Why Today's Supreme Court Decision Was Important

Why Today's Supreme Court Decision Was Important

...even if you're not American

Opinion by osubluejacket on 27 June 11 at 17:54

Today’s landmark decision in favor of the Electronic Merchants Association by the United States Supreme Court is very important. Unfortunately, as with most things concerning the law, such decisions can be dense and hard to understand for the lay person. For those reasons, we felt it was important to do a brief piece to explain why this decision was so epically important for the future of games and free speech, not only in the United States, but abroad.

Let’s start with the basics; what California’s proposed law (California Civil Code sections 1746-1746.5) WOULD have done had it stayed in effect:

1- The law would have made it illegal to sell a “violent video game” to minors and make offenders (the retailers, primarily management) pay a $1,000 fine per sale.

2- The law defined “violent video game” as the following:

"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: 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.
Now I know some of you might immediately be polarized by this. Some TA members who are currently “minors” as defined by the State might object to this simply because they want to continue playing “M” rated games.

On the other hand, some of you might be very much in favor of this law, since it aims to keep “violent video games” out of the hands of minors, perhaps with the goal of cleaning up Xbox LIVE a bit.

While both of those are valid concerns, the main issue presented to the Supreme Court was one of free speech and whether or not video games are entitled to the same 1st Amendment protections as other forms of media (books, magazines, movies, music, etc.). In essence, this law would have put video games on another level and thrown them into a more lascivious group with age-controlled substances like alcohol, tobacco and pornography.

Even then, some of you might think that this is OK. We DO want to keep “violent video games” out of the hands of minds that are ill-fit to process them and deal with them… at least we HOPE that parents do, but, for a moment, let’s look at the quote-unquote “Doomsday Scenario” that the EMA presented.

1- Retailers are fined for selling “violent video games” to minors.

2- Retailers, in the hope to avoid even the threat of potential fines, stop stocking “violent video games”.

3- The sale of “violent video games” decreases due to lack of retail space and opportunity for purchase.

4- Developers/Publishers lose money on “violent video games”.

5- Developers/Publishers stop making or severely cut back on the development and production of “violent video games”.

6- “Violent video games” are so drastically cut back that they become close to unavailable.

If you think that this is far-fetched, ask yourself this, how often do you see hardcore pornography on the shelves in “general” stores?

Gamers outside of the United States would not be exempt from this crunch as well. Just think about how many Developers/Publishers are based in the U.S. and how many copies of those games sell here. Do you think that those Developers and Publishers would continue to make “violent video games” if they couldn’t sell them in their home country? Of course not. Not only is the United States one of the biggest producers of electronic media, it is also one of the biggest consumers.

Now, granted, this was a “Doomsday Scenario”, but it would have easily been within the realm of possibility, especially with business guys like Bobby Kotick and John Riccitiello at the helm of major publishers who tend to focus on the bottom line.

A few American gamers have also wondered why this would matter to them, since they may not even live in California. This law was being closely observed by “media watchdogs” all over the nation (Hello, Jack Thompson!) and, if it had passed, would have enabled more states to pass (or attempt to pass) similarly worded legislation. In essence, even if you don’t live in California, this law could have been coming to a state near you.

At the end of the day, however, the Supreme Court ruled against California’s law with a landslide 7-2 ruling. Contained in the main ruling was a section by Justice Antonin Scalia that I felt perfectly described why singling out video games above other forms of media is unfair:

Writer’s note: The following excerpts have been slightly edited to improve readability, mainly the removing of specific page citations etc. I HIGHLY suggest that you read the full decision here.

