Judges Say The Funniest Things

Last night saw the first hearings in the case known as Schwarzenegger vs EMA, which concerns the Governator’s attempt to bring about a US-wide ban on the sale of violent video games to minors. Which sounds eminently reasonable, save for the fact that the US already has the ESRB ratings system, which anyone with even an eighth of a brain uses and enforces effectively. This law would remove all parental responsibility concerning what games their kids can play, and instead make it a criminal offence for retailers to sell adult-rated games to under 18s – as well as effectively putting the judgment as to which games contain “deviant violence” in the capricious hands of state authorities.

While the case for the defence has been that this contravenes First Amendment rights regarding freedom of speech, the real problem is that notoriously conservative mega-chains like Walmart would likely refuse to stock adult-rated games at all (considering them pretty much up there with hardcore porn), which means sales will plummet and publishers will focus efforts on family-friendly stuff instead. Much as it’s enormously important to ensure kids don’t have easy access to games with violent or saucy content, we really don’t want our choice of games to diminish sharply as a result. Fortunately, California’s arguments appear to be vague, contradictory and poorly thought-out, which a number of US Supreme Court judges quickly caught onto…

Clearly not taking attorney general Zackery Morazzini’s confused statements entirely seriously, several of the Justices elected to do a little improvised comedy instead. The full court record is embedded at the bottom, but here’s a few highlights:

Justice Scalia: What’s a deviant violent video games? As opposed to what? A normal violent video game?
Morazzini: Yes, your honor. Deviant would be departing from established norms.
Justice Scalia: There are established norms of violence? … Some of the Grimm’s fairy tales are quite grim, to tell you the truth.
Morazzini: Agreed, your honor. But the level of violence ….
Justice Scalia: Are they okay? Are you going to ban them too?
Morazzini: Not at all, your honor.

Justice Ginsburg: What’s the difference? I mean, if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form?
Morazzini: No, your honor. That’s why I believe California incorporated the three prongs of the Miller standard (for identifying porn in legal cases). So it’s not just deviant violence. It’s not just patently offensive violence. It’s violence that meets all three of the terms set forth in … The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent — of violent video games where the minor or the young adult is the aggressor, is the — is the individual acting out this — this obscene level of violence.

Justice Kagan: Well, do you actually have studies that show that video games are more harmful to minors than movies are?
Morazzini: Well, in the record, your honor, I believe it’s the Gentile and Gentile study regarding violent video games as exemplary teachers.
Justice Kagan: Suppose a new study suggested that movies were just as violent. Then, presumably, California could regulate movies just as it could regulate video games?

Justice Sotomayor: One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, outlaw Bugs Bunny?
Morazzini: No.

Justice Scalia: That same argument could have been made when movies first came out. They could have said, oh, we’ve had violence in Grimm’s fairy tales, but we’ve never had it live on the screen. I mean, every time there’s a new technology, you can make that argument.

Justice Sotomayor: Could you get rid of rap music? Have you heard some of the lyrics of some of the rap music, some of the original violent songs that have been sung about killing people and other violence directed to them?

Justice Ginsburg: Part of this statute requires labeling these video games in big numbers “18.” So it’s 18 and California doesn’t make any distinctions between 17-year-olds and 4-year-olds.

Justice Scalia: I’m concerned about the producer of the games who has to know what he has to do in order to comply with the law. And you’re telling me a jury can — of course, a jury can make up its mind, I’m sure. But a law that has criminal penalties has to be clear. And how is the manufacturer to know whether a particular violent game is covered or not? Does he convene his own jury and try it before — you know I really wouldn’t know what to do as a manufacturer.
Morazzini: I am convinced that the video game industry will know what to do. They rate their video games every day on the basis of violence. They rate them for the intensity of the violence.

Justice Kennedy: It seems to me all or at least the great majority of the questions today are designed to probe whether or not the statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there’s an obvious parallel there. The problem is that for generations there has been a societal consensus about sexual material.

Justice Scalia: I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment. …What’s next after violence? Drinking? Movies that show drinking? Smoking?

Justice Breyer: This court has held in one instance that courts can regulate fighting words. We regulate fighting words? Don’t we?
Morazzini: Absolutely.
Justice Breyer: Because they provoke violence.

Justice Scalia: You should consider creating such a one (advisory office). You might call it the California Office of Censorship. It would judge each of these video games one by one. That would be very nice.
Morazzini: Your honor, we ask juries to judge sexual material and its appropriateness for minors as well. … California is not acting as a censor. It is telling manufacturers and distributors to look at your material and to judge for yourself.

Justice Kagan: Do you think Mortal Kombat is prohibited by this statute?
Morazzini: I believe it is a candidate. But I haven’t played the game and been exposed to it sufficiently to judge for myself.
Justice Kagan: I am sure half of the clerks who work for us spent considerable amounts of time in their adolescence playing [it].
Justice Scalia: I don’t know what she’s talking about.

Justice Kagan: Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?
Morazzini: No, it wouldn’t, because the act is only directed towards the range of options that are able to be inflicted on a human being.
Justice Sotomayer: So if the video producer says this is not a human being, it’s an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?
Morazzini: Under the act, yes, because California’s concern, I think this is one of the reasons that sex and violence are so similar, these are base physical acts we are talking about, Justice Sotomayor. So limiting, narrowing our law here in California, there in California to violence = violent depictions against human beings.
Justice Sotomayer: So what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.

ZING. Many times over.

Unfortunately, Chief Justice Roberts was hung up on Postal 2, a notoriously violent/dumb game from 2003, which he seemed to believe was endemic in games in general:

Chief Justice Roberts: We do not have a tradition in this country of telling children they should watch people actively hitting school girls over the head with a shovel so they’ll beg for mercy, being merciless and decapitating them, shooting people in the leg so they fall down, pour gasoline over them, set them on fire and urinate on them. We protect children from that.

So while the hearing looks to be pretty positive for the games industry (and games players), there’s still a risk that poor understanding and lousy research on the matter could cause a problem. We won’t find out for a some time what the decision is – possibly not until June.

Here’s the full document, if you fancy getting the complete picture:


  1. CMaster says:

    Isn’t it already a criminal offence to sell 18 rated games to under 18s (or 15 rated games to under 15s, etc) in the UK? Although I’m not sure how it applies now that the film board has stopped handing out ratings for any games.

    • no says:

      This is in America; not the UK. Free speech supersedes doing your parenting for you. Movie and Game industries self impose a ratings system on themselves and retailers voluntarily abide by those ratings when selling games to people (so despite the claims of frantic morons, children are NOT being sold M rated games at the store). If you violate that, you’ll probably find yourself fired. You’re certainly not going to find yourself doing prison time — because it’s none of the government’s fucking business.

    • CMaster says:

      I realise this is in the US – I’m just trying to see why this is meant to be a big deal – I suspect there is something I have missed and am wondering if someone can explain it to me.

    • wm says:

      @ CMaster: Mr. Meer did: “…the real problem is that notoriously conservative mega-chains like Walmart would likely refuse to stock adult-rated games at all, which means sales will plummet and publishers will focus efforts on family-friendly stuff instead”

    • Giant, fussy whingebag says:

      I thought it was a civil, not criminal, offence. So if a store sells an 18 game to a minor, a parent can press charges, leading to the store paying a fine or something…

      Anyway, good for those judges (except for the Chief Justice). They may not have a contemporary view of games, but at least they are, for the most part, applying common sense. It’s refreshing to see someone official refuting the scaremongers.

    • Arthur Barnhouse says:

      I believe the law would have a fine for selling to minors. The issue in the US is that games as a form of speech would be treated entirely differently than every other form of speech in the US. The only medium that currently has this sort of restriction is pornography. Getting this sort of restriction would basically ghettoize games.

      I’ll call it right now: 6-3, with Roberts, Alito, and Thomas as the minority. I’m not sure how this even got on the docket. Maybe Scalia was doing them a favor.

    • Jad says:

      Well, the UK and the US have different laws. If the Supreme Court decides against California in this case, then the UK’s laws making it a criminal offense to sell 18-rated games to under 18’s would be prohibited from being applied in the United States.

      We’ve never had any kind of laws that stipulate criminal charges for selling products to minors — other than specific types of porn, referenced in the above case — and so starting now, for videogames, would separate games from any other type of media. This law is effectively saying “games are uniquely evil”, and books, music, etc. are not. So that is a big deal.

      Also, while you might be comfortable with your UK laws, from the point of view of this American, they wander closer to governmental censorship than I’d like. As I’ve said, the US has never had any laws like that, and I don’t think we need them. The movie, game, etc. industry do a fine job voluntarily policing themselves.

    • Clovis says:

      @CMaster: This decision is somewhat important no matter where you live because of the disproportionate affect of US game sales. I’d say that the games are already held back because of major game retailers in the US basically banning the sale of AO games. One obvious example is nudity\sex, which is such a big deal in the US, but not in other parts of the world. I can watch The Sopranos\Boardwalk Empire in the US, but if I played them as a game in the US, they would be devoid of the big doses of sex.

      If the Supreme Court suddenly goes bonkers and allows this law you could see the same thing happen to violence.

      Or, reading over that dialogue, we’d just get green blood and robot parts in the US and everyone else would be fine.

    • CFKane says:

      @Arthur Barnhouse: I’m not sure any of the Justices (even Roberts) are ready to add violence as a new category of obscenity. That being said, I think there are 4 votes for regulating it anyway under a strict scrutiny standard: your 3 plus Breyer, who seemed displeased with the games industry’s arguments.

    • Arthur Barnhouse says:


      I’d just guess that the law is too vague for Breyer to voice support for it under Strict Scrutiny. There is no clear standards or really enforcement method. But the opinion might leave the possibility open for another law more narrowly defined.

    • Bascule42 says:

      “So can the legislature now, because it has that study, outlaw Bugs Bunny”? – No, ’cause he’s just a wascally wabbit.

      About Wal-Mart not selling violent games, (or shitting itself in case anyone says ther are): One of our biggest super-dupa-mega-stores in the UK, ASDA, is a Wal-mart subsidiary, and Ive had one or two violent games from there over the years. Can’t see the problem with stores not stocking violent games. It’s simple, it say “A” on the cover, DON’T SELL IT TO KIDS. It’s not rocket science, it’s not even binary code. I mean, can stores in the US sell, for example, “Saw” to an 8 year old girl?

    • CFKane says:

      @Bascule42 Yes, a store could sell Saw to an 8 year old in the US. Like for M-rated games, movie ratings are created by the industry and self-enforced.

    • Arthur Barnhouse says:

      In theory you can sell whatever speech you want to whoever you want. There is no governmental limitation on movies, books, magazines, etc. There are limits on TV and radio because there is limited spectrum and the government wants those accessible to as many people as possible. The de facto reality, however, is that you can’t buy video games or movies if you’re under a certain age based on voluntary ratings systems. Actually, the US voluntary restrictions for video games are better than for movies.

    • Andreas says:

      It’s a problem because in the US, unlike the UK, it’s generally accepted that the government has no particularly reason to go poking around how you raise your kids.

      Kind of agree, to be honest. If dad decides sonny boy is old enough to play GTA when he’s 15, that’s his own bloody business.

    • Rinox says:

      @ Andreas

      But that’s not how it is. I mean, if you as a parent really feel like your kid should play GTA at 15 you can just go to the store, buy it (if need with him standing right next to you) and hand it over to him on the spot. The only thing the age laws limit is selling these games or movies directly to peope under a certain age, they’re not actually forbidding them from playing them. In reality, no government agency in the world will come into your house and tell you you shouldn’t let your kids watch Saw or play Manhunt. So it should in fact be interpreted as the government giving an ‘ age advice’ rather than telling you how to raise your kids.

