Video Games: Protected Expression

Posted by Rampant Coyote on June 28, 2011

For those who follow video game news (and if you don’t, I don’t blame you) here in the United States, there was one piece of news that overwhelmed the rest on Monday: The Supreme Court finally weighed in, declaring in a 7:2 decision that California’s anti-video-game law was unconstitutional.

In this decision, they declared that video games were a form of speech granted protection by the first amendment. They declared that restrictions on the freedom of said speech were only granted in narrowly defined terms, and the California law was extremely broad (as with almost every bill attempting to restrict video game sales). They cited the lack of evidence of any sort of threat that would make restriction of the medium a compelling state interest. They noted the number of double standards brought into focus by this law, noting how California wants to have it both ways in their imposition of nanny-state laws in particular areas where something should be either a compelling state interest and applied universally, nor not.

The video games industry – and gamers – are elated. They should be. This draws to a close a very frustrating chapter for the medium in this country. Though it’s been less of an issue once the economy went into the toilet and legislators had bigger things to worry about (hey, I search long and hard for silver linings!), the last decade-and-a-half has been a rough one, legally, for us. I remember when Columbine happened, and the media – baffled that two middle class WHITE KIDS would go on a murder spree (talking about the “soft” racism of the media is a topic for somewhere other than this blog) – cast about to try and find something to blame, and anchored onto the video game Doom as the “real” culprit behind the killings. For a while there, we expressed a gallows humor in my studio about how it would be safer to state in polite company that you were a drug dealer than a video game developer.

I remember the insanity surrounding the “Hot Coffee” scandal, where a lame sex-based mini-game had been disabled from a Grand Theft Auto game but not deleted entirely, and gamers found a way to manipulate the program to re-activate the content. Oh, the uproar! Oh the sudden surge in legislation by politicians looking to capitalize on the scandal to score “family values” points.

And oh, the chilling effect these bills and laws would have had on the industry! Especially on indies, had the laws gained traction.

Now, I’m personally a socially conservative person. I’m a religious guy. I have issues with some of the content in many games. But I don’t consider my mindset to be a political viewpoint, because I feel most of the time it is none of the government’s business. While there are certainly exceptions, in general I feel that this is the role of religion (and philosophy), not the state, brought about by persuasion rather than compulsion. And the ham-handed rules set forth by the attempts at videogame legislation by politicians who didn’t have a clue what they were attempting to regulate universally did for more “collateral damage” than any effect on the games they were specifically targeting.

So I am thrilled by this ruling. Does this mean video games are in the clear? The war is over? A lot of folks are skeptical, and I acknowledge that some people aren’t going to rest until they’ve castrated the medium. Defenders need to remain vigilant. But I think time is on our side.New media and styles inevitably come under attack, and the onslaught against video games is in direct proportion to its growth as a medium. But the longer they survive, the more the culture becomes acclimated to it. I think that most politicians will consider the cost of trying to fight or bypass the Supreme Court decision. As the Nintendo Generation becomes parents and politically active, video games become a harder and harder target. And more of our elected officials have been gamers themselves.

I hope that this decision will have a ripple effect in many other nations. But for here in the U.S., this feels like an incredibly substantial victory, and one less thing to worry about as a gamer or game developer.

Filed Under: Politics - Comments: 11 Comments to Read

skavenhorde said,

100% agree with everything you just said and more. Sure there are certain lines that I believe shouldn’t be crossed, but just because I believe that doesn’t mean everyone should.

This “for teh children” argument is ridiculous. My mother would not buy me Leisure Suit Larry when I was a kid because it was a mature game. She decided that not the government.

For those of you interested in this there is a website dedictated to just this cause. It’s called Video Game Voters. You can sign up here if you wish: http://videogamevoters.org/

I just receieve an email from them about this topic and they have a pledge you can sign. I think it’s a little goofy actually, but you never know who doesn’t. Here is the gist of the pledge:

The Gamer’s Pledge:
Victory for Free Speech!

I am a computer and video game player, or game developer.

As an American citizen first, I wholeheartedly support the Supreme Court ruling to protect games as free speech, like any other form of creative expression.

I will defend these rights against attempts to subvert or manipulate the spirit of the ruling through legislative loopholes.

I will defend against any attempts to restrict the sale of computer and video games, which are nothing but aggressive attempts at censorship.

I will support continued efforts to fight for free speech of computer and video games, a right now recognized by the highest court in the land.

If you want you can sign up for that too. I signed the first petition, but this one is a little too silly for me: http://videogamevoters.org/blog/entry/victory_supreme_court_reject_california_game_law/
Spencer L. said,

I share the same feelings. I don’t like much of what others have inserted into these games. But to have government involved in the freedom of expression is intolerable.

I am satisfied with the ruling, yet on the other hand, it is troubling to see games that instigate blood-lust, rage, lust and all those vulgar material. Some developers are simply looking to cause a certain thrill through use of these materials, and it is only destroying moral values, and degrading human compassion.

I think there should more games that moves the heart, rather than produce a thrill through vulgar impulses.

I may have went off-topic, but that is just how I feel about all this.
Tesh said,

I’m all for freedom of speech, parents actually doing their jobs, and game makers pulling *themselves* out of the gutter. The less government gets in the way of those, the better.

