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Victory! US Politicians Fail To Outlaw Games

The Supreme Court saves videogames

Featured post 'Sup, court?

Enormously important news from the US just moments ago. Don your most gaudily-coloured party hat – after six long years, the Supreme Court has overturned a Californian ruling which banned the sale of games to minors… and essentially held that violent games were obscene publications.

In the case of Brown v. Entertainment Merchants Association, colloquially known as ‘the Schwarzenegger law’ due to Herr Arnie’s major role in bringing about a State-wide ban on the sale or rental of violent games to minors, the Supreme Court ruled 7 to 2 that the ban contravened the First Amendment, which concerns freedom of speech. Yep: games are now officially protected in the same way art and literature is. The entire games industry just breathed a sigh of relief.

The understandable reaction of some is “well duh, of course kids shouldn’t be sold violent games”, but the terrible thing about the Arnie Act is the lack of distinction. Violence was violence was violence, as far as the California law reckoned, and kids getting hold of violent games would surely cause untold mental damage to them.

Again – fair enough to some degree, though of course it doesn’t engage with any real science or psychology, and instead merely a fear. But the thing is that pretty much no other medium, save porn, is subject to the same restrictions in the US. The Arnie Act (actually written by Californian senator and long-time anti-game lobbyist Leland Yee, but signed off and endorsed by the Governator) put games in a category of their own – and a category essentially marked ‘dangerous.’ It also dismissed the fact that the games industry – from publishers to retailers – is self-policing, with its own pretty strictly enforced rating system. Why was this law needed, given that? And why aren’t violent movies subject to the same restrictions?

Essentially, this was an attempt to outlaw a huge number (and perhaps even the majority) of videogames in in the States, as while adults would still have been able to buy them they wouldn’t have been stocked in major retailers, thus harming their sales enormously and in turn dissuading game companies from making adult games.

While the broader argument about and need to keep games for grown-ups out of kids’ hands remains and must not be ignored, had the California law remained (and, God forbid, gone nationwide), games would have been treated by retailers as equivalent to porn. It was also a huge vote of no-confidence in the games industry, dismissing as it did its own rating system. Really, this was an attempt to censor games. As Ars’ Ben Kuchera observed on Twitter – if books were subject to the same restriction, the Bible would also be banned from sale to children.

Oh – and it’s also worth noting that one of the major factors in bringing California’s ban about in the first place was the Hot Coffee mod for Grand Theft Auto: San Andreas. Yep – one game’s deleted, clothed sex scenes you had to download a third-party mod to access almost got any and all grown-up games banned from sale.

More broadly, the Californian law was predicated on a claim that violent games had harmful or dangerous effects on minors that other mediums – such as movies, comics and Tom & Jerry cartoons – did not. The Supreme Court, God love ’em, saw the folly in this argument. It’s the same dance that almost every form of popular entertainment has had to go through in the past – from radio plays to horror movies, the battle has been to show that fearful types’ claims that they led to real-life violence was unfounded. Today, games won. They’re now accorded the same status as everything else.

Here’s one of the many money quotes in the judgement that overturned California’s stupid law:

This country has no tradition of specially restricting children’s access to depictions of violence. And California’s claim that “interactive” video games present special problems, in that the player participates in the violent action on screen and determines its outcome, is unpersuasive.

Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively. Any demonstrated effects are both small and indistinguishable from effects produced by other media. Since California has declined to restrict those other media, e.g., Saturday morning cartoons, its video-game regulation is wildly underinclusive, raising serious doubts about whether the State is pursuing the interest it invokes or is instead disfavoring a particular speaker or viewpoint.

It’s worth reading the whole thing (warning: PDF), which is quietly very scathing of California’s failed attempt to outlaw violent games, but the take-home message is this: after six years of trials, retrials and endless arguments and dis-ingenuity, games have now officially been accorded the same Constitutionally-protected status as movies, books, plays and all the rest. There’s so much more to be done, on both sides of the fence, in terms of making the world at large (and especially politicians) take games seriously, but suffice to say today is a very good day.

I like this line too:

“Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy,and restrictions upon them must survive strict scrutiny”

It seems absurd that was ever in question, but that’s politicians for you. Also mentioned are Lord of the Flies (kids killing kids),, the Odyssey (blinding a Cyclops with a flaming stake) and Grimm’s Fairy Tales (Hansel and Gretel baking a witch to death): if these are OK for kids to access, why are games so different? Yes, there is an argument to be made about whether games’ interactivity, studies are needed and ratings systems must be enforced – but a knee-jerk ban was never the way to do it, and would mean blindly censorious forces had won the day outright. Our proudest salutes must be offered to the EMA, ESA and ECA for their sterling work in fighting the good legal fight.

So here’s the final line: “the act forbidding sale or rental of violent games to minors does not comport with the 1st Amendment.” Take your nasty, poorly-researched arguments and get out of here, Messrs Yee, Schwarzenegger et al. And start selling games in California again. It’s the law, you know.

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Alec Meer

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Co-founder of RPS. Dungeon Keeper & X-COM 4 Life.

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