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Analysis: What today's Supreme Court decision means to us
In 2005, California state legislature passed Assembly Bill 1179, a law penned by Democratic state senator Leland Yee which prohibited the sale of violent video games to minors. The law mandated the application of special stickers to titles deemed too violent, and slapped retail employees who sold those games to anyone under the age of 18 with a maximum $1,000 fine. The law was signed by then-Governor Arnold Schwarzenegger, but was struck down by the United States District Court for the Northern District of California before it could be enforced. Following an unsuccessful appeal of that decision in the Ninth Circuit Court of Appeals, the law's progenitors petitioned for a hearing in the United States Supreme Court. The petition was successful, the case was argued last November and, earlier today, seven of the nine Supreme Court Justices decided to uphold the decision of the lower courts: California Assembly Bill 1179 violates the First Amendment rights afforded to all forms of media in the United States. This decision obviously doesn't just affect Californian teenagers with a penchant for video games above their maturity level. It represents a vote of confidence in games and the non-governmental agency (see: The ESRB) which regulates their sale.
Supreme Court strikes down violent game-banning California law
The Supreme Court of the United States has issued its opinions on Brown v. The Entertainment Merchants Association, a case which argued the Constitutionality of a (since struck down) California state law which banned the sale of "violent" video games to minors. The majority opinion, decided upon by seven of the court's nine Justices, is to once again strike down the law. The majority opinion, in clear terms, states: Like the protected books, plays, and movies that preceded them, video games communicate ideas-and even social messages-through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection. Under our Constitution, "esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority." The decision falls in line with other decisions of the lower courts regarding video game-banning legislation, such as the respective decisions of the Northern District of California Court and the Ninth Circuit Court of Appeals, both of which found the law unconstitutional. There was, of course, a dissenting opinion (in this case, representing the concerns of Justices Thomas and Breyer) which states: The practices and beliefs of the founding generation establish that "the freedom of speech," as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians. I would hold that the law at issue is not facially unconstitutional under the First Amendment, and reverse and remand for further proceedings. We're sure to hear more from the Entertainment Software Association and other games lobbying groups in the coming hours, but the word from the highest court in the land is a promising one: Games, regardless of content, deserve the same First Amendment protections afforded to all other forms of expression in the United States.
ESA General Counsel lays out game industry argument to the Supreme Court
When the clock strikes 10 a.m. tomorrow morning in Washington, D.C., the Supreme Court will begin hearing oral arguments in the case of Gov. Arnold Schwarzenegger v. Entertainment Merchants Association. By now, you know how the results of this landmark case will affect the video game industry and its consumers -- but who's actually going to bat for the industry in tomorrow's hearings? More importantly, how does that litigatory sausage get made? Entertainment Software Association general counsel and senior vice president Kenneth Doroshow is one such batter (or sausage-maker, depending on which of the previous metaphors you followed). A media law heavyweight in his own right, Doroshow has served as an executive for the Recording Industry Association of America and as senior counsel the U.S. Department of Justice before joining the ESA in September 2008. Tomorrow, he'll be one of the legal representatives for the Entertainment Merchants Association, responsible for helping it make its side of the argument to the Supreme Court. Doroshow broke down the specifics of that argument for us earlier today. To learn about the case the ESA is presenting in court tomorrow -- as well as the possible repercussions of the Supreme Court's decision -- check out our Q&A with Doroshow after the jump.
How tomorrow's Supreme Court violent game case could affect consumers
Tomorrow, the United States Supreme Court will convene to hear oral arguments for Gov. Arnold Schwarzenegger v. Entertainment Merchants Association -- a case most gamers are likely familiar with. The court will decide whether or not to overturn the decisions of the Northern District of California Court and the Ninth Circuit Court of Appeals -- both of which found California law AB 1179, which bans the sale of "violent" video games to minors, to be unconstitutional. According to Entertainment Consumers Association vice president and general counsel Jennifer Mercurio, there's a lot more at stake in this case than whether or not mature titles will be legally withheld from Californian teenagers. Much, much more, in fact -- should the Supreme Court overturn the ruling of the two lower courts, certain First Amendment protections currently afforded to video games (and, by association, other forms of entertainment media) could be abolished, completely changing the landscape of the industry. Mercurio sums it up nicely: "I'd say it's clearly the most important and influential decision that the video game industry has ever faced."