    • sneetch says:


      Surely this proposed law is the same would be the same as it is here in Ireland (and the UK I think) where so long as it’s dad actually buying the game the kid can play it: the proposed law seems to state that you can’t sell to a minor, it doesn’t state that the minor can’t play it.

      Anyway, hope it works out well. I don’t think that Walmart will stop selling the games (how much did they make from COD MW/MW2 after all) they will just start asking for ID, the same way they now do when you ask for cigarettes or alcohol.

    • Arthur Barnhouse says:


      Does UK law only limit games, or all media?

      This law would be unique in the US because it would be the only other Media, other than pornography, that would be limited this way. And I feel pretty confident that it would hurt selling games in general stores, based on past events. Try going into a Walmart and buying a comic book.

    • The_Terminator says:

      As someone who’s actually read the proposed law, I think I should probably explain how it works: In practice, it is very similar to the system used in the UK. Stores would not be allowed to sell innapropriate video games to minors, but that is all. If a parent wanted to buy their son a copy of Manhunt, then there would be absolutely nothing stopping them – even if the kid was standing right next to them in the shop. All the law prevents is a kid sneaking off to the shop and buying Manhunt without their parents’ permission – so it puts more power in the hands of the parents, not less. The other thing to remember is that while the current voluntary system does work, not all stores abide by it – there are plenty of independent retailers who do not.

      I am still against this particular law however, since it does single out videogames – it needs to be applied fairly to games, film, and TV, or not applied at all imo. It is also not clear on what the ratings system would be, or how a game would be classified. And it doesn’t say who will be responsible for classifying games – if they’re sensible it would be an independent board, but they could just as easily appoint someone totally unsuitable for the job – or someone working for the government, which would be even worse.

    • sneetch says:

      I believe (I’m not sure because I’m not from the UK) that it’s anything with an BBFC/PEGI rating on the cover, so that would be movies too.

      Now this could cause problems for legitimate purchasers who don’t have ID but I still think it’s do-able. If nothing else I’m sure it’ll delight GameStop if Walmart stopped selling these games.

      “Try going into a Walmart and buying a comic book.”

      I’ll put that on my to-do list next time I’m in the states, shouldn’t have much of a problem with ID though as I’m 37 and weather-beaten enough. ;)

    • DrGonzo says:

      In the UK, both films and games have legally enforced ages. To say this effects ‘free speech’ is just bullshit to be honest. just as saying it takes power away from parents is untrue. It is in fact the opposite of that, it is perfectly legal for a parent to buy an 18 rated film or game for their child and give it to them. What this does is put the choice in the parents hands so they can choose what their children can see.

      On another note, I hate the idea of ‘free speech’. Quite what its meant to mean I’m not sure, but it’s obviously a bad idea.

    • Arthur Barnhouse says:

      @sneetch I meant that you can’t buy comic books at Walmart. Ever since the comic book scare of the 1940’s-1950’s, no one other than specialty shops carry them anymore.

    • Patrick says:


      No, the government is not ‘giving age advice’, they are very specifically, ‘making it illegal’.

      While yesterday’s elections pissed me off a bit, coming here and reading “I hate the idea of free speech”, makes me pretty thankful to live here.

      And I have bought hardcover comic book collections at Walmart. They don’t sell individual issues because not enough people are interested.

    • LevingLasVegas says:

      Here is the real problem: California wants to set up a regulatory agency that decides and places limits on video games. Why is this a big issue? Because this means the same can, eventually, happen to movies and art.

      The MPAA was set up as an independent advisory committee because it was found that leaving the matter to state or federal authorities fell under state-sponsored censorship. To quote from Wikipedia, “MPAA ratings carry no force of local, state, or federal law anywhere in the United States. They only serve as a consumer suggestion by a group of corporate analysts.”

      This proposed new form of classification would add actual, real legal penalties. If a theatre chain wants to let kids into Rated R movies, they can. However, the MPAA would strep in and stop distributing movies to that theatre chain. (the MPAA has an unspoken agreement that MPAA affiliated production companies and distributors will not ship titles to theatres that violate the MPAA guidelines)

      Currently, if someone sells a Mature (17+) titled game to a 14 year old, there is no penalty of law that can be applied. A parent could proceed in a civil suit against the store, but that is it. No formal charges can be filled and there is no law against what the retailer did. What the ESRB should maintain is that they are structured just like the MPAA and that games should be given the same concerns and general guidelines for production and distribution as movies.

      The reason pornography is obscene is because it does not contain artistic merits of free expression. Pornography is obscene because the only purpose of pornography, by definition, is to elicit sexual excitement. One could make the same case for video games, but that would require that a violent video game be made with no other purpose than to illicit violence. As stupid and petty, atrocious even, as Postal 2 is, I sincerely doubt the purpose was to illicit violence. The movie Saving Private Ryan and the arthous-driven Thin Red Line are two great examples of movies with intense and visceral violence. However, to say that those movies lack artistic expression is simply incorrect. Even with Postal 2, the violence is meant as an absurdity, and (one could argue) meant to portray how ludicrous and overblown society, especially pop-culture society, is infatuated with abundantly over-the-top and mindless violence.

      The solution to films like Saving Private Ryan (even though it is now aired, unedited (full of violence and the few profanities), on many public TV networks during Veteran’s Day) is to have the independent relationship the MPAA and NATO (National Association of Theater Owners) have. This allows for the government to keep their hands off from regulating artistic materials (which they should NEVER be allowed to do) and allows for quite stiff penalties to retailers (no major publishers would ship games to that chain) if they do not voluntarily comply with the ESRB.

    • Collic says:

      The thing to be concerned about here is if videogames start to be regulated by a body like the MPAA. Check out this ‘movie is not rated’ for how damaging that unaccountable, anonymous group of unelected officials are to any movie that challenges conservative american views – particularly on sex.

      Adult rated (xxx) games would be a huge blow to the industry. It doesn’t matter if a game has a legal penalty attached to it being sold to a minor, it matters that it would be excluded from the big US retailers. It’s a de facto death sentence for anything that falls foul of this particular law.

      Thankfully, most of the truly interesting stuff is being made in eastern europe, but the effects of something like this would still be quite serious on the industry as a whole.

    • DrGonzo says:

      I guess I’m confused as in the UK we don’t have free speech as you do in the US. Yet we seem to be a far more free country. Our films and games don’t get banned because they are regulated. Our news seems better and less biased in general, though it can be awful at times.

    • bob_d says:

      @ Bascule42:
      You clearly don’t know Walmart very well. They shy away from stocking products that are controversial. So while they will stock R-rated movies (which they will only sell to those over 18, regardless of their legal requirements), when the music industry adopted the “Warning: Explicit Lyrics” label for music, Walmart refused to carry any music with that label, because of the controversy. If there became a legally enforced category of “adult games,” that would be equivalent to pornography and Walmart certainly wouldn’t carry them.

    • Collic says:

      @ Dr Gonzo, we have a few more laws that infringe on free speech in the UK, but most of them are pretty sensible. Such as laws against inciting racial hatred, and to pick up on the fox news example, laws governing what you can say while presenting yourself as the news.

      They wouldn’t fly in the states, but I like to think in this country, as in many others, we recognise that setting hard and fast rules like those laid down by the US constitution is great in theory, but allowing no exceptions is just as damaging as not protecting those rights at all.

      It would also be the reason why people aren’t shot at school or by intruders with the guns they keep in their underwear draws.

    • deejayem says:

      @Jad, re: Also, while you might be comfortable with your UK laws, from the point of view of this American, they wander closer to governmental censorship than I’d like.

      It’s maybe worth pointing out that the BBFC (British Board of Film Classification, who also do games) is not run by the government. It’s self-funded and run by industry-appointed staff, who establish their baseline standards based on public consultation. Its decisions are legally enforced (in that a shop owner can be prosecuted for selling restricted material to those under age), but it is not government run and it does not have any power to dictate what parents can give/show their children.

    • deejayem says:

      @LLV Re: he movie Saving Private Ryan and the arthous-driven Thin Red Line are two great examples of movies with intense and visceral violence. However, to say that those movies lack artistic expression is simply incorrect.

      Sorry, multiple post but also maybe worth pointing out both these movies were passed by the BBFC with a lower age rating than the level of violence would imply specifically because the violence was deemed to have artistic merit.

      The actual regulations on what can/can’t be shown for different age ratings in the UK are surprisingly relaxed.

    • Bascule42 says:

      Thanks for that reply. That is quite something. I’m beginning to see the problem here. What’s the alternative to Wal-Mart? Or are they like the Bobby Kotick of retail? What about stores like EB, would they be likely to follow suit.? Surely gamers would just find an alternative store. And do Wal-Mart, (like it’s UK store ASDA), focus mainly on console titles – just paying lip-service to the PC format? How would this law affect digital distrubution methods? (Does anyone from the UK know, for example, Steams policy on selling a BBFC 18 rated game to an account holder under that age)?

      Also, if Wal-Mart chose not to sell, GTA -like titles, as thees game are immensely popular, wouldn’t they be concerned about loss of revenue, and wouldn’t market demand mean that alternatives wouold spring up all over the place? Seems to me there is too much assumption that this will force developers into making “safe” family games. Can anyone see CoD 9: Fluffy Bunny Hunt? Or GTA: Hello Kitty? No, these titles are way way too lucraitve to be abondonded, despite them not being sold a big chain stores. Surely…or maybe, once again, I am underestimating Wal-Marts domination over the average American Joe.

      I wonder if EA, (for example), would have legal recourse to challenge Wal-Marts choice to restrict sales of “rated” games.

      IF this law is passed, it should really cover ALL forms of entertainment media. After all, if that 8 year old kid can buy Saw…

      …please tell me kids can’t buy cigarettes in the US? Please!

    • Clovis says:

      @Bascule42: Selling tobacco to children is illegal in all states, I’m pretty sure, since it is illegal for them to use it.

      Oh, but here’s some fun info. In my state, Kentucky (cue dueling banjos), you are legally allowed to smoke tobacco at 16, but not allowed to buy it until you are 18!

    • Collic says:

      @ Clovis, you’re from Kentucky and your handle is Clovis? hehe :)

      As for those age laws, the uk is just as barking. You can have sex at 16, but you can’t watch porn until 18. You can get started on cancer at 16, but you have to be 18 before you can get drunk.

    • Jason Moyer says:

      In regards to the points made about Wal-Mart (and other US chain stores), I’ve never seen a store stock physical copies of games rated 18+ in the US. All of the ones I’m familiar with carry games that are rated 17+ (M-rated games) but the 18+ games are rated AO, and no one carries them.

    • Rinox says:

      @ Patrick

      There is a difference between what is ‘technically speaking’ the law and what is actually enforced in reality. Let me repeat that for you: there is no way the government is going to stop you in any way from buying your kids a game, movie or book and letting them read it. So what the hell does it matter?

      It’s like laws making it obligatory for cab drivers to carry a bale of hay in their trunk (because they stem from horse cart times) or prohibiting sodomy (because in reality, no one is going to enforce it).

    • Consumatopia says:

      Maybe in the UK you have magically responsible politicians who would never abuse regulation of speech, but if we dropped the First Amendment here in America, we’d probably have something like in Canada, where they press charges if you say something too critical about Islam. The same GOP that’s about to start holding hearings over climate “lies” would be deciding what would and wouldn’t go in our news broadcasts. And corporations would charge you with libel or slander when you criticized them crossing only the flimsiest of evidence burdens (oh, wait, you already have that over there). No sex and no violence in movies unless it’s America kicking Commie ass.

      But on the other hand, I guess we could shut up Fred Phelps and stop kids from playing violent video games.

