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The Political Game: The Public Nuisance


Each week Dennis McCauley contributes The Political Game, a column on the collision of politics and video games:

Once again, Miami attorney Jack Thompson is attempting to have a video game -- Halo 3 this time -- declared a public nuisance. He failed badly in such an attempt in 2006 with Rockstar's Bully.

Under Florida law the term "public nuisance" is generally applied to the likes of brothels and illegal gambling operations, things which, as the law states:

"...tend to annoy the community, injure the health of the citizens in general, or corrupt the public morals..."

It's difficult to imagine anyone but Thompson trying to shoehorn a video game into that legal definition. But this isn't really about public nuisances, or even Halo 3.

It's video game legislation -- through the backdoor.

As Joystiq and GamePolitics readers know, laws designed to restrict video game sales to minors have failed on constitutional grounds in nine states, most recently California and Oklahoma. Thompson knows this too. The controversial attorney has been down the legislative road before, and not successfully.

A 2006 video game law he authored for Louisiana turned into an embarrassing fiasco for the state government and was later declared unconstitutional by a federal court judge. Earlier this year the Utah legislature flirted with yet another Thompson-authored bill but ultimately backed off over First Amendment concerns as well as Thompson's unwarranted trashing of the state's respected attorney general.

But how does Thompson's public nuisance gambit equate to a backdoor attempt to legislate video game sales? Look at what he is seeking from Florida's 11th Circuit Court:

"...a permanent injunction, prohibiting both [Microsoft & Best Buy] from selling this Mature-rated video game [Halo 3], directly or indirectly, to anyone under 17 years of age..."

If approved by the court, the highlighted section would essentially give the ESRB's voluntary compliance rating the force of law. And that has been the effective intent of most of the video game legislation passed (and ultimately overturned) in the United States. Should Thompson's gambit succeed, the state of Florida would have, de facto, a video game content law.

What's more, it would be a law that never underwent legislative scrutiny and was never signed by the Governor.

The good news is that Thompson's strategy is very much a long shot. The merits of the case are completely lacking and the legal travesty that was last October's Bully trial has not likely been forgotten in the corridors of Florida's 11th Circuit.

The bad news is that unless the video game industry pushes the issue, we'll be going through this again the next time a game launches that Thompson decides he would like to censor.

Dennis McCauley is the Political Editor for the Entertainment Consumers Association (, tracks the political side of video games at and writes about games for the Philadelphia Inquirer. Opinions expressed in The Political Game are his own. Reach him at

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