Senator Yee's office recommends you mail him Kinect, not 'dated controllers'
In a cheeky response to the Video Game Voters Network initiative to bombard California senator Leland Yee's office with old and broken controllers, Yee's chief of staff Adam Keigwin told GamePolitics, "I think the Senator would appreciate a Kinect add-on rather than those dated controllers." That wasn't his only zinger. "I can only assume these broken controllers must represent the broken promises of the video game industry to parents," Keigwin quipped in his reply to GP on the matter, before firing off a list of "free speech awards" Sen. Yee has earned for his apparent commitment to the First Amendment. "In fact, there is not a California legislator who has authored more bills to promote speech rights than Senator Yee." Sen. Yee is the author of Caifornia's law AB 1179, signed by Gov. Schwarzenegger in 2005, which bans the sale of certain "violent" games to minors. Two years later, the Ninth District Court of Appeals found AB 1179 to be a violation of the First Amendment and effectively terminated the law. However, the Governator fought back, leading us up to November 2, 2010: the day the U.S. Supreme Court will hear opening arguments in the case -- and two days before any of us can actually send Yee a Kinect unit. Would the senator settle for a Move in the meantime?
Violent video game case gets its date in Supreme Court on Nov. 2
It's been a long road for the California bill backed by Governor Schwarzenegger that seeks to keep violent video games from being sold to minors. But the end is finally in sight: The Entertainment Consumer Association has announced that the case, known as Schwarzenegger vs. EMA (Entertainment Merchants Association), will go before US Supreme Court on November 2. As an outside party, the ECA will submit an amicus brief in the case and has set up a website for a petition and more information about the pending arguments. So far, lower courts have judged the proposed law, which would set up legal rules and penalties against selling violent video games to minors, to be unconstitutional. Of course, this time around, we're talking about the United States Supreme Court, so any decision in favor of the bill would overturn previous rulings in lesser courts. Take that, Ninth Circuit Court of Appeals! Oral arguments in the case begin November 2, and the judges should have a decision soon after that. This will be the first time the Supreme Court looks at video games and the First Amendment, so a ruling either way should be pretty historic.
California AG and developers sound off over bill facing Supreme Court
In a statement released by the International Game Developer's Association recently, the group called California's controversial game bill "oppressive censorship, singling out one form of expression based only on popular myth and biased research." The response came just days after the US Supreme Court decided to allow California governor Arnold Schwarzenegger's appeal to review the bill on a federal scale, though it's been ruled unconstitutional multiple times in his state (not to mention the similar bills in other states that have also been shot down repeatedly). We reached out to the California Attorney General's office to find out why it's pursuing a bill that's been plagued by overrulings, and were told, "All of those courts held that it is up to the US Supreme Court to decide whether extremely violent material can be treated the same as sexually explicit material under the First Amendment when it comes to minors. This means that we had to ask the Supreme Court to extend the law, something the lower courts were not willing to do." We further pressed for why it's targeting video games over films, television, and other entertainment mediums. A representative responded, "There is a growing body of social science that has identified violent video games as being especially harmful to children given the interactive nature of video games, and the FTC conducted investigations that showed it was easier for minors to buy Mature-rated video games than it was to get into R-rated movies." However, the IGDA's statement contends "Violence is conveyed in explicit ways on television, in print media, via the Internet, and in film. All of these platforms constitute speech protected by the First Amendment of the United States Constitution." The piece also states the association's position that it remains staunchly against "censorship of expressive media in all forms" but points out that it's especially against politicians using that censorship "for political gain." The appeal could see its first hearing as early as this October, when the Supreme Court begins its next term. [Via GamePolitics]
Why you don't have freedom of speech in WoW
digg_url = 'http://digg.com/playable_web_games/Do_You_Have_Freedom_of_Speech_in_WoW'; Freedom of speech is one of the most often quoted rights by gamers and people online, yet it is sadly one of the most misunderstood. This right comes about regularly when people are discussing forum bans, moderation, and people like Ghostcrawler telling folks they need to behave. People think that just because they live in a democracy or free society that they have an innate right to do and say whatever they want wherever they want. Nothing could be further from the truth. In a private forum, such as the official World of Warcraft forums, or on a site like WoW.com, you don't have any inherent right to do anything. The people running the site or designing the game sets the rules, and that's that. If Blizzard says all communication must end with "Ni!" or you're banned from their forums, then that's the rule you must follow. It's their property and their choice to do that. If we say every comment must make fun of gnomes or the commenter will be banned, then that's the rule you must follow. It's our website. Freedom of speech has absolutely no bearing within a private organization. When you accept WoW's Terms of Service or use a website like WoW.com, you agree to abide by the organization's rules. If you don't follow those rules, or if someone in the organization just wakes up on the wrong side of the bed that day, you can be prohibited from returning to the forums or playing the game.
