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Video Game Regulation and the Supreme Court: Schwarzenegger v. Entertainment Merchants Association
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Video Game Regulation and the Supreme Court: Schwarzenegger v. Entertainment Merchants Association

November 1, 2010 Article Start Previous Page 3 of 3

The Bigger Picture

Prior to this section, the article has, to the extent possible, been a simple factual reporting of the California statute, the case history and related issues. However, it would be unfair to only discuss the case in a cold, analytical light. The next few paragraphs are devoted to some of the deeper policy considerations and possible consequences of the case.

Certainly, no one is questioning video games as speech in any of these cases to date. All parties agree that video games are speech, and are granted Constitutional protection. The question is what level of protection?

It should also be noted that no one is trying to "ban" certain types of video games completely. The California case in particular is about placing a sticker on a retail box, and some additional vigilance as it relates to sales of games to minors.

Still, some people against the legislation do believe that, at its root, this is an attack on games as art and/or games as speech. There is also a fear that this is the sharp end of a wedge ending in more aggressive game legislation.

Even the potentially flawed and preliminary studies on the possible link between games and violence leave legitimate questions outstanding. These questions do deserve to be answered definitively.

The answers will require further empirical study, but we can frame the debate in this hypothetical context: is it entirely fair to think that games should be treated the same as other creative forms of speech?

What about Moore's law essentially doubling computing power every two years? This is rapidly taking the industry toward photorealism. New technologies such as 3D projection and motion sensing, coupled with photorealism might mean we are likely just a few years away from immersive, photo-real, game experiences without a controller.

From there, how far is it to the Holy Grail of the holodeck that every gamer has dreamt about for the last 30 years? The main reason that game violence was not a large issue in the Pac-Man era, but presents a real issue now, relates directly to technological advances.

The game industry has created a bit of a tension with its own assertion regarding the teaching ability of games. The industry as a whole touts the powerful ability of games to teach everything from memory skills, flight simulation and military training, to surgery.

Yet, it also maintains that realistic violent games do not teach or motivate violent behavior. It is difficult to make the fine division between a military simulation teaching certain skills and a similar game not teaching those skills. This is made more difficult in the fully immersive, 3D, photo-real, movement controlled game environments of the near future.

The answer may lie in the fundamental distinction between fiction and non-fiction. There are books and films that teach and others that entertain. The books and films written for non-fiction audiences are constructed differently than those for fiction audiences. In other media, the intent and structure have been enough that people have usually been able to tell the difference. Empirically, it looks as if we do not know the answer to that question definitively for games.

In the 1940s and '50s, comic books were widely thought to contribute to juvenile delinquency. This led to the creation of the Comics Code Authority in the 1950s. Growing up in the 1970s and 80s, I have firm memories of the waning parental concern over the "dangers of rock and roll" and the growing parental concern over children spending too much time playing Dungeons & Dragons.

All of those cultural influences terrorizing youth seemed to pass by rather blandly in retrospect. For a thousand years before that, there was a long line of banned plays, books, and even opera. Two thousand five hundred years ago Socrates drank hemlock for "corrupting the youth of Athens." And now, ironically, parents will do whatever it takes to try to get youth to learn a little Socrates or go to the opera.

The fear and censorship around many of these media forms seems to coincide with the birth of new media forms. No one gets very excited over plays, operas, or philosophy these days. Books seem to keep their wrath-invoking power, but in historical contexts, even that appears to be waning in liberal Western society. Are games just the newest media form to succumb to an irrational fear and censorship, or is there something deeper here?

At the very least, it deserves thoughtful consideration. Game media is more immersive, more compelling, and more interactive than anything that has come before. Games also benefit from technological advances in ways that these other media generally do not.

Plays, film, and opera have not changed that much compared to what the last 30 years has brought to games and what the next 30 years will bring. Furthermore, to the extent those other media do change, it is often through technology that was introduced and perfected for use in games (CGI, mo-cap, 3D, interactivity etc).

It would be surprising to the legal community if this case went against all the prior similar cases on content-based regulation. The consensus expectation is that this case will fit with the other state cases on this issue (and the two lower court decisions in California). The preliminary injunction will likely be upheld and the statute will likely be held unconstitutional.

Still, there is a lot of buzz in the legal community about why the case was taken up by the Supreme Court at all. Remember, the case is competing for roughly one hundred oral argument spots among ten thousand applicants. Is it that all of the other courts have gotten it wrong? Perhaps the strict scrutiny standard applied above, and commonly throughout the other content-based regulation cases, is the incorrect standard. Perhaps this is a case of the High Court stepping in to settle the issue in a more final way.

The Court could see that, clearly, the states are not "getting it" with the other cases, and they know this type of legislation has already cost the state taxpayers more than $2 million in reimbursed legal fees.

The game industry and legal community cannot be sure of the reasons at this stage. However, everyone is sure that this case is the biggest case in the history of the game industry, and one of the biggest cases the Court will hear this year by any measure. People on both sides are anxiously awaiting the result.

For further reading: – This group sides with ESA on the issue, but has posted all of the filings from each group which are easily available for viewing in .pdf form. It is an excellent factual resource that, through a study of the filings, show the full breadth of both sides of the issue.

The author would like to gratefully acknowledge his student and legal research assistant Karen Sprung for her work on this article.

Article Start Previous Page 3 of 3

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