Thursday night in San Francisco, the public affairs forum The Commonwealth Club hosted a Gamasutra-attended discussion on whether sales of violent video games should be regulated -- now before the U.S. Supreme Court.

Though State Senator Leland Yee, notorious in the game industry for his efforts to promote regulation was scheduled to speak, he was unable to make the debate thanks to a budget vote in Sacramento.

Jim Steyer, founder and CEO of children's advocacy group Common Sense Media took his place on the pro-side, with Activision Blizzard executive VP and chief public policy officer George Rose taking con, and Michael McConnell, director of Stanford University's Constitutional Law Center focusing on the Supreme Court angle.

John Diaz, editorial page editor of the San Francisco Chronicle, acted as moderator. The irony, perhaps, is that the entire panel agreed that the Supreme Court would probably not find in favor of California when deciding its case.

Steyer is also a constitutional law professor and largely concurred with McConnell's opinion that the law, as it has been designed and argued, is likely to stand up to the majority of the Supreme Court's consideration. This made for, perhaps, a less tense debate than if Yee, author of the bill, had been present.

While there were discussions on whether it's a consideration of causation or simple correlation that some research ("junk science," per Rose) finds those who play violent video game are more prone to violence is beside the point, McConnell said, as experiments cannot be designed ethically to determine causation -- and the Court would not care, in his opinion, moreover.

Nor, he said, would the Court have much interest in the industry's self-regulatory efforts in the form of the ESRB -- vociferously represented in the form of Rose, who promised that Activision Blizzard assiduously works with retailers to "fire" any employee who sells M-rated games to minors.

Steyer's Case

"This is a pretty straightforward issue from a kid's standpoint, to us an organization," said Steyer. "We are huge believers in the first amendment, and free speech, and the ability for creative people to create and distribute and whatever they want."

However, a "small portion" of games are "hyperviolent and sexually violent," and the sale of these games should be restricted to someone over the age of 17, Steyer argued.

"The interactive nature of video games having an extraordinary impact on kids' emotional development," he said. "Our only issue is sale -- can you limit the sale of these games to minors?" He described efforts to do so as "common sense law," comparing the regulation games, if directly not their content, to alcohol and cigarettes.

"You can restrict the sale of products where there is a demonstrable harm to children. We do not feel this is a slippery slope case where all violence will be subject to governmental regulation," said Steyer, a question taken up later by McConnell, who said that this would in fact be a possibility -- albeit an unlikely one -- depending on how the Supreme Court decides.

Rose: Self-Regulation Makes It Irrelevant

Though McConnell downplayed its importance from a Supreme Court perspective, Rose argued that self-regulation has been sufficient so as to make this law superfluous.

Currently, "82 percent [of minors] are able to go into your neighborhood store to buy a bottle of beer. It's somewhere in the same neighborhood to go into Best Buy" and buy a violent game, Rose said. Though he didn't name the ESRB specifically, he argued that the game industry "should be put on a pedestal and shown as a shining example of what an industry can do with self-regulation."

Steyer later scoffed, saying "The idea that industry self regulation will solve the best interests of kids is not a credible argument." He sarcastically compared it to letting the banking industry setting its own rules. He also argued that the problem is not the large chains, but that "the case really came out of kids in [rough San Francisco neighborhood] Hunter's Point or East Oakland buying these games in liquor stores."

Rose said that these same stores would likely sell the same kids beer -- so were irrelevant. Of Yee and those who wrote the law, said Rose, "I'm not doubting that the intentions here were good, however the law that we have ended up with... is a perfect example of legislation going out of control and going nuts," based on "junk science."

Steyer later said it was "insulting to the American Academy of Pediatrics to call it 'junk science'," and asserted that Rose was degrading legitimate studies.

"The problem isn't the First Amendment, the problem is really the Second Amendment," said Rose -- referring to the issue of gun control, which also came up later in an audience question on the Columbine Massacre, for which Rose blamed the perpetrators' parents.

"This statute has so many holes as far as the constitution goes," said Rose, who is also an attorney. "It's not just under-inclusive, it's over-inclusive -- it managed to be both." It's also superfluous because "It's just good business -- we don't want to piss of the parents," he said. He also noted the game industry's "rating system allows parents to know far more about video games than any other rating system."

The Constitutional Law Perspective: McConnell

"I think that the court is going to be thinking about this case in a somewhat different way than either of these two speakers," McConnell observed. "Obscene, as to minors, it turns out, is a considerably lower standard than obscenity to adults."

There are three primary bases on which the Court will examine games, he said. "Content -- is there some significant difference between violence on the one hand and sexuality on the other? Does it make sense to say that the First Amendment protects the right of 12 year olds to purchase extremely violent materials when it doesn't protect their right to purchase" pornography?

This argument is "framed in an extremely broad way," in the proposed law, he said, "and it's been defended by the State of California rather poorly, I think, on an extremely broad basis." McConnell later said he expects the Court's decision to be exceptionally narrow and leave the door open for regulation in he future while closing it on this law.