    • Arthur Barnhouse says:

      I suppose it’s a matter of personal preference to a certain extent. Freedom of speech has helped on many occasions. Look, for example, a the video nasties ban list in the 80s. A list of banned movies would be almost impossible in the US in the 80s.

    • Clovis says:

      @Collic: Yep. I guess that’s weird since most people from KY aren’t familiar with the name. I used to use the handle “sfc”, but dropped it once gamers started using mics since you can’t pronounce it easily. I was reading various bits of history at the time. To me the name sounded almost girly, but Clovis I was basically a warlord, which is cool.

      Now it has become really common in forums and games to be around people outside of the US who are familiar with it as a normal name, I guess. On US servers I think people think I’m a girl until I speak, and on international servers I think people assume I’m European until I speak.

    • Capon says:


      “Maybe in the UK you have magically responsible politicians who would never abuse regulation of speech, but if we dropped the First Amendment here in America, we’d probably have something like in Canada, where they press charges if you say something too critical about Islam”

      *Citation needed*

      Which I’ll provide: link to en.wikipedia.org

      … And if you read the summery, the case was thrown out by the human rights tribunal, as it was critical if a religion but not inciting hate mongering.

      You are certainly allowed to press charges if someone is inciting hate speech against *any* religion, or any distinct ethnic/racial/lifestyle group. Our courts have made clear distinctions between criticism and hate speech. The book Infidel by Ayaan Hirsi Ali was a bestseller for a long time here, Canada’s own Douglas Coupland has been critical of all religions for some time, and debates about religion draw big crowds in the university debate circuit. Freedom of speech is not in any danger here in Canada, despite regulation that would seem harsh to Americans.

    • DJ Phantoon says:

      The purpose of the supreme court is to set legal precedence. Because their role is not clearly defined in the constitution (which was intentional) for a while they had to basically figure out their own role as it changed and evolved. They took the case because they wanted to lay out the law, basically. Once the supreme court makes a decision, it generally has to go back to them before it can be changed. At this point, they’re the only branch of government we have that not only can get something done, but does. I’ll skip the US politico for now and just say that as it sounds, the law will be overturned, and games will be (basically) endorsed as art by the court.

      (Disappointed by the election results, but it could have been worse)

    • Collic says:


      Just because we don’t have a written constitution doesn’t mean we don’t enjoy the same fundamental rights here in the UK. We have a un-written one. Our laws state what you can’t do, your constitution says what its your right to do. In all practical senses there is no difference except for the hang-ups and pressure groups that many people believe hold the states back politically as much as they protect the rights of their citizens.

      If your government wants to infringe your fundamental rights, they will (if they can manage to justify it). I believe they have (anti-terror legislation is one that springs to mind), there are no doubt numerous other examples of amendments to the constitution that others in the states I’m sure disagree with.

      The outrage and political debate is no different in this country when controversial laws are passed, the only difference is we don’t have a document called a constitution.

    • rob says:


      “Our laws state what you can’t do, your Constitution says what its your right to do. … the only difference is we don’t have a document called a Constitution.”

      That is a massive difference. When you talk of rights, you talk of laws which remove them, not laws which protect them. Your default position is one of submission – your government decides which rights you may have. Our default position is one of domination – our government must ask for which rights it may take.

      If the only difference was a document with a fancy name, we would have stuck with the Articles of Confederation and been done with it. Learn a little about the Constitution before you belittle it, it’s pretty clear you don’t know much about it.

    • Jack says:

      Holy shit, I don’t think I’ve ever seen this many successfull replies in one place!

      I live in australia, where something very much like a more extreme version of this law was passed. It sucks. You don’t want it to happen anywhere. Trust me.

      Related to UK vs. US freedoms: Doesn’t the UK have cameras on every streetcorner? I remember an interview with alan moore where he mentioned coming up with the idea of cameras on every corner for his distopian future in V for Vendetta, and how the government apparently thought that was a great idea.

    • Quirk says:

      My main exposure to the name “Clovis” is via the one and only Clovis Sangrail, the devastatingly witty and urbane hero/antihero of the short stories of Saki (sample below). I’d never have figured it for a girl’s name personally.

      link to sff.net

    • Collic says:

      @ Rob. I’m not belittling it, I’m just pointing out that an implied constitution amounts to the same thing in legal terms – which it does. If anything is offensive its referring to the citizens of any country with an implied, un-written constitution as a position of ‘submission’. The consequences of a written constitution have both positives and negatives. An unwritten constitution is much the same.

      What I specifically replied to was the assumption a lot of American’s make that because we don’t have a written constitution somehow our legal system, and afforded personal freedoms are somehow more precarious. They really aren’t. In any case, the UK is now bound by a constitution (a european one), and answerable to the european court of human rights.

    • rob says:

      @ Collic

      “I’m just pointing out that an implied constitution amounts to the same thing in legal terms – which it does.”

      An implied constitution amounts to the same as the constitution I have every morning. You don’t even have the balls to put your rights it down in writing, it’s no wonder we left.

      “In any case, the UK is now bound by a constitution (a european one)”

      Awesome. It’s a good thing for you that the rest of Europe is trying to save you from yourselves.

    • LevingLasVegas says:

      @ Collic: The thing to be concerned about here is if videogames start to be regulated by a body like the MPAA.

      They already are. It’s called the ESRB. The MPAA has no real authority, but they do have a handshake with the major theater chains. It’s certainly not censorship, and it certainly beats the government regulating materials.

      @ deejayem: Personally, I think that makes more sense to have a single body that sets ratings for all media rather than separate organizations. And one should never have the government regulating those kinds of things. Yes, people on these committees can be puritanical prudes, but these type of regulatory groups are way better than anything state-sponsored and over time these people change out.

    • Consumatopia says:

      I’m agnostic as to whether hard and fast rules are better or worse in general at protecting freedom in general than subjective conventions, and, yeah, America has been known to infringe basic rights in a multitude of unspeakable ways up to and including rape, torture, murder, and genocide.

      But even if we’re wrong every other time, Free Speech is the one time America’s broken clock gets a chance to be right. It’s not just that I don’t trust the government to decide what is “good” speech, it’s that the very idea of regulating speech is categorically wrong in the same way that torture is categorically wrong (though, yeah, if I had a chance to trade, I’d rather live in a country that recognized the latter than the former. But there’s no reason we can’t make every country recognize both!) Ideas and culture are what makes human beings what we are, even when those ideas are wrong. Even when they’re evil. To censor ideas with the violent force of the state is to declare war upon the human spirit. It isn’t just a matter of not trusting the state to make decisions–even if I knew the state’s opinion were correct, it would still be wrong to enforce it with a sword.

    • Xaos says:

      I’d like to point out that as a majority we’re all gamers here and have you noticed how generally civil this conversation is? I’d have expected more death threats what with all that violence getting pumped into us.

      I think the biggest issue here is precedent, the other half of our legal system (aside from the Constitution). Only one person has mentioned digital distribution so far, this is where the whole thing breaks down. IF this precedent is set, it will set digital distribution and online services back at least 5 years (which basically means flash games).

      Imagine it’s illegal for anyone over 18 to buy a particular game. Now imagine you, as a legal adult buy that game. One of the modes of that game is online multiplayer…actually let’s say all of that game is online multiplayer. So you plug it into your Xbox 360, sign into XBL and jock some headshots. Then being a good responsible adult you go off to work and your underage brother comes in and starts playing that game. All well and good right? He didn’t buy it. BUT that’s not entirely true is it? He’s actively using a service which requires money to be spent for time played.

      This legally (even now) is regarded as him using your credit card to buy a service. Which means he is being sold the service. This is how it works with porn in the US and any credit card related sales in restricted countries, particularly Germany. So now Microsoft is liable as a service provider for providing content that is restricted. Not only can you sue them (which you cannot do now because of TOS but would be able to since TOS cannot restrict liability against criminal actions), you could also report them to the newly created agency in charge of dealing with game ratings and MS would take a fine.

      Now as MS,Sony,Nintendo,Activision, Valve, Ubisoft, EA, or any other company that provides a specific online service would you be willing to open yourself to litigation in that manner?

      So here’s the scary thing about laws like this. This law doesn’t specifically say that online services would be liable however it can be used as precedent in any case attempting to expand the law to include it. That is also the really scary part about this whole situation, our justices are not exactly huge gamers. They’re still referencing 8 year old games. Do you think they can adequately recognize the implications of their decision?

    • Collic says:

      @ leaving las vegas

      A body like the MPAA. The ERSB isn’t like the MPAA, neither is the BBFC. What I’m talking about in regard to that should be clear from the context of my comment.

      @Consumatopia Good points. I agree with those ideas in principle (of course), and am now going to stop talking broader politics before I break the comment system :)

    • bob_d says:

      @ Bascule42: There are two problems with Walmart. The first is that they are both ubiquitous across the country and have completely replaced all competing businesses in small towns. So if Walmart is in a town, there *is* no other game store, etc. (In a smallish town you wouldn’t get one anyways.) The second problem is that because they’re such a major buyer or goods, they both can dictate their own prices for things and the producers *must* kowtow to them when making products. (Which is why you have ridiculous things such as music labels coming up with sanitized versions of gansta rap albums, for example…)
      EA has no say in the matter – if Walmart doesn’t want to carry a product, no one can force them to.

    • Finnbot says:


      The fact that London Cabbies have to carry a bale of hay in their boot is a myth. The fact that they were also required to carry one back when it was a horse and carriage is also a myth. Although, they were required to provide hard tack for the beast’s midday meal. Trufax.

    • Patrick says:


      I’m not sure what to say, other than the end result of laws on my personal life is not my only concern. Is that really all you’re worried about? And you think this law will be as unenforceable as sodomy laws? (they were struck down in the states a few years ago, you know, as unconstitutional) You actually might have trouble buying M-rated games for your kids, because most retailers will stop selling violent videogames in general.

      This is a law that imposes heavy fines for selling a form of speech to minors. It’s doesn’t define these things in question as pornographic, obscene, or inciting violence. It’s just a definition of bad taste and “deviance”, and we don’t do that here.

      Also the hay bale thing, good to know guys, thanks.

  2. Falcon says:

    As an American I am thrilled by reading that. It seems that at least a few the judges are aware of the full implications of this. Seeing how they actively attacked the fallacies presented gives me renewed hope on our justice system. While there is still a long fight ahead, I have hope this can turn out alright, Roberts comments aside.

    • DrGonzo says:

      Why is it ok for a child to be able to buy GTA 4? I would be horrified if my child had been sold it.

    • Falcon says:

      It’s not, but that’s why the implications of this case are important. Remember that the US is a notoriously litigation happy place, in part because we don’t have the protections for lawsuit bullying that many Europeans have. This has many consequences.

      Picture the following, a kid (lets say 16) purchases a game rated as not for minors, GTA 4 as your example. Now the parents are upset that they have this game without their approval. Whats the appropriate response? Most parents would return the game and scold the child. By criminalizing this though there would be a certainty that some parents would sue the store for selling them this violent pornography (to borrow the legal term, not the sexual one). So instead of parenting, and being aware of what your children do, shift the burden of actually raising children to corporations and government.

      Now lawsuits are expensive to fight. With the absurd punitive damages our courts tend to award there is a potential jackpot waiting for the litigant. So in light of the potential for HUGE court costs, and legal liability, many large corporations will view this as a risk that is not worth it. M rated games would no longer be stocked at most of your bix box retailers. Since a majority of sales go through them, your average consumer would effectively not have access to them anymore. The cascade effect would likely cause less M rated games to be made, and certainly fewer blockbuters. De facto censorship.