California’s argument would fare better if there were a longstanding tradition in this country of specially restricting children’s access to depictions of violence, but there is none. Certainly the books we give children to read—or read to them when they are younger—contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.” The Complete Brothers Grimm Fairy Tales Cinderella’s evil stepsisters have their eyes pecked out by doves. And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops by grinding out his eye with a heated stake. (“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be skewered by devils above the surface. And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.
Finally, the following excerpt explains why the proposed law oversteps its Constitutional reach:

The Act is also seriously underinclusive in another respect—and a respect that renders irrelevant the contentions of the concurrence and the dissents that video games are qualitatively different from other portrayals of violence. The California Legislature is perfectly willing to leave this dangerous, mind-altering material in the hands of children so long as one parent (or even an aunt or uncle) says it’s OK. And there are not even any requirements as to how this parental or avuncular relationship is to be verified; apparently the child’s or putative parent’s, aunt’s, or uncle’s say-so suffices. That is not how one addresses a serious social problem.

California claims that the Act is justified in aid of parental authority: By requiring that the purchase of violent video games can be made only by adults, the Act ensures that parents can decide what games are appropriate. At the outset, we note our doubts that punishing third parties for conveying protected speech to children just in case their parents disapprove of that speech is a proper governmental means of aiding parental authority. Accepting that position would largely vitiate the rule that “only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to [minors].”

But leaving that aside, California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games. The system, implemented by the Entertainment Software Rating Board(ESRB), assigns age-specific ratings to each video game submitted: EC (Early Childhood); E (Everyone); E10+ (Everyone 10 and older); T (Teens); M (17 and older); and AO (Adults Only—18 and older). The Video Software Dealers Association encourages retailers to prominently display information about the ESRB system in their stores; to refrain from renting or selling adults only games to minors; and to rent or sell “M” rated games to minors only with parental consent.
The most impressive part of this section is that it goes on to state a Federal Trade Commission filing to Congress that shows “the video game industry outpaces the movie and music industries” in “(1) restricting target marketing of mature-rated products to children; (2) clearly and prominently disclosing rating information; and (3) restricting children’s access to mature-rated products at retail.”

In short, the court agreed that the games industry succeeds as a self-regulated watchdog of content and that its advisory system works better than any other form of media.

In conclusion, I think we can all agree that we don’t want people who are “ill-equipped” to handle “mature content” playing “M” rated games. We all wish that there was a better way to ensure that video games were only in the hands of people who are mentally and emotionally prepared to play them, regardless of age.

In this writer’s opinion, that power is not something for the government to legislate with a broad stroke, rather it is a discussion and decision best left in the hands of parents/caretakers. Today’s ruling has ensured that such choices are not left to the State, but rather placed in the hands of people who (should) know best: adults.
The opinions and statements expressed in this article are solely those of the author, osubluejacket.
If you have a gaming-related opinion that you'd like to share with the community, send a private message to osubluejacket with your article, including a title, strapline, and any additional comments or questions. If it is good enough, you might just be lucky enough to get your article on the front page!
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WraithDK
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Last post: 10 Sep 12 at 12:40
Posted on 27 June 11 at 18:01
Good thing that sh*t did not come true. My basic view: "It's your own, or your guardians, responsibility" :-)
CRAWFORD696
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CRAWFORD696
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Last post: 15 Nov 13 at 02:48
Posted on 27 June 11 at 18:03
Looks like the 10 year olds all dodged a bullet on this one ^_^ Anyways Im glad this law did not get put into action because it would mean even more kiddy games and less good games in stores today.
hawkman432
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Last post: 25 Aug 12 at 17:36
Posted on 27 June 11 at 18:04
so the violent bloody games could have became the hardcore porno of the video gaming world crazy what they should do is leave the limiting to the parents not the retailers
CounterInsurgnt - I hate Israel. I hate the fact that my tax dollars support the terrorist country of Israel.
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Last post: Yesterday at 21:27
Posted on 27 June 11 at 18:06
Ffs there are way more important things to worry about. This ranks up there with baseball investigations. Baseball sucks anyway.
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KiaKupo
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Posted on 27 June 11 at 18:06, Edited on 27 June 11 at 18:08 by KiaKupo
Let's fine parents instead :)


CounterInsurgnt said: Baseball sucks anyway.
FALSE! SO FALSE!
HUstlinonradio - Having to stretch my ethernet cable across rooms makes it difficult to play online for long periods
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Last post: 19 Jul at 01:08
Posted on 27 June 11 at 18:11
So Osu here is a question to you: are you accepting in the case that when a videogame retailer sells a game to a minor (there is no parent involved. Just the kid walking up, paying for the game and walking away) that there should be no punishment to that sales clerk or the retailer? Because it sounds so not only in this post but in discussions in the last one. To me i believe that retailers have a responsibilty outside of the parent to not allow any case to occur and can be punished by an entity with fines without having to automatically fear for sales.

