If it's crap ... We'll tell you
A major victory for the video game industry has been handed down by the Supreme Court today. In Brown v. Electronic Merchants Association (EMA), the Supreme Court has ruled in a 7-2 decision that a law prohibiting the sale of violent video games to minors is unconstitutional. The main reasoning for this, as found in the opinion by Justice Antonin Scalia, is that video games deserve the same First Amendment protections of freedom of speech as do books, films, and newspapers. This is a huge step forward for an industry that has long been the target of politicians and parental watchdog groups. And while there are many that question whether it would be appropriate for a child to be able to play games like Mortal Kombat or Grand Theft Auto, the ruling today will have a long-term positive effect in allowing game developers to push the envelope on what can be talked about in games.
First, I'll give some background on how this case arrived at the Supreme Court. Back in 2005, the California Legislature passed a law (that was signed by Governator Schwarzenegger) that banned the sale of "violent" video games to anyone under the age of 18 and required additional labeling beyond the standard ESRB ratings (the E, the T, or the M ratings). The Entertainemtn Software Ratings Board (ESRB) is a private organization, similar to the MPAA, that provides ratings on video games depending on the amount of violence, nudity, and suggestive themes used in a game. The reason I put the word "violent" in quotation marks, is because the law itself is incredibly vague as to what "violent" actually means. This will be important later. But the way the law was written was similar to other laws passed around the country that were ALL struck down by various Appeals Courts for infringing on the First Amendment. Last year, the Supreme Court agreed to hear the case after the Appeals Court struck down this particular law to settle the matter once and for all.
A little background to those unfamiliar with the American legal system and what the First Amendment is. In our judicial system, you can appeal the decision of a district court in one of the 13 Circuit Court of Appeals. A decision from one of these courts can be appealed to the Supreme Court, the highest court of the United States. The Supreme Court listens to only a few cases per year, usually those dealing with whether a case was decided in conformity with the US Constitution and its Amendments. The Amendments were written as part of the Constitution that enumerates the basic structure of how our government works. These Amendments enumerate the basic rights every citizen has in the United States, ranging from the freedom to bear arms, the right to an attorney, the right to drink alcohol after the age of 21, and the right to vote after the age of 18. The First Amendment was particularly notable for this case because it reads:
Congress shall pass no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press....
What this Amendment grants American citizens is the protection of freedom of speech, to say what they believe freely without fear of government regulation or intervention. But this freedom is not without limits. You can have laws that forbid screaming "fire" in a theater, you can have laws that forbid inciting violence aganst other people, and you can have laws that forbid showing obscenity to minors. The Supreme Court famously decided obscenity was allowed to be restricted in Ginsberg v. New York, a case that forbade the sale of nude magazines to minors. Now, California tried to use this case to find that violent video games are obscene and should therefore be within the power of the states to regulate. Ten other states (including Florida and New York) supported California in passing this law and showed their support during the Supreme Court proceedings.
So what would this law mean for the video game industry? What would be the harm in allowing the government to regulate the sale of video games it deems to be "violent"? The problem is that this would leave a select group of people to define what violence is. For DECADES, artists in the comic book and film industries have fought continuously against government censorship of their media for their depictions of violence, for fear that it would negatively influence children. Over the years, the Circuit Courts and the Supreme Court have defended films and comic books as expressions of speech, and now video games deserve the same protection. It is up to consumers and the industry itself to regulate what can be shown to minors and what cannot. The self regulation systems already used by comic books, films, and television have worked before; and video game's own system works just fine.
A ruling in favor of California could have disastrous effects on the video game industry. If it was truly a crime to sell "violent" video games to minors, stores like Wal-Mart, K-Mart, and others would be very reluctant to sell these games for fear of getting sued or fined by the government. In turn, this would force publishers to instead pressure their developers to censor their own games to ensure they would not receive the "violence" label. Worst of all, a group of people would have to be selected to judge what would constitute a violent video game. Video games would be considered as something distinct from comic books, novels, newspapers, films, and television. As something that is NOT art, something undeserving of freedom of speech. The video below does a great job of explaining the consequences of explaining the effects of this law:
But this was not the future the Supreme Court envisioned. Instead, Justice Scalia lambasted the California law, claiming "Disgust is not a valid basis for restricting expression". Even better, he found that the "scientific" evidence supported by California in showing that video games influence children was not compelling at all, putting a screeching halt on all of those silly studies that claim video games are bad for kids. Also, video games already have a rating system (that ESRB system I mentioned earlier) that is in fact effective. As a matter of fact, the Federal Trade Commission conducted a study and found that retailers turn away at least 80% of kids trying to buy age inappropriate games, this was much higher than a similar study of kids buying their way into R-rated films without parents. Justice Scalia went on to compare video games to other forms of violence in literature (such as Grimm Fairy Tales).
The Court finished with this wonderful quote: "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny.""
If you got some free time, the full text of the opinion can be found here. To me, this is an important day for game designers and people who love video games. Once and for all, the US Government nor any of its 50 States can never restrict the sale of video games nor attempt to define what violence is. This will be a controversial decision to be sure, and I would love for Spill to get in on the debate. Share your thoughts below.