      Is it a guaruntee this would happen, no. But in our culture there is a HIGH probability it would.

      tl;dr it should be the parents job to keep violent games away from kids, not the courts.

    • DrGonzo says:

      That does indeed seem crazy. Why is it not possible to just impose fines on the shops that break the rules like in the UK?

    • TCM says:

      They would be fined, AND ALSO sued.

      To prevent that from happening, they simply wouldn’t stock M-rated games in general, which would cause the ever-profit-seeking industry to tone down on the adult level of materials considered acceptable, which would mean gradually less M-rated games in general would be released.

    • Ridnarhtim says:

      OR (here’s a crazy thought):

      Stores stock the games, but don’t sell them to children.

      If it works for cigarettes and alcohol, what’s so crazy about making it work for games and movies? Not to mention it works in every European country I’ve ever been to. Someone who looks under 18 is trying to buy GTA? Check their ID!

    • Davie says:

      That’s how our current system works. The only reason this is an issue is because ignorant parents don’t check the rating on the box and buy whatever their kids want without a second thought. Then they complain that it’s too easy for minors to get their hands on M-rated games. *headdesk*

      The point is, though, that this bill would actually make it illegal to sell M-rated games to minors, rather than just frowned upon. This hugely increases the chance of a lawsuit, and one careless clerk who doesn’t check ID could cost the retailer and the publisher a hell of a lot of money. They don’t want to take the risk, so they don’t stock the game in the first place. At least, that’s how I understand it. So yeah, if this passes, it’ll be a huge blow to the game industry and we’ll start seeing fewer and fewer M-rated games. I’m against the bill, for sure.

    • Shih Tzu says:

      Ridnarhtim: Because the common interpretation of the First Amendment gives the US extremely strong freedom of speech and makes it extremely hard to carve out exceptions to it. For nearly 40 years (1915 to 1952), local governments were allowed to censor the content of films, but the Supreme Court eventually recognized its error and ruled that film had as much protection as literature and theater. It’s my hope that this case will result in a similar precedent establishing the same protections for games.

      I’m the furthest thing from the George W. Bush-loving, foreigner-hating right-wing American stereotype you can find, but in the realm of freedom of speech and aversion to government censorship (including state involvement in content regulation), as far as I can tell, we really and truly are the best in the world, AMERICA RULES NO. 1 WOOOO.

    • Arglebargle says:

      As a pertinent example of state law totally changing a national industry, the entire move from lead miniatures to pewter, plastic, etc, was predicated on a New York State ban on lead in children’s toys. Despite the arguements that military and fantasy miniatures were predominantly used by adults, the NY legislature was not interested in anything that got in the way of their noble PR of ‘Protecting the Children!’. Because of the market share of New York, no major miniatures company was willing to be locked out of competition there, and all started switching to alternative materials. Despite the new materials, at the time, being more expensive or less useful.

    • DJ Phantoon says:

      Davie, that’s basically the thing. Most problems with children can be traced straight back to the parents. Child doing poorly in school? Anti-intellectual or otherwise poor home environment for learning. Early alcoholism? Let’s see, did they get it from the nearest liquor store or… their parents. The scapegoating is really popular. I loved how the Columbine shootings were blamed on everyone BUT the parents of the murderers. Especially how they blamed it on Doom. Though, last I checked, Doom didn’t do anything besides be a video game. Doom doesn’t hit you or yell at you because it had a bad day. It also doesn’t make you eat vegetables or cook you breakfast in the morning. I wonder what entity is capable of doing that for the child that lives in their house…?

      It appears the court is taking the side of sanity here, but we’ll see. It’d be quite amazing if they ruled for it, it’s basically the same thing film had in the… 50s? 40s?

    • malkav11 says:

      But…the thing is, age-restricted items like tobacco, alcohol, pornography and guns are not sold in most stores in America. Wal-mart certainly doesn’t carry tobacco, alcohol or porn in my state, and while they might have guns, I doubt it. And Wal-mart constitutes something truly ridiculous like 40-50% of all videogame sales in America. If they don’t carry it, that’s a major blow to retail sales of that game.

  3. no says:

    “Last night saw the first hearings in the case know as Schwarzenegger vs EMA, which concerns the Governator’s attempt to bring about a US-wide ban on the sale of violent video games to minors. ”

    That’s not quite correct. This is about CALIFORNIA’s desire to do this IN CALIFORNIA. Because of contention within the state even at the state supreme court level, it was escalated to the Supreme Court of the United States for a ruling. The ruling may set legal precedence if other states want to cite the case to push their own agendas in their own states, but it will not directly impact any laws outside of the state of California.

    America is made up of a bunch of states and states have the right to govern themselves. We actually fought a war that was primarily over just this thing that some of you may have heard of, called the “Civil War”.

    • utharda says:

      Actually, I have to disagree. While this law is a California law, it is designed to have a chilling effect across the country. Since so many of our retailers are huge multi-state chains, gamestop, target, walmart etc, its quite likely that they will enact national compliance systems to avoid liability / bad press.

      I’m not sure this is a big deal in itself. I am concerned, as always that its another slippery slope towards an authoritarian state. I realize thats a big statement, but here we are 8 years after the patriot act, and I just got a thorough crotch groping before boarding a plane.


      Not even a cuddle afterward :(

    • Dawngreeter says:

      “We actually fought a war that was primarily over just this thing that some of you may have heard of, called the “Civil War”.”

      I am somewhat amused by this and, sadly, not at all surprised. There has been more than one civil war in the history of human civilization and most of us have heard of at least a couple.

    • Consumatopia says:

      Yeah, we fought a war over it, and slavery lost. The Fourteenth Amendment was passed, putting serious limits on the way states could “govern themselves”.

      Not that your overall point isn’t correct, but bringing the Civil War into it doesn’t make sense–it’s only because of that amendment California’s law could be struck down at all.

    • Lilliput King says:


      Yeah, I thought that was pretty funny.

      It’s odd, if anything adding “The American” wouldn’t have detracted from that statement.

    • Doug F says:

      I thought that was about Superheroes’ right to secret identities.

    • Bowl of Snakes says:

      “We actually fought a war that was primarily over just this thing that some of you may have heard of, called the “Civil War”.”

      On behalf of the rest of the US, I would like to apologize for this dude’s ‘tude.

    • JonFitt says:

      “We actually fought a war that was primarily over just this thing that some of you may have heard of, called the “Civil War”.”

      Yes I’ve heard of it. The Roundheads vs The Cavaliers as I recall. Don’t know what that has to do with California. Although the Cavaliers did favour girly Californian hair…

    • undead dolphin hacker says:


      The war known as “The American Civil War” to the rest of the world is known as “The Civil War” in America, or “The War Between the States” if you’re in middle school and need to grossly oversimplify the whole thing for an under-mature audience.

      I am somewhat amused, but, sadly, not at all surprised that some tool on the internet would attempt to take a factually correct statement and twist it into that oh-so-edgy “proof” that Americans are dumb.

    • bill says:

      we’re in the US now? No one told me.. i’d have shaved.

    • Lilliput King says:

      “I am somewhat amused, but, sadly, not at all surprised that some tool on the internet would attempt to take a factually correct statement and twist it into that oh-so-edgy “proof” that Americans are dumb.”

      Steady on, that’s fairly clearly not what he was saying.

    • DrGonzo says:

      Yeah, I thought the civil war was fought over whether the King or Parliament should govern the country.

    • mujadaddy says:

      @undead dolphin hacker:

      Ohhhh, you mean “The War of Northern Aggression”… I was lost there for a moment.

    • Markoff Chaney says:

      @ no – I always preferred the term “The War of Northern Aggression”. Forgive my aside as I return to my Mint Julep.

    • Markoff Chaney says:

      @mujadaddy – Well played. My fault for not refreshing first. :)

  4. televizor says:

    “one of the reasons that sex and violence are so similar”
    Agreed and I… wait, what?!?

    • mrmud says:

      Maybe Morazzini is into S&M

    • Kast says:

      I read that and thought “Did he just call sex ‘rape’?”

    • adonf says:


      Yeah, nice facepalm moment. Those silly Americans….

    • jeremypeel says:

      There’s a worrying tendency in US law to stretch existing legislature to cover any old vaguely related thing. I guess it’s simply easier to get something like that passed than an entirely new law. That leads to obvious problems in glossing over differences between mediums, as Justic Kennedy notes:

      A similar problem has plagued copyright law for the last 80 years or so, where recorded material was just kinda tacked onto printed material. With massive implications.

    • jeremypeel says:

      Oops! Quote I attempted to include:-

      Justice Kennedy: It seems to me all or at least the great majority of the questions today are designed to probe whether or not the statute is vague. And you say the beauty of the statute is that it utilizes the categories that have been used in the obscenity area, and that there’s an obvious parallel there. The problem is that for generations there has been a societal consensus about sexual material.

    • adonf says:

      @jeremypeel: “stretch existing legislature to cover any old vaguely related thing”

      Except that sex and violence are not even vaguely related. One is good and the other is bad, one is an act of love and the other an act of hate. They’re as separate as can be.

    • ix says:

      I think he meant “similar in that we don’t want young children exposed to them”.

      I partly agree with him on this one. I don’t see how you can on the one hand state that the government should be able to criminalize selling porn to children, but not selling violent video games (or movies, books, …) to children.

      I don’t think it’s a good idea (definitely should not be a penal offense), but I don’t see how they make the distinction so readily between one type of content children shouldn’t see and another type of content children shouldn’t see.

      Of course the above suggests the statute is so badly written (too vague) that it’ll get thrown out on technicalities.

    • radomaj says:

      If you read the full transcript, you’ll find that what ix says is true. Morazzini didn’t mean that sex and violence are similar. He meant that sex can be deemed as obscene and therefore not be protected by the First Amendment and that in the opinion of the people proposing the law, so can violence.

    • DrGonzo says:

      Well I very much disagree with that. Sex should have a capped rating of say 15. There is nothing wrong with exposing teenagers to it. And you would be naive to think teenage boys don’t access it already.

    • ix says:

      DrGonzo: Well the point here is that (disregarding other major problems with the statute for now) they want to do the same for violence as they already do for sex, meaning sex is only for adults.

      Perhaps these judges will just find a way to basically say that sex (or rather, obscene sex, which apparently is everything that shows dangly bits in the US) is worse than violence. I’m wondering if there’s actually any proof that this is more damaging, i.e. are there any studies that say children will do just fine after watching Rambo shoot a bunch of people in half, but watching some people fuck will damage them for the rest of their lives? Somehow I doubt it.

  5. no says:

    “@ CMaster: Mr. Meer did: “…the real problem is that notoriously conservative mega-chains like Walmart would likely refuse to stock adult-rated games at all, which means sales will plummet and publishers will focus efforts on family-friendly stuff instead””

    No. Games are already voluntarily rated by the ESRB and stores voluntarily enforce their own company policies around those ratings (for example, you can’t buy an M-rated game unless you are at least 17). Note the word VOLUNTARY. This is how all other media is handled, also (ie, movies use the Motion Pictures Ratings Board). We’re not talking about AO (adult) games, which retailers already don’t carry and which largely don’t even actually exist.

    They have attempted to push law in California a number of times over the last decade that would *criminalize* selling an M-rated game to someone under the age of 17. In other words, it would be an earth-shattering precedent set that puts the government in control of determining what kind of content is “obscene” or what kind of content is “too violent” in a videogame and then enforce it as *law*.

    This is contradictory to the amendment to our Constitution which is so deeply held and respected that we made it the FIRST one. Additionally, this treats videogames as an entirely separate category from ALL other media. Treated with a prejudice not applied to books, movies, television, or music.