I won't go again in further detail like i did in the previous topic regarding this but i please implore everyone to look at the discussion i had with Darth Beiber because it address's the points and flaws that both the gaming community in terms of retailers and parents have.

"For me again there can be an easy solution that the both of us i believe can agree on. The best solution to this will only come if there is DIRECT talks between both parties and if they iron out the concerns they have in a meaningful and mature manner. Then both Parent responsibilty (though more education through the ESRB and the government) and Retailer Responsibility (punishment who allow minros to purchase games but then having rewards for stores who annually do not) then we can be happier in the end. But then Which One of the sides wants that?
E Hero Killjoy
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Posted on 27 June 11 at 18:12
I could have read it wrong but in other words it would have killed violent video games if they can't be sold to minors? Cause I don't know what your doing in the States but in Canada it is illegal to sell M rated games to anyone under 17 without parental consent, and we're doing fine. In fact I would argue developers are better here then in the States. EA(Bio Ware), Ubisoft, Capcom Vancouver, etc.
Are You EXPd
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Posted on 27 June 11 at 18:14
it never ceases to amaze me the amount of children playing games rated far too highly for them. but do i stop and think these kind of laws need to be imposed? no. i think "that kid's parents need to be more responsible".

i see kids in shops with adults asking for this game and that game. are the parents really not seeing the rating or do they just not care? i think that adults who are not into gaming see consoles as toys, meant for children. they dont have the mindset that they would have taking their kid to the cinema to see saw XII or similar.

i bet that gaming parents are far more restrictive on their childs games than non-gaming parents.
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Undervirp
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Last post: 30 Jul 13 at 23:27
Posted on 27 June 11 at 18:17
hawkman432 said:hardcore pornoEveryone loves porn though!

It's good to know at least sometimes the Constitution is still recognized.
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osubluejacket
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Last post: Yesterday at 11:27
Posted on 27 June 11 at 18:19
Hustlinonradio said:So Osu here is a question to you: are you accepting in the case that when a videogame retailer sells a game to a minor (there is no parent involved. Just the kid walking up, paying for the game and walking away) that there should be no punishment to that sales clerk or the retailer? Because it sounds so not only in this post but in discussions in the last one. To me i believe that retailers have a responsibilty outside of the parent to not allow any case to occur and can be punished by an entity with fines without having to automatically fear for sales.Personally, I believe that games should be treated just like all other forms of media. Movie theaters are not fined if minors get in to see "Saw", nor are book stores if they sell a copy of Rushdie's "The Satanic Verses" to a 15 y/o. Likewise, Best Buy isn't fined if they sell a Pantera album to a 16 y/o.

I think games should be (and generally are) treated with the same respect. The study by the FTC shows that the ESRB ratings and voluntary merchant participation prevent over 80% of sales to minors, which is a greater rate than any other entertainment industry.
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Arenazombie
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Last post: 08 Oct 13 at 07:40
Posted on 27 June 11 at 18:19
In Germany its pretty close to what you called the "Doomsday scenario" here we got violent stuff banned from public sight and to be only sold in seperate parts of the stores where shopkeepers had to check age of everyone who wants to enter.
Since sales were pretty bad and no possibility to advertise these games was allowed they soon disappeared from german stores overall.
Its the smart ass way to pass the civil rights of freedom of speech and absense of censorship. They force companies to censor their media themselves so it can be sold in public.
Glad you Americans obviously care more about civil rights (except patriot act but thats another story).
Sometimes the world feels like Totalitarism of Hippiness with all this ban the violent stuff, ban that, together with political correctness, gender mainstreaming, recoverable energy etc.
Just let men be men by playing violent games, driving fast, drinking galleons of beer, hunting animals to BBQ them and sleep with countless prostitutes FUCK YEAH
end of political rant
James48025
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Posted on 27 June 11 at 18:21
Ultimately the responsibility falls on the parents to make sure that their children aren't playing these games until they seem ready to understand what they mean. And if they do decide to let them play these games early they better be right in the room with them and be ready to explain anything that the child might ask while playing.