So yes, I call this a good ruling… if an obvious one. Thomas’ dissent opinion was interesting, though. He asserted that parents should be the ultimate authority… and then went off into a weird logic train to “protect teh kidz”. Very curious.

http://www.gamasutra.com/view/news/35471/Supreme_Court_Decision_The_Dissenters_Side.php
Menigal said,

A great day for people everywhere, gamers and non. If something like this went through, it would set all kinds of horrible precedents. Now if only the Aussies would get the idea…
Rampant Coyote said,

I didn’t understand Thomas’s dissent either. It would be one thing if games were fundamentally different from any other product. But I don’t understand why he thinks games do anything different from any other product that allows them to circumvent parental authority. I mean, I appreciate the sentiment, but I think it was misapplied here.
Aelfric said,

This impacts squarely on my day job, so let me offer a few thoughts. First, though it is a good ruling, people everywhere seem to be taking it as “videogames are protected by the First Amendment!” That was never in doubt. The government did not argue the point, and everyone, even Thomas in dissent, accepts this to be the case. So while it shows that the government will be vigilant in according video games first amendment rights, it was not quite the apocalyptic showdown some made it out to be. Thomas’ dissent is very curious. Essentially, he argued, that given the sociobiological situation in the American colonies, there’s no way the framers of the constitution could have intended the First Amendment to apply to children. I am all for originalism, but Thomas’ originalism in this instance would have trumped the plain meaning of the statute. Which is certainly going too far. The war here is not over, however; a more narrowly tailored law might get the votes of at least Roberts and Alito. If there’s enough money and willpower, will see a very similar lawsuit in the not-too-distant future. Thank you.
WhineAboutGames said,

This “for teh children” argument is ridiculous. My mother would not buy me Leisure Suit Larry when I was a kid because it was a mature game. She decided that not the government.

The adults around me, on the other hand, thought having a ten year old girl playing Leisure Suit Larry was hilarious. 🙂
Rampant Coyote said,

Parental prerogative. I figured at age 15 my daughter could play the M-Rated Persona games, no problem. But I wouldn’t approve of them playing the M-Rated The Witcher 2. Ratings are a tool, nothing more.
SER said,

I don’t know enough about this law to speak intelligently on the matter. And I have no kids, so this is coming from an observer who is not completely informed on the subject. But wasn’t the law just restricting sales of M rated games to minors? And isn’t the rating system completely voluntary? Parents could still buy the games for their children. Isn’t that ultimately putting the decision in the hands of the parents?

You also hear game companies say these games are not targeting kids, etc. So if this is true why are they so opposed to a law that restricts the selling of games to minors? Should be up the parents? Right? It seems to me that it is about the bottom line. They do want to sell these games to kids. They just can’t say it, but they want the biggest possible market. And that includes children.

So, to sum it up, I agree with the ruling. I think game companies should be able to publish whatever they want. But it seems to me, this is less about freedom of expression and more about the bottom line.
Rampant Coyote said,

It’s the Law of Unintended Consequences. I’ve covered this a lot before, but here are some quick points.

What about unrated games? Games NOT rated by the ESRB? Hobbyists cannot usually afford the steep fees charged by the ESRB — ESPECIALLY if the ESRB becomes mandatory and overwhelmed. So it could kill a lot of indie gaming.

Even worse were laws (like one that some dorkwad tried to pass in Utah) that DID NOT specify the ESRB. Now, theoretically, anybody can accuse anyone of selling an inappropriate game. It becomes a ripe vector of attack against merchants that are even trying to do the right thing.

There’s the camel’s nose / slippery slope arguments aplenty.

And there’s simply the question of why should the government be involved in the first place? As cited in the ruling, the effectiveness at the voluntary procedures currently in place is 80%. The effectiveness of the stringently enforced alcohol market at preventing alcohol being sold to minors is only 82%. Is it really worth the expense, the regulation, the chance of fines and jail time, and the general pain in the butt just to achieve a tiny margin of improvement?

And this is for something that they haven’t actually been able to show any evidence of any “compelling state interest.” How much is a child harmed by playing a rated M game at age 12? I certainly haven’t wanted my kids to do it, but it’s not like alcohol, which is a drug that can cause extremely poor judgment, addiction for some, and even death in over-consumption. It’s simply a case of parents feeling – in their own judgment – that their kids aren’t ready for something like this.

Maybe some elite snob politicians feel they’d be better parents than those uneducated masses they stick their nose up at. Maybe they are right. Tough toenails. It’s not their job.

Anyway, the explanations provided by the justices have more rationale. But my biggest concern was the chilling effect that this would have had on the industry – how it would open the floodgates for more and more legislation against it, the imposition of bureaucracy on everything (which of course you KNOW makes things so much more effective), and making it so only the largest companies with the deepest pockets would have been able to survive – making more and more watered down games.
SER said,

Thanks for your explanation. Makes sense. I just was struck by the arguments against focused on free expression, etc. When in reality it seems to be more of an argument on economics. And, again, I’m with you, the government shouldn’t decide these issues. I just wish the industry would be honest about the reasons.

As far as the slippery slope argument goes, we both know it is a bit of a logical fallacy. It is wild speculation. Because happens X doesn’t mean W, Y, and Z will happen.

Again, I’m not upset about the ruling. Just incredulous about the reporting and the response.

Anyway, I’m against any laws that would stop the release of Frayed Knights.

Oh, and a side note, what fee does the ESRB charge? Just interested.