    As for the people pushing it? It’s the same group it always is. Morally righteous (at least, in public, but we know what those people turn out to be in private) busy-bodies who don’t give a rip about the Constitution and want to impose their judgement on all of society. The same people who write hundreds of letters (each) to the Federal Communications Commission to complain about CBS when Janet Jackson’s nipple was accidentally show for a split second on live television. The same people that draw up enormous public campaigns against Public Television, because they are certain that TeleTubbies are homosexual.

    • Arthur Barnhouse says:

      I think Alec is right, insofar as the fact that vidoe games would be essentially controlled the same way pornography is. With that, companies would probably drop video games from there shelves. Even if they weren’t uncomfortable with the implications, there is too much risk of getting hit with a fine to be worth it.

    • Jad says:

      Well, basically they’re both right.

      From a practical point of view, Wal-mart & Co. would stop stocking TF2 and other M-rated games because of the fear of criminal penalties that they don’t face with stocking R-rated movies.

      From a philosophical, we-like-games-here point of view, this law means that videogames are not creative expressions like movies or music, that they are a lesser form of entertainment, definitely not art, and in the same category as obscene pornography. Ban this sick filth, etc.

      Both things are bad, of course.

    • sneetch says:

      “I think Alec is right, insofar as the fact that vidoe games would be essentially controlled the same way pornography is. With that, companies would probably drop video games from there shelves. Even if they weren’t uncomfortable with the implications, there is too much risk of getting hit with a fine to be worth it.”

      Would they? Alec’s assertion that they’d view them as basically the same as hardcore porn seems a bit presumptuous and alarmist really. Why wouldn’t they consider them the same as cigarettes and alcohol? Those also carry a threat of criminal penalties if they’re sold to minors, in California if you sell alcohol to a minor the licensee will receive a $750-3000 fine for the first offence.

      link to acgov.org

    • JonFitt says:

      As far as I can see the US already has worse censorship than the UK on games, it’s just de facto self censorship enforced by the moral attitude of Walmarts.

      Take for example Fahrenheit/Indigo Prophesy, or The Witcher. Both had their nudity removed for their US releases to avoid an AO rating, which in the US is commercial suicide for a game.

      Is it somehow better that it’s censorship by market forces rather than regulation? Some people might think so, but I for one would prefer neither.

    • StingingVelvet says:

      It’s not about simply making M-rated games legally require ID or whatever though, actually from my understanding this law doesn’t involve the ESRB what-so-ever. This law is about a government-backed group of people deciding if a game is obscene because of violence defined in the law’s text, which would then make the game part of a new sort of “black-listed” group of games. This would effectively ban those games in the US, as no store will then carry them other that tiny specialty shops. I would bet even Steam would refuse them just as they refuse AO rated games today.

      If this law, or another law, simply made the ESRB or MPAA ratings legally enforceable it would be, at least to me, a less important change. I would still fight it to preserve 1st amendment rights, but at the end of the day it wouldn’t change day-to-day video game business much. A black-list of games deemed too naughty to be considered normal media though? That’s a death sentence, and the law says they can apply it to any game where there is violence against humans.

  6. Huggster says:

    Just bring back Leisure Suit Larry?

  7. Clovis says:

    the real problem is that notoriously conservative mega-chains like Walmart would likely refuse to stock adult-rated games at all

    Yes and no. Walmart, and pretty much all national game retailers, already do not carry adult-rated games, or at least AO rated games. They’ll stock games rated “M” currently, but yeah, I could see those getting dropped as well if they faced lawsuits for not correctly determining if the game included “deviant violence”.

    • Bob and his dog says:

      Yes the major chains don’t carry AO games but MS/Sony/Nintendo also ban them from their systems so they don’t get mad.

  8. Lars Westergren says:

    >the three prongs […] (for identifying porn in legal cases)


    • stahlwerk says:

      *looks up prong in a GB-DE dictionary*

      Huh, way back before the 18th century german law also applied three prongs in some cases (sometimes related to obscenity), but they mostly were the red hot glowing, pinching kind. (Sincere props to Napoleon for that code of his.)

      Incredibly strange choice of words.

    • VelvetFistIronGlove says:

      It’s a normal use of the term, referring to the several questions that make up the whole test. Metaphorically, it refers to the prongs of a fork, which while separate are still part of the whole fork.

  9. mrmud says:

    Completely unrelated to this particular issue but as a swede I dont think I will ever understand the americans blind unrelenting worship of their constitution.

    As if something written over 220 years ago should be eternally binding and that changes in the zeithgeist should be resisted.

    Sure, the US would probably be in a worse shape now if it werent because of it, but it still doesnt make sense to me.

    • Lilliput King says:

      I’m no politically knowledgeable guy, but I’d surmise it’s probably to give individual governments less power by prohibiting their ability to alter the laws upon which they’re elected, along with preventing various human rights transgressions.

    • CFKane says:

      @mrmud As an American (and a lawyer), I wanted to note that the interpretation of the constitution changes all the time, even if the text does not. The First Amendment (“congress shall make no law . . . abridging the freedom of speech”) is one such area, where there has been a continuing common law dialogue as to what constitutes “speech” that is protected.

      That is why we’ve moved from, for example, it being constitutionally permissible to have criminal sanctions for incitement for talking about communism to it being almost impossible to be constitutionally charged with incitement for any speech. Another example would be the “fighting words” doctrine, which originally covered a variety of speech that might offend another person (to the point that they would become violent) but has been increasingly circumscribed.

      So, to answer your question, Americans are devoted to the Constitution because it embodies the basic freedoms that are, at least in the eyes of the American people, essential. (It is also an exceedingly practical document at times – we need to know when presidents take office and what not). It is not as rigid as some of the more conservative Justices (Scalia, Thomas, etc) might want it to be.

      I hope that makes some amount of sense.

    • Jaxtrasi says:

      Haha. Well, it’s obvious what I meant.

    • Rinox says:

      @ CFKane

      Good summary, thanks. I think the whole idea behind it is often eclipsed (as it would in any nation, at any time) by idiots who just scream that “it’s in the constitution!” at any given time, creating the idea of an unchanging text with an invariable interpretation. Obviously, those people usually have no idea what they’re talking about but talk with a very smug confidence about its value, which can be misleading to outsiders and other internets peoples.

    • Clovis says:

      Here’s what randomly popped into my head: We regard it so highly because it is our creation story.* What’s the creation story of China? I don’t know, the gods created it? It’s always been there. But the US was created by a few pieces of paper. If we were to throw it out we’d just be a bunch of jerks who stole some land from the natives.

      CFKane’s explanation is very good, too.

      * lulz, I just started playing Dragon Age: Origins yesterday ;-)

    • Jad says:


      Yep. It’s always a good rule of thumb to remember when making a broad generalization about a group of people: there are always a number of really loud, really dumb people in any crowd.

    • Kast says:

      As a Brit, I do rather envy the solidity and certainty of a written constitution. The people of the USA -know- what their country stands for and how it should operate because it’s clearly written in black and white yellow. Apart from length and largely incomprehensible, practically secret documents, the people of the UK only know how it is currently operating because that’s how it was operating yesterday.

      And if government stopped? What then?

    • JonFitt says:

      “What’s the creation story of China? I don’t know, the gods created it? It’s always been there”

      The First Emperor: The Man Who Made China (Part 1)

    • frymaster says:


      “Americans are devoted to the Constitution because it embodies the basic freedoms that are, at least in the eyes of the American people, essential.”

      yes, but when I ask an American why gun posession should be a fundemental right, for example, I normally get the answer “because it’s in the constitution”, which is more than a bit circular.

    • Rinox says:

      @ Kast

      That is a very British aspect indeed. I would like to point out tough that almost every other European state has a a written constitution though.

    • StingingVelvet says:

      Because if only the government has guns then you are at the mercy of the government. Also because self-defense of one’s property was very important 100 years ago during the frontier days, and that spirit still exists today to some extent.

      A lot of the “freedom” that Americans focus on is in fact unique from many other countries in the respect that in many ways it is about freedom from government, not just the freedom to pick one’s government. There is still a very core American idea that the government should stay the fuck out of our business unless there is a very compelling reason to do so. That idea is what spawned last night’s rejection of Obama’s government expansion through the mid-term elections, for instance. Too much government! OMG!

    • Blob says:

      That sounds like anarchy, just with someone making sure shit doesn’t get TOO far out of hand.
      I’m happy knowing that there are people out there protecting me from being mugget or killed, who have an easier job doing so because they (generally) have a weapon and number advantage.

    • CFKane says:

      @frymaster I won’t disagree with you that there are people who afford the Constitution a sort of talismanic quality. When people say that something should be a fundamental right simply because it is in the constitution, they are engaged in circular reasoning. What they are trying to say is that the government should not be able to regulate firearms because it is inconsistent with the limitations laid out in the second amendment. As StingingVelvet said, the constitution is (overwhelmingly) about setting limitations on the power of the government. As a consequence, Congress (or the States) cannot pass a law banning firearms, because it exceeds the structural limitations on their power. If we think that this is a problem, there is a process to amend the Constitution and change those limitations. The process is rarely used, but that is by design – the Constitution is framed in a way that makes it difficult to grant additional powers to the government.

      So I guess the reason why people respond in such a circular fashion (to give them the benefit of the doubt) is because when you ask the question: “why should [the right to keep and bear arms] be a fundamental right” the person you are talking to hears the question as “why shouldn’t the government be allowed to ban guns.” The answer “because it is in the constitution,” is a fine answer to the latter question.

      The history of firearms in America is a complicated one, as the various Supreme Court decisions addressing the Second Amendment show. The Second Amendment protection of “the right to keep and bear arms” has had its share of litigation, with gun control being common up until the last few years. I would say that the history of the Second Amendment is somewhat similar to the common law history of the First Amendment in that respect.

      As for why it should be a fundamental right, I’m not going to argue that one. It is a judgment that I disagree with, but I recognize that I live in a system where constitutional interpretation is based on a combination of the text of the constitution and common law precedent, so I accept the judgment of my fellow citizens.

    • Harlander says:


      What. the Magna Carta not good enough for you now?

      *exit by nearest window*

    • RecklessPrudence says:


      “Because if only the government has guns then you are at the mercy of the government. ”

      I’m always baffled by this argument. Okay, yes, you have a pistol/shotgun/rifle/all of the above, maybe even an assault rifle or up. The government. Has. TANKS!

      On Topic: Glad to see that some people’s lawmakers are sane, I always love it when some judge ever-so-politely shuts down a stupid argument/case – bonus points if they can insult the intelligence of the litigator in a manner they can’t get upset about. Now, if we Australians can just get the normal version of L4D2, I’ll be happy.

  10. laikapants says:

    I see two problems with California winning this (which seems highly unlikely):

    1. In addition to Wal-Mart refusing to carry it, I imagine MOST retailers would refuse to carry it. They might have a near perfect record on not selling M-rated games to minors, but who in their right mind would take the risk of a $1000 fine for every mis-sold game.

    2. Precedence, which to me would be the even bigger deal to the country at large.

    That said, I highly doubt the Supreme Court is going to rule in California’s favour.

  11. Jannakar says:

    Am mot a expert on the US constitution, but could the Supreme Court rule that the Californian law is unconstitutional and therefore avoid this popping up elsewhere and strike it down in California itself?

    • laikapants says:

      @Jannaker: It won’t put a stopper on people attempting to pass such laws altogether, but it does send a message that future attempts (for the foreseeable future anyway) would ultimately be struck down in our highest court. Which, in turn, is the main reason I think the Supreme Court decided to take the case.

    • JonFitt says:

      @laikapants is right, and that’s precisely what sane people are hoping for.

