Law of the Game on Joystiq: Video game laws (abort/retry/fail)

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

This week has seen a striking revival of 'video game legislation' stories, from Massachusetts to Minnesota to England. Given the sudden resurgence of the issue, it seemed like an appropriate time to dissect the legal issue of 'video game regulation' on the Law of the Game operating table. The concept of government regulation is as much a legal construct as it is a political one, and to date, it has been the legal system's role to strike down these regulations as a violation of free speech (although, it has recently been brought out that, at a minimum, Justice Scalia may not agree). The real issue at hand is where, if anywhere, a 'video game law' could fall in our legal system.

In broad terms, the US government gets to regulate many things, be that at the state or federal level. Just take a moment to think of all of the ways the government restricts your personal and professional life. If you want to drive a car without stealing it, you have to be at least 16 years old. If you want to buy certain 'products' from law-abiding establishments (the guy in the back alley doesn't count), the age restrictions are set at 18 or 21. If you want to sell a franchise concept, you have to make certain disclosures as required by the Federal Trade Commission and various state regulators. If you want to get philosophical, this is all part of the 'social contract,' and these restrictions are generally in place for the benefit of the public at large. But what about the games?

When it comes to games, it is more about content restriction than restriction on an actual, quantifiable 'evil.' Taking parts of the previous list, alcohol sales are restricted because of the actual dangers of drinking (expect on your birthday!), tobacco sales are restricted because of the actual risk of cancer, and franchise sales are restricted because of an actual risk of major fraud. Video games have been, at best, nebulously linked to behavioral issues in studies that have been disputed by similar studies with contrary findings. Until there is a conclusive medical publication that shows video games trigger, say, homicidal psychosis, the cry for regulation is really a call for a content restriction, just as practically every new media has faced (i.e., rock and roll, comic books, and even movies and television).

In the broadest sense, the First Amendment guarantees free speech, that is, it bars content restrictions on speech. To quote Justice Thurgood Marshall, "If the First Amendment means anything, it means that a State has no business telling a man sitting in his own house what books he may read or what films he may watch." Drilling down into the specifics of the case law, however, the government does have some ability to limit the sale of 'obscene' material. However, the definition of 'obscene' is pretty limited in the US based on the 'Miller test.'

The Miller Test has 3 elements for obscenity: whether an average person, using the community standards, would find the work as a whole appeals to the prurient (generally, sexual) interest; whether the work depicts in a graphic way sexual activities; and whether the work lacks 'SLAPS' (serious literary, artistic, political, or scientific) value. Given that the obscenity test is almost purely based on sexual content, it would apply to few games. Moreover, as games have become a more accepted medium of expression, the artistic value of those expressions has increased. Finally, any game which is judged to be a political statement would have even greater protection under 'free speech' law, as political speech is generally only subject to time, place and manner restrictions. While certain people have argued that games are 'obscene,' evidence has yet to be presented to prove this point. The overwhelming majority of games does not have content that exceeds what is allowed on network television, much less R-rated movies.

Speaking of movies and television, they are an example of two different realms of content regulation. In case anyone is not familiar, the following links contain more information about the MPAA's movie rating system and the TV rating system. At a broad level, it is important to know that the movie system is not enforced by the government, while the TV system is. Why is there a difference? The TV rating system is imposed by the FCC, which is a government regulatory agency, based on the fact that any TV station has to be licensed to broadcast over the public airwaves. Because of the FCC's control of the broadcast spectrum, they have leverage with which to enforce content restrictions. The MPAA, on the other hand, is a private, industry organization and no such license is required for a movie theater to show any given movie. To put things into perspective, the ESRB is a private organization and games are shown in private residences. Games are, in that respect, no different than movies.

This, of course, begs the question: Why games? There are a lot of theories about this particular issue, but I see it as a combination of factors: fear of new things, an easy target, unscrupulous politicians, and a largely uneducated public. Legislators love to find something like video games; something they can use to exploit the public's misconceptions and fears in order to make it appear as if they've remedied a great evil without actually having to tackle a hard-hitting or divisive issue. Almost no one opposes legislation 'to protect the children,' even if no children are actually being protected.

If the idea of 'video game regulation' were left entirely in my hands (that's right, vote Methenitis!), I would simply leave the issue wholly untouched by the government. While I may not go as far as a complete anti-Jack and say that anyone should be able to play anything at any time, I do think that the government should be left out of a decision that has been effectively left to parents for years. Media consumption, be it books or movies or television or video games, can only be controlled to the degree espoused by some of the game industry's most vocal opponents in a 'nanny-state,' where personal responsibility has taken a back seat to 'big brother.'

Until a definitive ruling is handed down from the Supreme Court, the public becomes more educated on the facts at hand, or the gamer generation becomes the majority player in politics, we will continue to see opportunist legislators attempt to use video games as their grand platform to 'save the children.' The most unfortunate part is that taxpayer dollars -- your money -- and legislative efforts are being wasted on this trivial non-issue rather than on many of the more important issues that face both the US and the world at large.

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. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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