Linden Lab explanation alienates educators
When news broke about Linden Lab sending a takedown notice to the core Second Life education community Web-site, our colleagues over at the Metaverse Journal put a number of questions about the matter to Linden Lab. The Linden Lab response to those questions yesterday seems to have generated a reaction among educators akin to pouring gasoline on a blaze, coupled with a vigorous fish-slapping. While there's a undeniably a spectrum of reaction to the Lab's response, most of what we've seen seems to cluster around the livid end.
LGJ: And still, they want to take away our games
Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games: As of late, it seems I've become sort of a policy spokesman for issues concerning the government intervening in the game industry, especially in the wake of my debate with Jack Thompson. However, the discussion over whether violent content can be policed under the First Amendment is getting tired, and the courts have universally declared "no" at this point. Rather than go down that road again, I want to discuss two new ways that the government could attack games; one of which came up in the debate itself. The first is probably the more mundane of the two, and it's the seemingly frequent specter of imposing political correctness on games. In fact, this issue came up yet again this week as a discussion related to not just Resident Evil 5, but also Left 4 Dead 2 and Call of Juarez: Bound in Blood. Of course, the claims here were racism and cultural insensitivity. The irony is that now that the games themselves are seemingly more inclusive of characters other than white males and large breasted women, the assumption is automatically that use of more diverse settings and characters must have malicious motives, rather than crediting the industry for finally being more inclusive.
Utah Governor vetoes video game and movie legislation [update]
It's game over in Utah, for now. Utah Governor Jon Huntsman (R) has vetoed the video game and movie retail restriction bill, which would have enforced strict penalties on retailers who sell M-rated games (and R-rated movies) to "buyers subject to an age restriction or recommendation." The legislation (HB 353), authored by Jack Thompson and legislator Mike Morle, recently swept the Utah House of Representatives by a 25 to four margin. According to GamePolitics, Jack Thompson claims the backers of the bill will seek an override of the veto. In a letter explaining his reasons for the veto, Huntsman says HB 353 would likely "be struck down by the courts as an unconstitutional violation of the Dormant Commerce Clause and/or the First Amendment." Huntsman estimates that a possible "unintended consequence" of passing the legislation would be that the industries most affected could choose to forgo the use of "age appropriate labels on goods and services," because of their voluntary nature -- hurting families in the long run. Huntsman full letter can be read after the break. Update: Michael D. Gallagher, president and CEO of the ESA has responded to the news in a comment, found after the break.
Law of the Game on Joystiq: No Freedom of Trash Talk
Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games: In a recent Sessler's Soapbox, Adam took the opportunity to comment on some of the trash talking on Xbox Live. During the course of that diatribe, he mentioned that he thought the First Amendment argument was a "crock of s***" with respect to trash talking. Well, as the resident lawyer here on Joystiq, I'd like to take this opportunity to explain the First Amendment argument is just flat out wrong. In fact, it's one of my greatest pet peeves that the First Amendment gets thrown about as an excuse for most everything that is said in the realms of gamer culture, from trash talking in online matches, to posts on forums, to comments on gaming blogs. In case you're one of the thirty-four people worldwide who has never experienced the phenomenon in question, this is essentially what's being talked about: Typically, someone will do something offensive online, be that posting something in a forum or saying something on Xbox Live. Then, someone in power will either reprimand that user, often through censoring, or banning for the behavior. This is typically either followed by that user or some other user decrying this exercise of authority as a violation of their 'rights.' The responses do vary, but as a moderator of one of the biggest forums on the internet, I've seen everything from 'OMG U R VIOL8ING MY FURST AMNDMT RYTES!!!11!' to some very lengthy and polished answers. The only commonality between these varying levels of responses is that they are all wrong.