  12. Dawngreeter says:

    This is awesome. Considering what a completely ridiculous circus the US political process has become, it is so great to see some other parts of the system actually work. Not to mention deliver some serious ass-kickage.

  13. Drug Crazed Dropkick says:

    Basically, the judge is a logical human being.


    • Shih Tzu says:

      I doubt many of the UK people here know the justices on the US Supreme Court very well (and, I mean, why would you), but Antonin Scalia is generally about as extreme a conservative as they come. He’s against any restrictions on the death penalty, he’s against people being advised of their rights upon arrest, he’s in favor of letting states throw gay people in jail just for being gay… I basically despise everything he stands for.

      So it was fascinating to me to find out that, in this particular case only, he’s totally my hero. Of all the judges who spoke up at this hearing, he was the one who seemed leeriest of state censorship, the one who seemed to get the problems with the statute most of all.

      Kagan, one of Obama’s picks, also gets points with me for correctly noting how mainstream the supposedly outrageous content in games like Mortal Kombat is among people just a generation or two younger than the members of the court, such as their very own clerks. And I like Sotomayor’s weird but highly astute question about whether the law applies to violence against Vulcans. But they’re more centrist and I’m predisposed towards them in the first place; Scalia was much more of a pleasant surprise.

  14. pakoito says:

    They are legalizing marihuana at the same time theyre illegalizing videogames. Poor poor teenagers, so bored they’ll be.

  15. Archonsod says:

    Given the current output of the US games market seems to be nothing but endless Medal of Modern Warfare clones I’m almost hoping they pass this just to see if there is in fact any imagination, innovation or similar left in the developers over there.

    • pakoito says:

      The industry now is like hollywood. Cactus is their Lars von Trier.

    • Jad says:

      Depending on how broadly this law is interpreted (which is one of the issues with it, it is very vaguely worded), lots on lots of classic, innovative games could fall under this law. Think about, say, Fallout with it’s “bloody mess” perk. I recall Planescape: Torment having a bunch of violence it it. In fact, lots of RPGs, like The Witcher and Dragon Age. Most FPSes, even including innovative ones like the original AvP, System Shock 2, Deus Ex (you could gib people in that game!), Half-Life 2, UT, Doom, etc. Laws like this will have the opposite effect: they will stifle innovation and drive publishers to even more bland fare.

    • Jaxtrasi says:

      Fallout would not be any worse for lacking the Bloody Mess perk.

    • Archonsod says:

      “Depending on how broadly this law is interpreted (which is one of the issues with it, it is very vaguely worded), lots on lots of classic, innovative games could fall under this law.”

      Games which were never carried in Walmart in the first place? The law does not outlaw said games, it merely makes it highly unlikely such games are going to be carried in the larger, family oriented stores. If anything it’d be more likely to go the same route as the porn industry – the adult oriented games being carried in specialist stores while the less offensive games are the ones who make it to the super market shelves. Generally, that’s only going to be a problem for those publishers who focus on market share; i.e. the same ones who release the lowest common denominator mass-market crap. Innovation tends to be a dirty word for them in the first place.

    • Om says:

      Yeah, it could usher in a new age of 2D side-scrolling platformers. Every hip RPS reader should support this measure!

    • Jad says:


      Huh? Walmart carries games like Fallout 3, Dragon Age, Half-Life 2, etc. It’s not all Dora the Explorer and The Sims. Admittedly, they have fewer PC games nowadays, as everywhere non-digital does, but they carry them. I bought Deus Ex in a Walmart-like big box store ten years ago. For many people, it is the primary place for them to buy videogames in their town.

      But more importantly: If anything it’d be more likely to go the same route as the porn industry – the adult oriented games being carried in specialist stores while the less offensive games are the ones who make it to the super market shelves.

      I do not see this in any way being a good thing. Violent movies, books, and music are sold in mainstream stores, but videogames are equivalent to porn? Fallout 3 should be allowed to be legally defined as “obscene”? As “deviant”? As dirty, filthy, sick shit that should not be in good, normal people stores but should be confined to the basement with the porno mags or to specialty stores in the bad section of town with the sex shops and peep shows? While Violent Action Movie 3 with similar shoot-off-his-head scenes like in FO3’s VATS combat is cool? No. No thank you.

    • Vagabond says:

      re: violent games going the way of the porn industry.

      This would effectively mean the end of most of those games.

      If you can get a hold of a video camera, a couple of thousand bucks and an attractive woman with low self-esteem, you can make a porno with production values that is high enough to satisfy most of your target audience, and therefore turn a profit despite having a relatively small distribution network.

      The same is not even remotely true of the modern FPS. Despite how much I might like some of the indie stuff people are making these days, most of my games playing fare, and indeed the bulk of my violent games playing fare, is still big budget, triple-A type stuff.

  16. dhex says:

    it’s nice to see scalia not being a complete dick for a change. even kagan, who isn’t exactly a fan of freedoms, didn’t raise any dumb questions, though i guess alito had that covered.

    As if something written over 220 years ago should be eternally binding and that changes in the zeithgeist should be resisted.

    but it’s nowhere near eternally binding, as the last 200 years of judicial review have shown. if you’re speaking of originalism (the judicial theory) well, it’s generally not nearly as originalistic as its portrayed.

    • mrmud says:

      I guess you have to excuse my ignorance, as a swede looking in from the outside its hard to get the subtelties of the system.

  17. Calabi says:

    I’m sure some people are chomping at the bit for this to come into action and a new utopian society to be born. It would be interesting to see america not having any m rated games, I’m sure that would create some violence in of itself. America would stop making them, we’d have europe and japan going to town with violent games and a large covert dealing/pirating of games to america.

  18. Jake says:

    I am personally looking forward to all enemies in games being relabeled as Vulcans, maybe with some patch that gives them little pointy ears, like the green blood patches in Germany. I also love the idea that it is perfectly acceptable to mutilate and torture Vulcans, like even schoolchildren are OK to do that.

    • Matthew says:

      In a stunning twist the whole debate is a cover for the Illuminati, who are preparing the young of today to resist the impending alien invasion in 2037.

    • Aradayn says:

      Remember, Vulcans have green blood.

    • Formivore says:

      “Eternally would the name KAGAN be cursed amidst the ranks of the Vulcan oppressed…”

  19. Guildenstern says:

    Even if this passed it still wouldn’t make it illegal for clueless parents to buy violent games for their kids. So it was entirely pointless anyway.
    Also, people who who go on about awesomeness of those judges just because they ruled favorably on their tiny insignificant pet issue are pathetic.

    • Archonsod says:

      That depends on whether the point is to prevent the games being played by kids, or to empower the parents to decide on if a game is suitable for their kids. Under the current system it’s the store clerk who decides whether the kid can buy a game or not, rather than the parent.

    • Clovis says:

      @Archonsod: What? Is this kid also playing the game over at the clerk’s house? Parents already have PLENTY of power to control what games their kid plays. I know the XBox has parental controls built right in, so it doesn’t matter what game Timmy buys.

      Requiring the government to control the sale of violent video games just gives lazy parents another excuse to not monitor what their kids are doing. I don’t really see how it helps them any.

    • Archonsod says:

      For the same reason restricting alcohol, porn and tobacco sales helps. It’s impossible to monitor a child’s activity 24/7, unless you rig your house up with some kind of Big Brother style surveillance system. If it was perfectly legal for a retailer to sell alcohol to a 12 year old, how precisely would you stop that as a parent? Prevent the child from owning money or leaving the house unsupervised?

      All the law seeks to do is to legalise the current voluntary system. It’s not banning adult oriented games, it’s simply making it illegal for a retailer to sell a mature rated title to a kid. If the current voluntary system is working fine, then it shouldn’t make a difference as the retailers are already refusing the sale of M rated games to minors.

      The only difference to the current system beyond the legal penalties is that they’re looking to have titles rated via a jury rather than the ESRB system. Which is preferable is pretty much up to personal opinion.

    • Jad says:

      The only difference to the current system beyond the legal penalties is that they’re looking to have titles rated via a jury rather than the ESRB system. Which is preferable is pretty much up to personal opinion.

      While I don’t want this law at all, there is definitely a major difference between a jury system or ESRB. The ESRB lays out (relatively) clear guidelines as to what game activity falls into which rating category, a jury is a total loose cannon, and as the justices note, will leave game developers in a very confused state. One jury could decide a game with spines flying everywhere is fine, while another could flip out at a gun being pointed at a human.

    • Clovis says:

      But alcohol and tobacco are illegal for them to use. Those laws are not there to help parents. Should we also have laws making it illegal to sell non-pornographic dirty/violent books? What about violent movies? What about other products like food? I’m sure Jewish parents don’t appreciate it when the deli serves their kid a ham sandwich. Shouldn’t we just ban selling things to children* altogether? The parents should be empowered to make these decisions?

      Oh, one more minor problem. The Constitution and Bill of Rights do apply to minors regardless of what their parents say.

      * Keep in mind that the word “children” includes teens

  20. NukeLord says:

    Wait, so what about Spock then?

    • Corporate Dog says:

      Snuff videos featuring Nemoy-in-Pointed Ears are a-okay.

  21. jarvoll says:

    Just be goddamned thankful none of you live in Australia. Trained kangaroos are descending upon my abode as I type this to take me the Corroboree Gulag to serve 5 years for that little swear at the beginning of this post, and for being of the opinion that I, an adult, ought to be allowed to play adult video games. I’ll see you in 5 years – wish me luck in not dropping the didgeridoo.

    • Rinox says:

      This made me laught (and also a little sad, as it actually seems to be nearly that bad Down Under).

    • Arglebargle says:

      I was considering a post damning Britain for letting the Puritans escape our way, instead of, say, sending them to Australia, and just giving us the cool criminals instead. But I guess that didn’t work either…..

  22. Tei says:

    Do usa plan to outsource his media production?

    While that probably not what USA want, seems a country where religious and right left ideas can climb to the top and dominate politics. You don’t need a hitler to have some bad ideas passed as laws, you only need a religious or right left jerk.

    This maybe is good for UK, since more people could be making games here in europe, to avoid the USA “sharia” laws,… but is probably mostly bad, because will make harder to sell good games in USA, so the whole market is damaged. Most companies will “route the damage” producing lower quality titles, where blood and other realist effects are removed. Making killing something nice and clean, and not dirty and gory. In a way, what this laws want to achieve is to dehumanize any piece of art.

    • Clovis says:

      No, in the US you need a lot of those jerks to pass a law. This California law was passed when all the jerks in CA (apparently over half the population) voted on it. Luckily, our Constitution has a process for p0wning laws that have been deemd to have too high of a jerk quotient.

      But there is still hope! If you can fill 2/3rds of the Senate and House, and then find enough jerks in 2/3rds of the States, you can amend the Constitution. See Prohibition.

    • dhex says:

      us sharia laws?

    • Matt says:


      No, this law was passed by the California congress, not by ballot measure.

    • Haplo says:

      @ Dhex

      Forget it, he’s rolling.

  23. Nallen says:

    Two overarching themes of the way America presents itself/is presented to us in Europe strike me as hilarious and scary at the same time: Americans are terrified of naked people (see “for generations there has been a societal consensus about sexual material.” and (unrelated) “I think this is one of the reasons that sex and violence are so similar” and they are desperate to absolve themselves of all personal responsibility (see litigation culture.)

    Americans, is this presentation/impression a fair one and if so why are these themes prevalent? If not, why does it seem that way across the pond?

    • Consumatopia says:

      I’d say those quotes are probably more intended for argumentative/ideological purposes than attempts to sincerely describe American psychology. This is basically an argument between people who want to regulate sexual obscenity but want absolute First Amendment protection for violence, and people who want regulate both. The far simpler, more logical point of view–that the First Amendment makes no distinctions like these at all and it should all be free–isn’t represented here, and judicial precedent has gone against it for decades or more. Since the distinctions either side wants to make aren’t in the text, they have to find the distinction somewhere else. And that means making broad statements about American culture.

