Supreme Court to Look at Games: Industry Under Attack, Threat Level Red Edition

The United States Supreme Court will hear a case to determine the constitutionality of a law banning the sale of violent video games to minors. Arguments surround a California law (I wrote about in depth here) - which was signed into law and found to be unconstitutional before it went into effect. This will be the highest court to determine whether video games are afforded the free speech protections of the First Amendment to the United States Constitution - and it is very, very important to our industry. Free speech sounds like it addresses the things we say, but it protects everything from strippers to protest marches- just about anything to bring a tear to each American's eye. Thanks to the great work of The ESA, every time the question was raised in the past, the court's found the legislation to be unconstitutional, but the highest courts ruling on the issue were at the district court level. This means the decisions are not binding nationally and may be over turned by the Supreme Court.

Two tests must be met to justify restrictions on speech. There must be a compelling interest to be protected and no less restrictive way to protect the interest. The case is before the Supreme Court because the State of California failed to show either. The two California courts under review determined the State did not show sufficient evidence to support their claim that violent video games harmed minors - the same conclusion reached by The Byron Review in their report commissioned by the British Prime Minister (I talked about that one in depth too, here). The court further found there were less restrictive ways to prevent minors from playing games including the parental controls on gaming systems.

If the Supreme Court finds the law to be constitutional State legislatures across the country will try to garner favor with scared parents by enacting anti video game legislation. Politically, it is the safest thing they can do. The kids who suffer don't vote. The parents who are scared, do. We've already seen it. Just about two years ago, to congressmen Jim Matheson and Lee Terry completely ignored an FTC ratings enforcement study and misrepresented facts in support of an anti video game bill. Rather than pointing to the real improvement of the error rate against sales of M rated games to unaccompanied minors from 2000's 85% to 2008's 20%, they used an older study. They also forgot to mention the error rate for DVD's was 35% at the time of the bill. The California Attorney General is using the same type of misdirection saying "It is time to allow California's common-sense law to go into effect and help parents protect their children from violent video games." Well the law, which two California courts found to be unconstitutional is neither common sense nor necessary for parent's to protect children.

It sounds trite by now, but the the first argument against the law really is the slippery slope argument. “If you are going to start here, where does it stop?” While it is great to use at cocktail parties, and you can’t turn on talk radio without one caller paraphrasing “and then they came for me,” it hardly ever carries the day. The world exists on a slippery slope and sometimes we just have to wear spiked shoes and suck up decisions. The bigger concern is the chilling effect. First used in a legal opinion by Justice Brennan in 1965, the term refers to the social impact of penalty bearing legislation - and it's scary. If I am a game retailer and I know I will have to pay $5,000 if I accidentally sell an M rated game to a 16 year old – notice there is no intent requirement in the legislation – I just won’t sell M rated games. If I don’t sell them in the store, I am not going to order them from the publisher, who in turn will not make them any more and the average gamer, who is 33 years old, so shit out of luck. Even though we all love Mario Galaxy, Halo and Call of Duty are good too. Gamers soon get bored of sixth grade level content, and like the comic book industry before it, the game market collapses. More on this and how it really happened in comics in a eerily foreshadowing of our current situation here.

Rather than listen to California's Attorney General, or our Governor Schwarzenegger who believes, ironically, there should be no penalty for the sale of an R rated Terminator film to a minor but there should be one for sale of an R equivalent game, we should all heed the advice of the Byron Review:

Having considered the evidence I believe we need to move from a discussion about the media 'causing' harm to one which focuses on children and young people, what they bring to technology and how we can use our understanding of how they develop to empower them to manage risks and make the digital world safer