ESA apologizes to Kotaku and BBPS
The Electronic Software Association (ESA), the video game industry lobbying group that runs the ESRB and E3, has apologized for a cease-and-desist order against blogs Bits, Bytes, Pixels & Sprites and Kotaku for merely posting the image from a T-shirt being sold on another site (image at right). Looks like somebody at the ESA councils office was bucking for more billable hours and skipped the day in law school about that silly First Amendment in the United States Constitution. Neither the one-man-band running BBPS or the Gawker network's Kotaku were paid for marketing the T-shirt, they merely thought it was a funny piece of paraphernalia and posted where gamers could buy the shirt. Of course the story doesn't end here. Now the question is: How did this happen? There are plenty of worthy questions to be asked about the root of this blatant disregard of the First Amendment, most of them involving a lawyer or two being completely asleep at the wheel. It could very well be that the lawyers truly had no idea what function BBPS and Kotaku serve in the industry. We gamers have a term for people like that: n00b!
U.S. government to fund studies on video game's effects
On Friday, The Children and Media Research and Advancement Act (CAMRA) was passed by the U.S. Senate. The bi-partisan act introduced, in part, by Hillary Clinton (D-NY) and First Amendment hater Joseph Lieberman (D, sometimes R, but currently I -CT), is designed to research the effects of media on children.The research will be headed by the Centers for Disease Control and Prevention and, if the study finds that video games do in-fact harm the children, the government will be free to impose its will on the industry.One of the major roadblocks to imposing legislation on the video games industry is that every superior court judge that's dealt with the issue has stated that games are protected under the First Amendment and, furthermore, that there is no scientific proof video games are harmful. By proving the latter, these pols hope to overcome the former.(Queue up Night on Bald Mountain from Disney's Fantasia)[Via Next-Gen.biz]
Power to bloggers
This ain't strictly gaming related, but there's no doubt that the decision last week by a California appeals court to grant bloggers the same First Amendment rights that are afforded to traditional journalists can be a good thing for gamers. In a nutshell, the ruling means that we can't be forced by some wicked company to divulge the source of leaked information that we post on the blog. That means that information Joystiq sources send to us (either directly or via our anonymous tips form) and that we subsequently publish is generally protected under the First Amendment. This matters, because it improves the quantity and quality of information through us to you. Of course, company insiders who are considering divulging information to an online or offline writer of any sort still need to consider whether they can trust the writer to whom they intend to dish. The basic rules of relationships still apply, but this ruling should at the very least remove worry that those who publish online are somehow less protected than those who publish on dead trees.
Leland Yee @ GDC: a missed opportunity
We attended the GDC panel entitled "Murder, Sex and Censorship: Debating the Morals of Creative Freedom." The panel was notable for the presence of Leland Yee (pictured above), Democratic candidate for California State Senate, and notable anti-game crusader who passed a law that makes it a crime to sell to minors any game in which a player kills, maims, dismembers or sexually assaults an image of a human being. Yee's fellow panelists included Brenda Brathwaite, Jason Della Rocca, and James Paul Gee. For the most part, though, the audience had assembled to hear Yee defend his position on games. I'll cut through the niceties and get to the meat of it: this panel was a missed opportunity. Jason Della Rocca, who should have been able to ask Yee some good questions, behaved petulantly and unprofessionally (at one point, he loudly sighed into his microphone while Yee was making a particularly nutty point). I expected more of the Executive Director of the International Game Developers Association (IGDA). Get him some media and debate training, stat!
What's a true gamer?
Being a true gamer isn't: a huge gamerscore; a closet full of retro game-themed t-shirts; a huge library of games; owning every console ever released; 10,000 posts to your name on the IGN message boards; your own games blog; raiding 40 hours a week in World of Warcraft. It is moving from mere consumption to hobby advocacy. It's telling your friends about games; being a games evangelist; being politically active and voting against politicians who would interfere with developers' constitutional rights to produce content for gamers of all ages. Certain ambitious politicians are determined to make games an election 2008 issue. While most gamers sit merrily twiddling their joysticks in blissful ignorance, their hobby is under attack. Games are an attractive target because gamers generally can't watch TV news and game at the same time. This gives politicians free reign to vilify video games on national television in a bid to appeal to conservative voters.