      This is particularly obvious in the case of Justice Scalia. He’s one of the “good guys” here, but since he’s a “strict constructionist” and claims that the entire work of judicial interpretation is figuring out what words meant at the time they were written, he has to contort himself with stuff like “And it was always understood that the freedom of speech did not include obscenity. ” So not only did we not like obscenity, but we changed the definition of our words with the sheer power of our hatred.

      But he’s simply the most obvious–they’re all playing this game, and relying on judicial findings of fact regarding American culture is probably not wise.

      It might be the case that Americans are more afraid of sex and less afraid of violence than Europeans, and that’s unfortunate though not necessarily unusual–especially if you start looking at countries outside NATO.

      And it might be the case that we’re more litigious, though that might be a tradeoff of having a weaker regulatory state that many European countries.

    • StingingVelvet says:

      I wouldn’t say we fear the naked person or sex as much as it may seem, it’s more about repression… the idea that it’s naughty. We still focus on it and there’s sex and nudity everywhere in America, you’re just made to feel super guilty for looking at it, which is stupid.

    • bob_d says:

      Americans have been more comfortable with violence than nudity. See: public response to the Janet Jackson television nipple flash and the subsequent fines paid by the network. The same groups upset with that later *demanded* that the gory “Saving Private Ryan” be shown on television uncut, when some television stations shied away from showing it, mistakenly believing it would create similar controversy and fines. You don’t see nudity on broadcast television, and even on basic cable it’s usually censored (BBCAmerica edits and censors programs before it shows them, for any nudity or swearing, but not violence.)
      This is why American games feature plenty of violence but rarely any nudity or sex – it takes substantial violence to be a mature game, but any nudity or sex will automatically give it the most restricted (adult) rating.

    • mujadaddy says:


      It’s just teen birth-control. Chillax, bro.

    • bob_d says:

      @ mujadaddy: It’s not working. It’s reallynot working. In fact, it’s having the opposite effect. (Compare teen pregnancy-rates in the US “Bible-belt,” with, say, sex-positive European countries. It’s more than ten times higher in Texas than Sweden.)

    • Poindexter says:

      RE: fines for indecency/obscenity
      As far as fines paid for the “wardrobe malfunction”, the 2nd Circuit US Court Of Appeals knocked the FCC for those policies. Saying that the FCC is way to vague and inconsistent with its rulings. See here.

    • bob_d says:

      @ Poindexter: Yeah, but the chilling effect had already occurred, and television networks are still pretty gun-shy compared to before that event. Certainly no broadcast station would deliberately broadcast an image of a nipple, unlike most European countries.

  24. Barry Wonten says:

    Fine by me, to get rid of a lot of violent games. Then maybe we will see some real innovations in game, and less of CoD and MoH and GTA and all the other crappy games. Let’s see if we can get a ban upon all the Sims games too.

    ….but you have to pry L4D from my cold dead hands!!!!

    • Om says:

      True ‘dat. Its all the violence (in games we don’t like) that’s stifling innovation in the game industry. Violence and The Sims

    • Bascule42 says:

      Actually in The Sims 2, I got sick of caring for elders, and just walled them off in an unescapable box with no food or tiolet, while buying the surving relatives a 3500 simoleon flat screen TV to take thier minds of it. Would that count?

  25. clownst0pper says:

    Is that transcript real? It’s like a bunch of old gits lecturing a child…! Brilliant.

  26. kalidanthepalidan says:

    These guys need to go on tour! Hilarious.

  27. Corporate Dog says:

    One one hand? Yay. California’s law is going down in flames.

    On the other hand? The only reason this is happening is because Scalia and his right-wing activist posse on the court recognize that… (A.) Video games are Big Business. Corporate dominance must be upheld at all costs. AND (B.) The Founding Fathers loved them some violence, and guns, and stuff wot blow up real good. But sex? That’s just icky.

  28. The Sombrero Kid says:

    This is no where near as big a deal as Americans think it is, Wall Mart would sell cocaine to children if it resulted in net profit, the arguement that people would stop making games for other markets because they couldn’t sell them in Wall Mart US is preposterous also.

    It’s important for us to remember, however, that games are uniquely different from Film & Books in their interactive nature, that’s what makes them so good and also worthy of separate analysis, although if you believe in the right of unlimited expression, you can’t deny that games are simply expression, in the way a Movie or other form of media is and so should be regarded with the same freedom.

    • DrGonzo says:

      I agree they would indeed sell anything if they could make a profit. But, if a few angry mothers make a scene about evil violent games, I could see them no longer selling those games as they feel the negative image would cost them more than selling them would bring in.

      Maybe we have enough sensible adults playing games now that it wouldn’t matter. Anyway, why do we care? I get all my games off the internet either from someone like Play, or as a download.

    • Clovis says:

      Then why is there so little nudity/sex in mainstream games? There is plenty in every other medium. I think it is out of fear of losing sales to the American public. That’s a big block of sales to give up just to release a game that would get in AO in the US. This law could have a similar affect on violence.

    • The Sombrero Kid says:

      @DrGonzo i agree, but i think that Fox news has far more control over these people than the supreme court and so it’s actually a separate issue.

      @Clovis i think in this case correlation isn’t causality, i don’t believe there are any game developers who could say their sex minigame was cut because of fear of Wall Mart censorship, i expect it’s because game developers don’t want sex in their games, personally the reason none of my games have sex in them is absolutely nothing to do with censorship.

    • bob_d says:

      Clearly you’ve never shopped at Walmart. Walmart prides itself on being a “family friendly” chain. So although they’re more than willing to mistreat their workers, they won’t carry any products that might lead to people protesting outside. They don’t carry pornography (which is essentially what this law would turn violent games into), and they won’t even carry music with “explicit lyrics,” which is the most telling. Given the products that they’ve refused to carry in the past, it’s pretty clear they’d stop carrying games that *might* run afoul of this law.

    • bob_d says:

      @The Sombrero Kid :
      Speaking as an American game developer, we don’t put sex in games because that’s a guarantee to get it an Adults Only rating, which means no big stores will sell it: i.e. it’s commercial suicide. The ratings group has decided that all sex and nudity is inherently “adult” and developers are forced to work within that context. That’s true that it isn’t censorship, but it also isn’t because “we don’t want it.” Financially, we don’t have a choice. If one is wiling to make a game that isn’t going to sell, then sex and nudity are fine. On the other hand, foreign games with sex/nudity do get censored – by American publishers.
      Were this law to be passed, it would simply create a new category of game elements that would be commercial suicide for developers to include.

    • Clovis says:

      @Sombrero: It’s not just Walmart and other major retailers. I don’t you can buy a game on an XBox in the US with an AO rating. I don’t think MS will approve the game. Not sure if Sony would. Basically, an AO means almost NO sales in the US.

      It doesn’t have to be a “mini-game”; just story elements and images. GTA has gotten away with a lot, but it’s hardly the Sopranos. Adding more sex and nudity to games like GTA will only make them more popular. Since when does sex not sell??

    • Calabi says:

      I think we dont see sex in games that often, is because watching two marionettes girate backwards and forwards isnt sex.

    • malkav11 says:

      None of the Big Three console manufacturers will approve AO-rated games for sale, and any game with any significant sexual content runs a very strong risk of being rated AO by the ESRB. See the ridiculous “Hot Coffee” hoopla over GTA: San Andreas, where some enterprising hackers discovered a ludicrously unsexy, fully clothed sex minigame buried in the game files and the ESRB decided this was sufficient to rerate the game AO, resulting in a countrywide recall of the game.

    • Capon says:


      “I think we dont see sex in games that often, is because watching two marionettes girate backwards and forwards isnt sex.”

      I’d refute that with the evidence of a large sex game market sector in Japan, plus the dozens of underground mod and fanart sites that cater to gaming sex.

      Games don’t have ‘real’ sex in them (two biological beings mating for procreation or recreation purposes), but have the image of sex instead. Which, to a lot of the consumers of the mentioned products above, is good enough for them. If it weren’t for Western moralities, we’d probably see just as large of a sex game market here in the West as there is in Japan.

  29. Clayton H says:

    All these posts and not one American stickler pointing out that Justices and Judges are slightly different things! (Well, okay, just one)

  30. Sarlix says:

    I find it humorous that Arnie would be so hard-line on violence considering his past film career. When I was in Primary school aged about 6-7-8? The most popular film in our class was Terminator 2. Literally all of the boys had seen it and some even had action figures! Boy was I jealous of the kid who had the mangled up arm-face terminator. My point is I bet Arnie wasn’t to concerned about kids watching his films. Showing opposition on this issue is probably good for popular vote.

  31. Bhazor says:

    “which means sales will plummet and publishers will focus efforts on family-friendly stuff instead.”
    Oh no. Please don’t. I beg you to stop. Please don’t stop publishers from releasing violent vacuous gunk year after year. No. Please stop. Please don’t make publishers encourage games like Banjo Kazooie Nuts and Bolts or Okami or Braid or Loco Roco or Katamari or World of Goo or Zelda or Super Mario Galaxy or Sly Cooper or Professor Layton or Dragon Quest or Chibi Robo or A Tale in the Desert. No. Please have mercy. Please don’t discourage every single developer from making a grey corridor fps or third person cover based shooter year on year. No. Please. Don’t make developers rely on good writing and meaningful characters to gain a mature audience with games like Grim Fandango, Deus Ex or The Longest Journey. Please don’t force those innocent godly game stores to abide to the existing law. No. I beg you. Stop.

    • TCM says:

      Family friendly isn’t bad, however, lack of ability to put more adult concepts and themes in games is terrible.

      (Deus Ex would be banned under this law, due to including shooting of humans)

    • Bhazor says:

      No it would be banned from being sold to minors.
      You know. The law. The law that already exists and is not actually enforced by many shops.

    • laikapants says:

      @Bhazor: Er, unless you can provide evidence as to such, there is no current law regulating the sale of games in the US. The Don’t Sell M Rated (and above) Games to Minors thing is a generally accepted thing by retail stores attempting to not be bothered by special interest groups like the ones that are pushing for this law.

    • Bhazor says:

      Yeah my mistake. I thought ERSB was legally backed in the same way movie classifications are. But in fact its self regulating which is probably why Walmart and the rest don’t bother following it. But my point still stands. This is just punishing companies who refuse to adhere to the existing industry standard.

      I’d also say it puts more responsibility on parents in that they’re the ones who will need to buy the game for their children. They’re the ones reading the box description in the checkout line and deciding whether the game is too extreme for their kid.

    • JK says:

      The MPAA movie classifications are not backed by legal authority either. It’s an industry self-policing mechanism, and they’re legally voluntary.

  32. deejayem says:

    I’m still not sure I buy this argument that banning sales of a product to minors constitutes censorship. Sure, a liberal society should be one in which the rights of responsible individuals are restricted as little as possible, but it seems to me pretty universally accepted that children are not fully responsible individuals. Otherwise we’d let them drive, drink, vote, etc. Actually, voting is a very good example – liberal democracies are built on universal suffrage, and yet this is widely regarded as perfectly compatible with a minimum voting age.

    I agree there are problems with this law as it stands – if you want a UK-style system of legally mandated age restrictions, you need a UK-style independent classification board rather than politicised local authority, which I don’t think many US citizens would tolerate; and singling out video games as a cultural form is absurd – but the free speech argument seems a little selective to me.

    Anyone interested in this, incidentally, should really check out the rulings of the BBFC, all of which are freely available and many of which are utterly fascinating.