As California is arguing it, "it does look like their arguments would extend to comic books, television," he said, which is a big problem. The Court would be worried about "how big a hit this is going to make in American culture."

The second issue is how "minors" are defined. Said McConnell, "17 year olds are very different from 12 year olds... The statute applies equally to both and I think that's something the Court is going to be very concerned about." They will likely be "very worried about making new law on when are youth [regulated]..." Further, it's a sticky issue in general. "We do not know which constitutional rights apply to children and which don't," he said.

Finally, it'll come down to the medium itself. "I think this is the most interesting thing about the case. The State of California did not present this issue very well... They essentially conceded that" games are "speech just like magazines, books, or newspapers."

However, a game is not "not just a speaker... It's not like a movie or TV show... What's going on in video games is that the gamer is actually engaging in simulated activity. The gamer is actually slicing off people's heads, is actually beating people, is actually raping young girls on a simulated basis."

Given that this is the case, he feels, "the Court is going to be wary of saying that the same standard is going to apply to this interactive media" as traditional media. That said, he's sure the proposed law is in trouble, because "the vagueness of this is very troubling. There's going to be enormous difficulty in defining" what the concept of the "human image", against which the law prohibits a certain level of violence, even is.

He concluded that "I think they are not likely to say that this statute is Constitutional but I also don't think they are going to go as far as the entertainment industry is going [want them] to."

"I think the court is going to be worried about walking down either of these paths," he said, of regulation or complete freedom, "and keep its options open" for later when there is better science and a better understanding of the effect games have on society.

What Games Will Be Affected?

"It would be and it should be a very narrow category of games," said Steyer. He guesstimated that it would be perhaps 1 to 2 percent of the industry's output. Later, Rose pointed out that just 5 percent of games released in 2010 were rated M.

So would Rose's company be in the crosshairs? Steyer said they would be. "In terms of Call of Duty: Black Ops, there is a good possibility that they would say that the sale of that should be limited to people who are over the age of 17."

And, argued Rose, if that happened, "no store in the country would carry it, and it would never be made. In addition to the Scarlet Letter, there's also a $1,000 fine for each unit sold." Rose showed contempt for politicians' ability to even enforce ratings -- noting that they couldn't balance the budget (which is why Yee didn't show up the panel.)

He also noted that the MPAA introduced the NC-17 film rating in the '90s -- to abject failure. "That was supposed to be a nice little alternative and was supposed allow for... controversial subjects to find their way into theaters and stores." However, he said, "There are no mainstream NC-17 movies." He compared this governmental attempt to regulate speech to the Soviet Union -- "that's the country I fled," he said.

"This particular supreme court does not get much credit for it but the truth is that it's one of the most free speech protective courts in history," McConnell noted, pointing out that it has recently ruled several times in favor of free speech, including in favor of the Westboro Baptist Church, which notoriously protests at soldiers' funerals.

Steyer later noted that the current Court is also "very pro-corporate," which could help the industry prevail.

Violence and Interactivity

Steyer said that "to blame all of the violence in the U.S." on games "would be very silly... But playing a game is very different from watching a movie. And very legitimate scientific data shows that."

Games increase both "violent behavior and becoming inured to violence," he said. "I am not worried that the people in this audience will become violent because they play Grand Theft Auto: San Andreas 500 times a day. It would be becoming inured to violence... The addictive nature of games, which is not raised" by the law "really needs to be considered," he added.

"I disagree with the idea that video games are special" when it comes to works of art, Rose countered. "All works of literature and art are interactive. If you are reading them and you are not involved in them mentally or even physically," then you are not engaged, he said. "It's a simplistic way of looking a video games and also looking at art."

Moreover, he said, "I think my kid is quite capable of recognizing the difference between a virtual human being and a real human being, and he's learning it from an early age and it will make him a better person."

"The interesting thing is that the most talented designers design the most violent games," Steyer admitted. Possible outcomes -- besides the aforementioned (and unlikely, in his opinion) chance that violence could be further regulated in other media, said McConnell is that "minors are subject to more and more regulation with perhaps less Constitutional protection."

Another outcome could be that "this medium is regarded as something less than pure speech. It certainly has major speech and communicative elements... I could imagine the Court saying that this a medium which is not purely speech and subject to lesser degree of protection than the First Amendment," McConnell said.

In Closing

Steyer had the last words. While he said that it's ridiculous to paint the industry as primarily responsible for violence, so too is false to say "that it's a complete failure of parents" to pay attention to what games their kids play. Both of them are "overly simplistic statement[s]. These are nuanced issues."

In the end, it's "not all the video game industry's fault; it's not all the parents' fault or responsibility." Steyer's hope is for regulation "where you respect both creative expression and speech -- and users."

He clearly does not see the current law facing the Supreme Court as that solution. "Hopefully over the next five to 10 years we'll come to thoughtful solutions," as video games "continue to grow as an important medium."

[You can watch a recording of the Gamasutra attended Commonwealth Club panel here. ]