video games

Supreme Court: California’s Ban on Violent Video Game Sales to Minors Violates Free Speech

by Hans Bader on June 27, 2011

in Legal, Nanny State, Personal Liberty, Regulation, Tech & Telecom

California’s ban on the sale or rental of violent video games to minors has been struck down by the Supreme Court as a violation of the First Amendment in a 7-to-2 vote. The only dissenters were Justices Breyer and Thomas. The opinion, authored by Justice Scalia, is here. CEI joined in an amicus brief in support of the challengers, and CEI’s Ryan Radia wrote an op-ed about the case you can find here. As Radia noted, “a comprehensive survey of the major scientific literature . . . found no established link between exposure to media violence and aggressive feelings in children . . . juvenile violent crime fell 36 percent . . . even as the popularity of video games skyrocketed.”

Cato Institute’s Ilya Shapiro, who co-authored an influential amicus brief in the case, had the following to say about the decision in Brown v. Entertainment Merchants Association:

The Supreme Court scored an epic win for the First Amendment in striking down California’s prohibition on selling violent video games to minors.  The law was both overly broad—sweeping in a wide variety of games based on no objective standard and no age-based gradations—and underinclusive—with no restrictions on other types of media.  With a few strictly drawn exceptions for historically unprotected speech—obscenity, incitement, fighting words—government lacks the power to restrict expression simply because of its content.  And a legislature cannot create new types of unprotected speech simply by weighing its purported social costs against its alleged value.

“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat,” Justice Scalia points out in his majority opinion.  “But these cultural and intellectual differences are not constitutional ones.”

Moreover, the Court, citing Cato’s amicus brief, described how each generation’s new media produces consternation from adults who want to avoid the “seduction of the innocent” (to borrow a phrase from the attack on comic books in the 1950s).  In the 19th century, dime novels and “penny dreadfuls” were blamed for social ills and juvenile delinquency.  Later, Congress held hearings on the cartoon menace, which prompted the comic book industry to voluntarily adopt a ratings system. Backlash against certain kinds of movies and music caused those respective industries also to adopt voluntary ratings systems. And the video game industry too adopted an effective and responsive ratings system after congressional hearings in the early ‘90s. Not only is all this hand-wringing overwrought, but self-regulation and parental oversight have worked—evidence from the Federal Trade Commission shows that the voluntary ratings system works more effectively with video games than with any other medium—and they avoid First Amendment thickets.  Adding a level of governmental control, even if were constitutional, would be counterproductive.

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Homeland Security Violating Due Process and Free Speech In Internet Power Grab?

by Hans Bader on December 2, 2010 · 1 comment

in Legal, Nanny State, Personal Liberty, Regulation, Tech & Telecom

Law professor David Post notes that the Department of Homeland Security is seizing entire domain names, not to protect national security, but to enforce run-of-the-mill copyrights.  He calls this an unconstitutional due process violation, noting that “80 websites . . . have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral [judge], that anything unlawful is going on at these sites.”

He also notes that Congress has not yet passed a bill that would have granted the federal government the specific authority to seize domain names.  (Senator Wyden of Oregon has put a hold on a bill known as COICA, the Combating Online Infringements and Counterfeits Act, that would allow U.S. courts to “seize” domain names belonging to U.S. or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities.)

Earlier, CEI’s Ryan Radia and 40 law professors criticized COICA, arguing that it contained “egregious constitutional infirmities,” and would lead to restrictions on speech that are unconstitutionally overbroad and violate First Amendment rules against prior restraints.  Professor Post also argues that the domain-name seizures would be “prior restraints on speech” that are “blatantly unconstitutional.”

CEI also took aim at another restriction on speech. Earlier, Ryan Radia and I criticized California’s overly broad law restricting video games for minors as a First Amendment violation, which is before the Supreme Court in the case of Schwarzenegger v. Entertainment Merchants Association.  A bunch of state attorney generals like Connecticut’s Richard Blumenthal (rated the worst attorney general in America by CEI) have filed a brief urging the Supreme Court to uphold the law.  (The idea that minors have First Amendment rights is not new, but rather has been recognized for generations, as I explained in my 2007 law review article — the Supreme Court first ruled that the First Amendment applied to the states in the 1925 Gitlow decision, and soon thereafter applied the First Amendment to minors in its 1943 Barnette decision.)

CEI Podcast — November 15, 2010: Free Speech and Video Games

by Ryan Young on November 15, 2010

in Culture, Legal, Nanny State, Personal Liberty, Podcast, Regulation, Tech & Telecom

Associate Director of Technology Studies Ryan Radia gives his take on a Supreme Court case concerning California’s ban of violent video game sales to minors. Keeping such things away from children is traditionally a job for parents. Have a listen here.

The case has implications that reach far beyond video games. Because censorship is such a subjective thing, allowing it could have a chilling effect on forms of expression from art to music to film. The First Amendment specifically prohibits the government from sanitizing culture. That is up to the people themselves.

Photo credit: bhschenker’s flickr photostream.

Video Games are More than Just Good for Kids

by Wayne Crews on November 9, 2010

in Culture, Nanny State, Personal Liberty, Regulation, Tech & Telecom

They will be a primary way that we learn, teach, produce and advance in the future. Jane McGonigal of Institute for the Future has the ball right now: “We’re going to see games tackling women’s rights. We’re going to see games around climate change. We’re going to see games around medical innovation, that doctors are going to play.”

