The Supreme Court will rule on a California law that would fine businesses that sold "violent" video games to customers under a certain age. This sort of law has been attempted before, and in the past it has always been struck down in the courts as unconstitutional. In fact, this very law was struck down after it was signed by Governor Schwarzenegger, who vowed to appeal that decision all the way to the highest court. So here we are.
Ars Technica spoke with Rich Taylor, the Entertainment Software Association's Senior VP of Communications & Industry Affairs, to find out why this law would be unconstitutional, and why it would set a chilling precedent for film, music, and publishing. "There is no reason to think this would be restricted to the video and computer game industry—that's what the initial law targets," he told Ars. "These things have a way of establishing a slippery slope and bleeding into others as well who depend on the first amendment for their right to express and entertain."
Giving the government power over our entertainment
"Speech can take the form of a film, words on a page, and music, but in this case we're talking about computer and video games. That's the crux of what we're looking at here," Taylor explained. "[The law] targets a specific media form, computer and video games, and it tries to place it and elements within it as unprotected speech. That's where it runs into problems." The problem is a simple one: it legislates some forms of entertainment, but not others.
Laws like this have been looked at by 12 other US courts in the past, and in every case the laws have been found unconstitutional. That sets quite the precedent for giving games the same protection as film and music, neither of which carry civil or criminal penalties in the case of sale to minors.
In this context, violent video games are defined as a title that "Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim." The violence "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." Taylor pointed out how subjective this definition is, and claimed it puts the onus on the stores to figure out what games fall under that definition. If they think a game doesn't fit that definition, but the government finds that it does, civil penalties could result. Selective enforcement is not only possible, but seemingly baked into the wording of the law.
Who has power to levy these fines? The law again offers a variety of options. "A suspected violation of this title may be reported to a city attorney, county counsel, or district attorney by a parent, legal guardian, or other adult acting on behalf of a minor to whom a violent video game has been sold or rented," it states. "A violation of this title may be prosecuted by any city attorney, county counsel, or district attorney."
The ESRB ratings don't matter
While games already carry ratings that offer much more detail than you find on movies, music, or books, the definition of a violent game doesn't take into account the ESRB rating. Some mature-rated games would be a liability to sell, while others wouldn't. There would be no ratings system for retail stores to look at and make the distinction between violent and non-violent; what constitutes a violent game is up to the city attorneys, city counsels, or district attorneys. What can and can't be sold, and to what customers, is left up to those members of the government, and they can rule independently of the industry-backed rating system.
Taylor says this could lead retailers to simply not carry violent games, or at least to look at what games to stock as a risk/reward calculation. "We're talking about an industry where the average gamer is 35 years old. There is every reason to have a broad spectrum of entertainment options available... when you try to choke the availability of those types of titles, it does have a chilling effect on the type of entertainment you can access."
The subjective rules governing what can or can't be sold to children mirror the Miller Test given to content to see if it's pornographic. The difference is that this is the first time that violence, in a single medium, is set to fall under government control. While pornography is already a tricky thing to define, even under the Miller Test, passing laws allowing fines to be levied on sales of violent material would be a large step toward limiting freedom of speech in other forms of art.
"Courts up to now have been loath to try and expand those categories that are not protected by free speech," Taylor told Ars. "I point out the Entertainment Merchant Association, in their brief, said that sex, unlike violence, is a subject uniquely considered outside the purview of children's entertainment. They point out violence, on the other hand, is a regular part of children's stories, as anyone familiar with classic fairytales is aware."
"The first amendment protects all speech, not just a few historic and traditional categories," Taylor said.
Why this will hurt California
The ESA has successfully fought laws like this many times in the past, and has often recovered attorney's fees. In Illinois that bill came to $510,000; it's unknown how much money has been spent on the failed law within California, but taking the legislation all the way to the highest court in the land is only running up the bill.
"From early on, the industry warned Governor Schwarzenegger and Senator Yee that this bill was unconstitutional and would be thrown out by the courts and that California taxpayers would pay the cost," said Michael D. Gallagher, president of the ESA, in a statement in 2007. "California citizens should be outraged at their elected leaders. Hard-earned tax dollars were spent on defending this law that California's state leaders knew was unconstitutional."
As California's budget worsens, it seems like there should be much better fights to be picking on behalf on the citizens.
Posts
No comments:
Post a Comment