LGJ: Supreme Court Decision Doesn't Bode Well

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The recent FCC v. Fox decision seems to have gone relatively unnoticed in the gaming press. Yes, the case at hand was about broadcast media and the FCC, and yes, the makeup of the court is now certain to change since the decision came down. However, neither of these potentially distracting facts should take away from what this decision really is: yet another expansion of the government's censorship power over the public. If there is anything the gaming public should be paying attention to, given the continued anti-game activism, is successful control over other media. And there are really three major concerns that come from this ruling.

First, I want to make it clear what this ruling is not. The ruling is not an actual victory for game opponents. While it makes some suggestions, the precedent can't be directly applied to the game industry at this time. After all, there is no governmental body to control game releases because those releases are not being made over licensed broadcast spectrum. After all, the government only controls TV broadcasts because the government owns the airwaves. More importantly, this ruling is not purely about censorship or the First Amendment. A significant part of this case is administrative law, and for those same reasons, it's not applicable to the game industry.

I don't want to discourage you from reading the seventy-plus-page opinion, but to offer a brief summary as an alternative: the case revolved around the use of the "F" word on Fox as an expletive during two live events. Fox did not censor the use of the word, and the FCC fined the company, changing from previous policy where an isolated use of a curse word as an exclamation wasn't generally punishable. The argument was that these uses struck a "first blow" at impressionable minors and that a policy exempting these expletive uses would lead to increased use on broadcast television. The Appeals court rejected the FCC's stance, but the Supreme Court overturned the decision allowing the FCC to proceed with its new policy.

The first of the three major concerns is the willingness of the court to accept censorship in this manor. It is interesting to see that as media has become more open and permissive, the court has allowed a stricter policy on broadcast media to move into place. The court actually acknowledges this point in the majority opinion, describing the broadcast media as a "haven" for parents compared to cable TV. Arguably, this would be the case with movies and games as well. If the court truly intends the broadcast media to be the haven compared to other media, then it suggests it won't be eager to see controls on other media. On the other hand, the court may view games as a children's media (erroneous as that opinion is). If that is the case, then it may be another place the court desires to see as a "haven."

The second major concern is the likely increase of interactive elements in television, and how those elements may allow control of television to bleed into control of some, if not all, of the gaming space. Tech demos of interactive TV are by no means uncommon, and DVRs like Windows Media Center and TiVo already have interactive elements to some degree. It is only a matter of time before the next generation of television, with interactive broadcast media, becomes readily available.

At that point, when the lines become blurred, it's the possible expansion of FCC control that should worry the game industry to the extent its included in the broadcast space. To me, it's amazing that parental controls aren't already mitigating much of the FCC's role in controlling TV, and it would be entirely possible that those kind of controls may be in place before interactive broadcast TV is popular. The key is to prevent the FCC from using that fusion as an opportunity to increase its role into the gaming sector as well.

The third concern is the potential for an entirely different breed of censorship to have a greater presence with the confirmation of Sonia Sotomayor. Sotomayor has had a lengthy career on the bench, and her rulings are a bit of a mixed bag for the industry and for gamers, making her impact difficult to predict. On copyright, for example, her opinion in the NY Times case might bode well for publishers rights, but not necessarily developers; while her opinion in Castle Rock doesn't bode well for fair use. Speaking to the First Amendment issues, there's an equally mixed bag. Her record has generally been in favor of free speech, no matter her personal opinion of the speech. However, many would be quick to point out that decisions in other areas may make her more amenable to arguments for censorship in the name of political correctness. Based purely on her rulings, I would tend to think that if she remains consistent, this won't be the case. However, other justices have been known to shift their opinions once they reach the high court.

Despite the changes that are occurring in other countries, it seems that the US is, for now, still a place that values free speech over arbitrary controls on games with less graphic content than rival forms of media. However, unless we, as the gaming public, remain vigilant, it is possible that will change. Granted, we have little control if the Supreme Court decides to uphold a gaming regulation, other than pressuring the legislature to legislate otherwise or amending the Constitution to reverse the Court. But by remaining vigilant, hopefully we can prevent these decisions from ever being taken out of our hands.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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