These few examples are only a taste. We will see much, much more from the electronic gaming industry. The importance of video games is one reason why keeping government out of regulating them is a significant policy issue right now.

Utah: Rated R for Ridiculous

by Nick Brown on March 10, 2009 · 1 comment

in Regulation, Tech & Telecom

Utah is on the verge of using it’s ‘Truth in Advertising’ bill to pass regulated enforcement of video game ratings.  The bill which was in some part drafted by Jack Thompson, the disbarred anti-violent games attorney from Florida, would fine retailers that sold games to underage customers up to $2,000 per incident.

The catch?  This only applies if they advertise that they conduct age verification, essentially encouraging retailers to remove all advertising that they check ID’s or age in some manner.  Retailers would be better off in this case not advertising in any way that they train employees to verify age before selling age restricted games.  This way if a slip up occurs—as it eventually will—the retailer wouldn’t be held accountable.

The legislation takes a giant step back considering that Patricia Vance, President of the not-for-profit ESRB ranking group, stated in an open letter to the Utah Congress that”

…the most recent such study reported in May 2008 found that national retailers refused to sell M-rated games to customers under 17 a remarkable 80% of the time, far surpassing the comparable rates of compliance for movies, DVDs, or music CDs rated for a mature audience…according to a recent audit, Utah video game retailers enforce their store policies regarding the sale of M-rated games an impressive 94% of the time — without any laws or requirements that they do so.  That level of compliance took many years to achieve, and speaks to the strong commitment of video game retailers to do the right thing.

Apparently a 94% success rate isn’t good enough for Utah who will ignore one of the best working models of self-regulation that any entertainment industry has ever seen or successfully implemented, and will instead take the opportunity to enforce government control in a way that will not prove successful and will cause greater problems down the line.

I whole heartedly agree with Matt Peckham of PCWorld when he says that,

Truth in advertising is important. No one wants to buy a “100% cotton” shirt that turns out to be 50% polyester or an LCD TV with a “full parts and labor three year warranty” that’s only honored for one. Retailers have basic authenticity obligations and consumers should have the right to take action and/or pursue remuneration when a retailer engages in deceitful advertising.

But voluntary self-regulation that hinges on an aesthetically amorphous value system resides in a legal gray area. No one’s going to disagree that selling a 50% polyester shirt as “100% cotton” is ethically wrong, deserving of legal consequences. But games ratings aren’t based on scientific analyses of the fiber content of a piece of fabric, and there’s plenty of disagreement over whether it’s the responsibility of stores or parents to enforce them. For some, game and movie ratings are simply advisory, and it’s up to parents to monitor what kids are up to, not some for-profit business, and most certainly not a bunch of at best tenuously culturally clued-in government bureaucrats.

Peckham’s insinuations that this is just the beginning are dead on.  And those like Jack Thompson that want to see violent or mature content banned from the face of the earth know just that, and are counting on it.  You see, when this model fails, politicians won’t return to the stage and admit they were wrong and redact the policy.  They will instead seek to legislate the issue even further and with a firmer grip.  This is simply the first flake in a snowball rolling down hill.

A Gamer Win For Parenting

by Nick Brown on February 23, 2009 · 2 comments

in Culture, Nanny State, Regulation, Tech & Telecom

If you’ve followed my posts here at OpenMarket.org or at my personal site, you’re well aware of the fact that I have a soft place in my heart for jumping all over any attempts by government to regulate video game ratings or content.  I always emphasize that we already have a great system in place with the ESRB and that it should be up to parents to decide what is appropriate for their children. Parents should take advantage of parental controls on their kids’ gaming systems to lock out games that have content unsuitable for children.

That being said, I feel obliged to praise the story of an individual who has avoided simply taking a superficial glance at what his child is playing, and has instead taken an honest interest and engaged their child to broaden his horizons on a subject.

Such a story is that of Hugh Spencer, a friend of Boing-Boing writer Cory Doctorow.  Spencer describes a confrontation with his son’s love affair with Call of Duty.  Some of us in this very office share this love affair, so we know just where he is coming from.  Hugh was a little concerned with the first person shooter-aspect of Call of Duty, and he was a little concerned about the violence.  The game was given a T (or Teen) rating, and his son was just thirteen years old.  On the other hand, Hugh, as a museum exhibition designer, was familiar with the content and felt it was historically accurate.  And even though the shooting and explosions concerned, him he knew that was the reality of World War II.

So Hugh set down with his son.  He took the opportunity to talk to him about what was going on in the game and made an agreement with his son:

I asked Evan to google the Geneva Convention. Then he had to read it and then we had to discuss it. This we did. So the deal is that Evan has to fight according to the rules of the Geneva Convention. If his team-mates violate the Convention then play stops and Call of Duty goes away for a while.

What a fantastic example of using a video game for a teaching opportunity.  And this is likely just one of many instances of good parenting that we don’t hear enough of.  This is also evidence that the ESRB works for parents, who should take note of the ratings system and watch what their kids play. Who knows? This just might open up more learning opportunities outside of video games based on the content of the game.

Bravo, Hugh!