country will quickly point out how hard it has been to fight censorship (and the fact that such fights do not always succeed). Check out the banned book list and consider that the list is only for works of literature for which bans have been requested in various "communities" throughout the years. It doesn't take into account major censorship that takes place through disctribution, retail, and even at the publishing level. For example, consider how the original children's book franchises The Hardy Boys and Nancy Drew were chopped up.
Now, extend this idea to live theatre... after all, it's just another form of creative expression, but one that happens to take place live rather than being placed into a physical medium of some kind. Plays (and other live performance such as ballet) can have all sorts of sexuality, violence, etc. We don't see ratings on plays and other live performance... oh, except for something like erotic dance because somehow sexuality and eros is unnatural, I guess.
The other major point that I didn't see anyone post is analogous to the ALA's anticensorship fights that I already mentioned. Leland Yee does not seem to understand the actual law regarding sexually explicit material and how the courts at all levels, including the Supreme Court, has continually admitted that there is no way to define a subjective concept such as "obscene" or, for that matter, even the basic idea of what is "sexual" versus what is not. The legal definition of "obscene" that was adopted by the courts during the last review in the 1970s is not the same as the actual dictionary definition. Instead, the concept was defined in a specific legal way simply to deal with banning "sexual material" (and actually determine what material was "sexual" versus what was not). See Miller v. California for extensive details. However, this was simply the latest attempt to decide how to handle the issue and the Supreme Court (again) stated that the definition and interpretation they came up with was simply a workable tool for the time period, not something that could be ultimately defined in some way.
What's the problem? Well, society has certainly changed in three decades. More importantly, the concept of "community standards" does not apply to the WWW. The "community standard" of the WWW is, in fact, the entire human race. This means that people have to learn to accept that other people have differing perceptions regarding what is okay for minors or even adults with respect to content such as sexuality and violence, or even comedy or other content. For example, Japanese entertainment for young children often contains content that Americans would deem too sexual or violent, but Japan has the lowest crime rate of any industrialized country. Likewise, I have seen a Latina mother in GameStop buy God of War for her young son (who was perhaps about 10 years old or so) despite the GameStop employee advising her about the content being very violent, sexual, etc. Her comment was something to the effect that, "well, he has to learn about this stuff sooner or later." This view matches the typical content in Latin American children's literature which often has plenty of violence and sexuality as well as extensive, strong swearing and other elements that other people would find inappropriate. I want to repeat that this type of material is children's literature (Bless Me, Ultima is a good example).
This is why Alan is incorrect in his assertion that other locales do not concern this law. Yes, they do, because there is no way to stop products from moving from one locale to another, especially not in today's digital era. For example, if this law was upheld, various import dealers and digital distributors may be in serious trouble, not to mention almost any convention where imported goods are sold, as well as various fan-made content.
Also, Michael's reply above seems very naive, at best, because America is one of the most censored countries in the world, particularly with respect to sexuality or even just nudity. This is why something such as a mother breast feeding her baby in public, or even semi-public, is a huge issue in America but it is not necessarily uncommon in many other cultures.
My mother (and probably my sister, too) would be quite happy to group Halo and Manhunt together despite Michael's claims that they should not be. You see, that is his subjective evaluation versus theirs. That's why attempts to legislate subjective values is simply censorship.
I agree
I guess violence is only acceptable if Arnold Schwarzenegger gets money out of the deal.
Developer/publisher kickbacks? lol
@Dave Endresak
Well put.
I just wonder how movies can be R rated in theaters but have a more outrageous version on dvd as the unrated version?
Maybe some games need the unrated rule?
I also do not really care about the "sexuality" argument being brought up here in this thread. While it is intellectually stimulating it has little to no bearing on this law as California Governor Arnold Schwarzenegger and California Senator Leland Yee are attacking the industry in California on the basis of violence not sexuality.
Dave Endresak - "This is why Alan is incorrect in his assertion that other locales do not concern this law. Yes, they do, because there is no way to stop products from moving from one locale to another, especially not in today's digital era. For example, if this law was upheld, various import dealers and digital distributors may be in serious trouble, not to mention almost any convention where imported goods are sold, as well as various fan-made content."
The law do not concern products moving across the Internet David. The laws concern products being sold via brick and mortar stores such as Best Buy or Wal Mart. So while you are in one sense correct your argument for the sake of the law is not. Again, it seems that the poor government is slow and behind the times.
As for the argument of what the actual population of the American thinks of what is decent or not, well, I would give a crap. I do not care. I only care about what is and is not protected in the end by the Constitution and the Rights given forth. Everything else is kind of fluffy and mutable. It changes with the mood and wind of the country. Again, this law will get struck down and in the end the industry will win the day.
Dave Endresak - "Also, Michael's reply above seems very naive, at best, because America is one of the most censored countries in the world, particularly with respect to sexuality or even just nudity. This is why something such as a mother breast feeding her baby in public, or even semi-public, is a huge issue in America but it is not necessarily uncommon in many other cultures."
Sexuality yes, violence not so much. What is the bent of sexuality? The article is about violence and video games. Go ask Germany about those two things for example. o.O
As for sexuality, I bring it up because it is classed together with violence as "obscene" material. It applies, even if your subjective treat them separately. Legally, that is... legally, they belong in the same grouping or consideration.
Both the movie and comic industry suffered greatly in the US because of our toying with censorship. It would be great if the game industry could skip some of that.
From a rational standpoint, three issues only arise in this case: (1) does the plaintiff in the case have standing to sue (i.e., can show real, tangible damages resulting from the legislation)? (2) Does the state of California have the legal authority to regulate merchandise sales at all? And (3) is legislation limiting the distribution of media to minors a violation of the First Amendment?
An unbiased evaluation of the three questions above leads to the following conclusions: (1) the plaintiff probably does have standing to sue, (2) if video-game sales can be categorized as inter-state commerce, only Congress can regulate them; otherwise, state legislatures have clear jurisdiction under the Constitution within their own boundaries, and (3) is highly unclear.
The State of CA is not proposing to ban mature video game sales. They're saying you have to be 18+ to purchase them. I don't know if the law is a good idea or whether its long-term effects will be helpful to society or detrimental. What I do know is the arguments I've read on this forum that it's clearly unconstitutional are far from convincing.
Everyone here knows when a risk presents itself and time constraints are involved, deliberate and decisive action needs to be taken to avert or minimize the risk. Since no one here actually knows with 100% certainty whether a law like this "could" or "would" be passed (as crazy, unconstitutional laws have been passed before), the "action" that needs to be taken now falls along the line of appeasing lawmakers and other groups by publicly increasing our own self-regulation and differentiating our current and future MA titles, (along the lines of Alan Rimkeit's suggestion), before someone else decides to do it for us, using their own definitions.
Instead of "only" discussing the dangerous aspects of the wolf outside, lets take action, go get some tools/weapons, outflank that wolf, and get him off our property for good.