Analysis/Op-Ed: Brown v EMA

Monday morning, the United States Supreme Court decided, in a 7-2 verdict, to strike down the California game law which would have criminalized the sale of “ultra-violent video games” to minors.

The original bill, signed into law by Arnold Schwarzenegger, would have imposed a fine of up to $1,000 for anyone selling these “ultra-violent video games” without proper labeling or to anyone under 18.

While 7-2 seems like a pretty good margin, the reality of the decision is a bit more disconcerting. Two of the consenting judges (Roberts and Alito) were on the fence, but ultimately decided in the Electronic Merchant Association’s favor based on the weakness of the California bill in question.

Justice Alito alluded to this fact in his concurrence:

“I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.”

California State Senator Leland Yee (D-San Francisco), the author of the original bill, has gone ahead and decried the Court’s decision as  a corporate victory which puts profits ahead of our children’s mental well being:

“As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.”

Here’s the problem with Senator Yee’s stance:  I do agree that this is as much a win for corporations as it is for the little guys working on these games, but Yee’s law wasn’t struck down because the court would prefer to put companies ahead of kids. It was struck down because it was a bad law.

Political grandstander? Me? (Image from SF Examiner)

First of all the scientific basis of this law and California’s argument before the Supreme Court is faulty. There are numerous scientific studies that claim to provide conclusive evidence for both sides of the “violent games make you more violent debate.” Additionally, more often than not the funding for such studies come from groups that have a political interest in a particular conclusion and are therefore unreliable.

Even without the science to back up the California law, the language and methods of the bill itself should have been enough to get it shut down within the state legislature as it is vague and wreaks of ignorance about the industry it seeks to regulate.

For example, the law didn’t seek to criminalize the sale of all violent video games (which would leave us with what? About 15 percent of all games published?) but only ones determined to be ultra-violent by a state-run program. The law does provide guidelines for these distinctions and they are essentially the same as our nation’s ancient obscenity laws:

(1) “Violent video game” means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. (iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

How would a developer or publisher forced to produce a game under these laws be able to predict whether or not they’re game would be considered overly violent and thus shunned to the backrooms like porn in a seedy video store? It would only lead to self-censorship and a white-washing of our entire industry.

The dissenters

I have some real problems with the arguments of the two dissenting judges, Thomas and Breyer.

Breyer’s position is based on a few points. First, he doesn’t believe the law was actually unconstitutional. He sees it not as censorship, but as a way to help parents make  “a choice not to have their children buy extremely violent, interactive video games, which they more than reasonably fear pose only the risk of harm to those children.”

The game industry’s argument is that’s what the Entertainment Software Ratings Board is for. It’s already a well enforced mandate that kids under the age of 17 cannot purchase M-rated games. In the most recent undercover shopper survey by the Federal Trade Commission, for example, only 13 percent of their kids were able to buy M-rated games. This is a better number than any other restricted entertainment sale, such as R-rated DVDs and movie tickets or explicit CDs.

Sales of M-rated games to minors have decreased drastically over the years and are now less frequent than any other restricted sale (image from FTC)

He also throws much weight behind the faulty scientific evidence I talked about earlier.

Finally, Breyer ignorantly compares games to pornography:

 “What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?”

Sigh.

First off, see the ESRB argument above.

Second, no game that involves explicitly gagging, torturing and killing a woman would be readily available to purchase at any sort of mainstream retailer. That game would be awarded an “adults-only” rating which stops it from being certified by Sony, Microsoft or Nintendo on any of their platforms. That means the only place it would be able to get published is the PC and well, that place is pretty much the wild west anyway. A minor can just as easily access pornography on the Internet.

Next there’s Clarence Thomas’ view which is also quite silly.

The majority of Thomas’ writing on the matter is spent talking about the history of parental responsibility in America. “Parents continued to have both the right and duty to ensure the proper development of their children,” Thomas wrote. “They exercised significant authority over their children, including control over the books that children read.”

Boy, that sure sounds like the argument we’ve been making all along. I’m no scholar of revolution-era American law, but I have my doubts that there were any sort of active laws restricting the sale of saucy pamphlets to children.

We’ve given parents enough tools to decide whether or not certain products belong in the hands of their children. We most certainly don’t need to have the government step in and cripple an entire expressive medium simply because parents are uninformed, lazy and uninterested.

Thomas’ position is a bit off. He is arguing that violent games hsould not be protected under the consitution becuase they are to be considered speech that is potentially harmful to children. This would put violent games in the same unprotected league as incendiary speech and obscenity (the legal definition of which is still quite strange and vague).

Why is it that this a standard that should apply only to video games? Why not restrict the criminalize the sale of ultra-violent movies to minors as well?

Oddly enough it was thoughts like Thomas’ that fed the origianl California law and ultimately sunk it at the Supreme Court. There’s just not enough of a reason to single out games.

Conclusion

This is a historic decision. The responsibility to do right by it is now in the hands of our developers and publishers. Uninformed, attention-hungry politicians will not stop bullying the industry simply because of this victory. It’s an easy target. It’s something a great deal of the voting public does not understand, a lightning rod for controversy and can be construed into posing a threat to children. That’s grade-a bait for a politician looking for something to do.

The reasons most cited for the Court’s decision is the unconstitutionality of the California game law, but what ultimately seems to have been it’s undoing was its language. It’s easy to imagine a world with a better law that actually passed the judgment of the court.

And that’s scary.

Sources:

Supreme Court Opinion

Justia

Joystiq

Giantbomb

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About Matt Gerardi
Matt Gerardi is a journalist and musician. He also happens to write about video games.

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