    • arccos says:

      As far as the first issue, the government having control over what ideas any group of the populace have access to is a form of censorship, whether its restricting children, immigrants, or Democrats. Children don’t have any less right to freedom of speech than adults in the US, in theory. That’s not to say some forms of censorship are not justified, which some people believe.

      Drugs and alcohol are not really free speech issues, so to me they’re a separate issue.

      In theory, children would have the right to vote in the US, except for Amendment 26 of the Constitution, which restricts federal voting to 18+. Without that restriction, it could be argued children could vote.

      There is no amendment permitting censorship of any kind. Why the government could restrict pornography and obscenity was always a head scratcher to me, especially without any sort of accurate test as to what would be pornographic or obscene.

      One of the problems with targeting games specifically is that its restricting a particular medium of speech, rather than the content of the speech itself. This seems to be the biggest sticking point with the court, and why the law will probably be struck down. If the law was talking about all extremely violent content in any medium, it might just pass muster.

      But I do agree with most of your points. Free speech isn’t really the issue the defense should be using here, although with a more inclusive law that would be the defense.

  33. K says:


    What, I’m the first to make that joke? Yeah!

  34. Sam C. says:

    I just want to understand how they visualize these games. It sounds like the only experience with video games that Chief Just Roberts and probably a few others have is reading the descriptions of the games from the briefs, maybe a video compilation of the worst bits of Postal 2 without context, and what they’ve heard from other people. Just going from that, I could see how you have a pretty low opinion of video games. If they’re that uninformed about video games, I shudder to think how little they know about anything outside the legal sphere when taking into consideration what is asked of them. But I don’t know that I could do a better job, it would be impossible to have practical experience with everything that comes before the court. And that’s slightly troubling.

    The problem with this California law is it tries to treat certain violent video games as obscene. And right now the law is just not selling the games to minors, but by being classified as obscene, it opens the doors to all sorts of possible regulation. The California law defines the video games that could not be sold to minors as “where a reasonable person would find that the violent content appeals to a deviant or morbid interest of minors, is patently offensive to prevailing
    community standards as to what is suitable for minors, and causes the game as a whole to lack
    serious literary, artistic, political, or scientific value for minors.”

    The obtuseness of the arguments seems to be imposed by having to cite precedents in order to have a legal grounding.

    • Neil says:

      It’s entirely reasonable for the Court to look at the worst-case scenarios in either direction (Postal 2, regulation of fairy tales and Bugs Bunny). In fact, they’d be remiss if they didn’t.

      I don’t think any of the conservative wing will come down in favor of the law. The quote by Roberts above may suggest that he is open to a more narrowly targeted law, but if you read the entire transcript, not just what is quoted by Alec, you’ll see that he is pretty skeptical.

      Breyer seems to be the only likely vote in support.

    • Sam C. says:

      I did read the transcript. Justice Breyer seems very concerned about baby torturing games. And Roberts doesn’t seem that skeptical, he had some pretty pointed questions for Mr. Smith, for example: “So your position is that the First Amendment does not, cannot, no matter what type of law, whether this one is vague or not, that the State legislature cannot pass a law that says you may not sell to a 10-year-old a video in which they set schoolgirls on fire.”

      But this is one of my favorite bits:

      MR. SMITH: Well, the events in a video game — what happens in the plot is a combination of what the game gives you and what the player adds to it. There is a creative aspect coming at it from the other side. It’s often referred to as a dialogue between the player and the game. I would submit that both are completely protected by the First Amendment. Just as a person-

      The child is speaking to the game?

      I guess he’s just being a smart ass, but still.

    • Neil says:

      Roberts was only doing the heavy lifting on the questioning of the ESA lawyer because Breyer, the only Justice putting in much effort on this side, was doing a poor job.

      My guess is that the law will be struck down 8-1, but that there will be multiple majority opinions: some favoring no violence-based laws (possibly with some “harm” keyword exception) and some favoring narrower, more explicit laws to be allowed.

  35. Heliocentric says:

    Unless this law makes it illegal for me to buy little timmy murder simulator 4 how does this law target parental responseability.

  36. PaulOHara says:

    I’ll agree with what generally has been said. The justices know what the hell they’re doing, that’s for sure!

  37. Rick says:

    Ah, good old Antonin Scalia. I remember reading about his entertaining shenanigans back in A-level politics.

  38. dethtoll says:

    I’m so proud of my Supremes. <3

    Well, except Roberts, what the hell man?

  39. Elusive Pastry says:

    I don’t get Repulicans. They scream and shout about hating Big Government, and yet here they are demanding government censorship.

    • adonf says:

      They also call themselves ‘pro-life’ while supporting the death penalty. Go figure…

    • TCM says:

      Ah, sweeping generalizations. Perhaps the primary reason why extremism has taken root in our media.

    • Clovis says:

      This isn’t a Republican vs. Democrats issue. We currently have little stickers on CDs informing the buyer that their is explicit material on them. That was a compromise to an attempt to censor music. That whole process was leds by the Dems and spearheaded by Al Gore’s wife. Democrats have always been just as happy as Republicans to create various forms of censorship.

    • dethtoll says:

      You forget, Democrats hate fun too.

    • bob_d says:

      Sadly, censorship is a bipartisan issue (although conservative censors do have more categories of content that they feel should be banned and are more likely to protest that content be removed completely from public view). Republicans aren’t against “big government” either, actually. Although the party has kept that sentiment as a talking point, the biggest increases in the size and power of the federal government have been under Republican rule.

    • Neil says:

      The law in question was written by a far-left Democrat and approved by a left-wing, Democrat Legislature. Virtually all of the opposition came from Republicans (their propensity to side with corporations must have overridden their deep hatred of free speech). The Republican governor who signed it into law is for all intents and purposes a moderate Democrat.

    • HerpDerp says:

      You are ALL idiots. Republicans are absolutely pro-free speech in the US, unless it’s sexual crap, and that is beginning to go away as well due to the libertarian resurgence in the party. Please start edycating yourselves, the Democrats are not more free than the Republicans by any means.
      Anyway, it seems, especially among the coward Europeans here, that most of you are ok with government control, that a bunch of old white men are better at telling you how to live your life than you are, and that our Constitution is silly. For that, I am thankful we have the 2nd Amendment, because then at least we can shoot people like you if we need to.

    • Elusive Pastry says:

      Obvious troll is obvious.

  40. panther says:

    Wait did I read that correctly, Arnie, the quintessential violent movie actor is against violent video games?


  41. Vodka & Cookies says:

    Off topic that is a great image of Judge Dread almost like the character style in the game Brink. They should totally do a 2000 AD DLC costume pack.

  42. nate says:

    Kennedy and Scalia agree… so minimum 5/4 decision in favor of gamers. Hilarious trial discussion though.

  43. Nick says:

    Is it really that important? I mean, I’m not saying a 5 year old should be playing Resident Evil 4, but I and pretty much everyone I knew at the time was watching 18 rated action films (and some of them horror films, but I was too scared of those when I was younger) from the age of about 11 onwards.

  44. Davie says:

    Well, it’s good to know the judges are skeptical about all this. Their arguments hols a lot more water than Morazzini’s. But if the bill passes because someone thought all video games were Postal 2, I might just have a stroke. Running With Scissors pretty much trolled the entire industry and its opposition when Postal 2 came out, and it really pisses me off that it’s still an issue seven years later.

    Oh, also, all obscenity and stupidity aside, it wasn’t even entertaining, it was just a bad game. With no redeeming features whatsoever.

  45. Olivaw says:

    Man, our Supreme Court Justices are pretty fuckin’ awesome.

    Take THAT, dude who wants to pass off parental responsibility! Zing!

  46. Froibo says:

    I’m an American and when I tried to buy the orange box a few years ago the person at the register at Best Buy refused to sell it to me without seeing my ID first so I had to go back home. Later that day I bought a case of beer without being carded.

  47. babo says:

    postal 2 is a great game still to this day. it was pc only though and most kids play consoles now. postal will be will a dumbed down version of postal 2 to accomidate the hyper sensitive, which sucks. postal 2 wasn’t even as vicious as it should have been. fuck your censorship government america, pigs.

  48. Anthony Damiani says:

    “Much as it’s enormously important to ensure kids don’t have easy access to games with violent or saucy content”

    No, it isn’t, and saying this sort of thing is actively misleading and harmful.

    I played plenty of Street Fighter as a kid. It’s a fighting game, it’s nothing but violence. It was not inappropriate for me to do so.

    Are there games I’m not comfortable with kids playing? Sure. But I don’t actually believe it’s “enormously important” to shield children from all forms of faux-violence.

  49. Largemarge says:

    Sorry for th long post. First off, the way the Supreme Court has interpreted the “freedom of speech” clause in the First Amendment has changed a great deal over the years, leaving quite a body of caselaw. This must look crazy to non-lawyers and people who are not accustomed to the American legal system (which is completely different from European systems — completely!).

    This case is a big deal because the California law would criminalize the sale of violent games to minors. Potentially this means that someone could go to jail for selling a game that a government agency has deemed too violent for children. There are many slippery slopes here: if this law is acceptable, perhaps California could also ban the sale of violent movies/pictures/books/music/t-shirts to minors. Perhaps California could regulate second party sales (where the store knows that an adult is giving the forbidden item to a minor). You get the picture.

    The federal constitution generally gives speech and other forms of expression very high protection, but there are exceptions to what is considered “speech” — for example, obscene material, “fighting words,” shouting “fire” in a crowded theater, etc. There have been a number of “speech” cases in the last ten years that may affect the outcome of this case: 1) in the “Bong Hits for Jesus” case, the court held that a kid could be suspended from school for displaying an “inappropriate” banner during the Olympic Torch rally; 2) in the “dog-fight video” case, the court ruled that violent videos could be sold because depictions of violence are intended to be protected by the First Amendement (note: this case did not raise the issue of children viewing the violent videos); and 3) the upcoming “god hates fags” case, where a lower court prevented a group from protesting at military funerals with “inappropriate” signs.

    I fully expect the court to find this law unconstitutional because it looks like Justice Scalia (the strict constructionist conservative) is aligned with Ginsberg, Sotomayor, and Kagan (more traditional liberals), and Kennedy (a moderate who is the court’s swing vote). The justices don’t give a rat’s ass about corporate bottom lines or about Repubs/Dems — they really don’t. If the court holds the California law unconstitutional, similar laws will be unconstitutional in all 50 states.

    If they uphold the law, you can expect additional litigation from other states, potentially about other subjects like music or movies. Another wrinkle is that each state has its own constitution, and most (all?) have a state freedom of expression clause.

    If you think this is complicated, you should see the cases about the other half of the First Amendment, the “establishment” of religion clause.

  50. Jad says:

    Look its pretty simple; in the United States you have two categories:

    Category A

    Category B

    Quiz: Which category do videogames belong in?

    Currently they are in Category A, which are creative expressive works, considered to have intrinsic artistic merit, which are voluntarily rated by industry-instituted boards, completely independent of the government. These ratings are voluntarily followed by most retailers who do not sell adult- or mature-rated products to children. There is no law requiring them to do this, however. There has been lots of debate about this for years for every creative medium (music was the target in the 80’s), and every creative medium has successfully repelled attempts to be put in Category B.

    Because Category B are products that are illegal to sell to children, with major fines or criminal charges attached. These are in this category because they have been decided to either not be creative, artistic expressive works in the case of pornography, or in the case of the rest, uniquely dangerous to children.

    So, again: which category do videogames belong in?

    Because this law proposes that they should be in Category B.

    • Bob and his dog says:

      you could argue that everything in group B, except pornography, is dangerous to the population at large.