Glad this didn't get passed.
I'm not as random as you think I salad
Lord Gothic
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Posted on 27 June 11 at 18:21
So this would have stopped kids from playing violent games whats wrong with that they should be 18 before playing them anyways.
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Posted on 27 June 11 at 18:23, Edited on 27 June 11 at 18:23 by xPut Name Herex
Ah Jack Thompson. In eighth grade we had to make our own political cartoon and I made mine ridiculing him. Fun times. Is he up to anything nowadays or has he been thoroughly disgraced?

Are You EXPd said:i bet that gaming parents are far more restrictive on their childs games than non-gaming parents.Very true, since they know what their children's hobby is. And that's the issue at hand here, many parents have no clue about this whole new world that really was only being developed when they were kids, and aren't putting in the time to figure gaming out either. That's failing a basic rule of parenting, learn about and understand your children's hobbies so you can determine if it a healthy or unhealthy one for your child.
I miss the good old days of WW2 Call of Duty
osubluejacket
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Posted on 27 June 11 at 18:23, Edited on 27 June 11 at 18:26 by osubluejacket
SiaM Sh said:Too bad that from "2." onwards you descended into stupidity. Stores are gonna stop stocking violent games just because they can be fined for selling one to somebody under the age rating? This is retarded. At worse they would just ask for I.D proof on every voilent video game sale.Just ask yourself this, when was the last time you saw hardcore pornography at a Best Buy or Wal-Mart?

When was the last time you saw hard, high-proof alcohol or tobacco on the shelf at a grocery store and not behind a store counter?

The same type of regulations that apply to those products would have been levied at video games. How many stores do you think would remodel a majority of their stock space to accommodate these new regulations, much less run the risk of thousands of dollars in fines?
In Soviet Russia, game plays you!
Undervirp
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Posted on 27 June 11 at 18:25
Arenazombie said:Just let men be men by playing violent games, driving fast, drinking galleons of beer, hunting animals to BBQ them and sleep with countless prostitutes FUCK YEAHI think you're on to something wonderful lol
Add me on live.
osubluejacket
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Last post: Yesterday at 11:27
Posted on 27 June 11 at 18:26, Edited on 27 June 11 at 18:27 by osubluejacket
Lord Gothic said:So this would have stopped kids from playing violent games whats wrong with that they should be 18 before playing them anyways.That's just it, it wouldn't have. This law would have fined retailers for selling to minors. Parents could STILL go and buy games for kids (which is often the case anyway). This law would have just put an intolerable financial onus on retailers and could have easily led to a situation much like Germany (as Arenazombie so eloquently described earlier in the thread).
In Soviet Russia, game plays you!
Dimmock
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Posted on 27 June 11 at 18:28, Edited on 27 June 11 at 18:29 by Dimmock
Justice Antonin Scalia uses "Piss on California's fire"

It's super effective.
ZUS ROCKS! That is all.
Posted on 27 June 11 at 18:28, Edited on 27 June 11 at 18:29 by
osubluejacket said:When was the last time you saw hard, high-proof alcohol or tobacco on the shelf at a grocery store and not behind a store counter?

The same type of regulations that apply to those products would have been levied at video games. How many stores do you think would remodel a majority of their stock space to accommodate these new regulations, much less run the risk of thousands of dollars in fines?
I deleted my comment because I cba to argue. But calm down a bit , we are fine anyway :)

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