An interesting Kotaku read concerning violent video games.

[Critter]

http://kotaku.com/5815431/mondays-expected-supreme-court-decision-will-tell-america-how-much-free-speech-protection-video-games-deserve

Monday’s Expected Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games Deserve

Avatar for Stephen Totilo Stephen Totilo —Monday will be a day that could radically change the status of video games in the United States. We're expecting the Supreme Court of the United States to finally issue a ruling, based on arguments they (and we) heard back in November, about whether the state of California can make it a crime to sell extremely violent video games to children.

The case is now called Brown vs. EMA, (formerly, Schwarzenegger vs. EMA) and involves California's attempt to enforce a law written by State Senator Leland Yee, a Democrat representing San Francisco, in 2005 that would criminalize the sale of hyper-violent games to kids (not all M-rated games, per se, but only certain types, as defined in the law.) The law would require new labeling on games sold in California and carry a $1,000 fine to those found in violation of the law.

If the Court rules for California, it will be overturning a half decade's worth of decisions in lower courts that said that California's law violated the First Amendment protections of the freedom of speech.
Monday's Expected Supreme Court Decision Will Tell America How Much Free Speech Protection Video Games DeserveState senator Leland Yee (D-Calif.) on the steps of the Supreme Court on Nov. 2, 2010, the day of oral arguments. (Photo: Kotaku)

If the Court rules against California, it could still direct the state on how to write a law that would criminalize the sale of games to kids without violating the Constitution. But a complete ruling against the state would be the biggest win yet for the gaming industry's ongoing battles against mostly Democratic governors and legislators who have argued that violent video games are harmful to kids in ways that violent movies and music are not.

A win for California would separate video games from music, movies, books and all other forms of entertainment in the United States. While music, movies or books that are considered sexually obscene are illegal for everyone in the U.S., only certain types of non-obscene sexual content can be made illegal for minors on a state-by-state basis (states can and do make it a crime to sell dirty magazines to kids, for example). No other medium is subject to a legal check on extremely violent content in the U.S., so the criminalization of selling hyper-violent video games to kids would be a first for any form of entertainment in America. A movie theater might be breaking its own rules if it sells a ticket for an R-rated movie to a minor, but it's not breaking the law. In theory, selling a copy of Postal 2 to a kid would become a crime.

The video game industry, led by the ESA, or Entertainment Software Association—a lobbying group funded by big game publishers that also runs E3 each year—has argued that games should be treated like other forms of entertainment. California has argued that games, because they are interactive, have a unique ability to agitate a child's mind and potentially spark aggressive behavior in the child.

California contends that, should it win, children will be safer. The gaming industry's chief advocates contend that speech will be chilled and that retailers and game creators will be compelled to react by selling and producing less edgy content.

We're expecting a decision shortly after 10 a.m. EDT on Monday. Expect full coverage of the decision here on Kotaku.

To read more about the case, check out our prior coverage, including a blow-by-blow of California and the gaming industry's arguments to the Supreme Court as well as highlights of the most contention parts of those arguments, as the justices hit both sides with some hard questions.

We also have a primer that explains the law, the players involved and the half-decade of history about this battle that the gaming industry, so far, has been winning across the country.

Nine people will decide how video games fit into America's First Amendment. Is the violent video game on store shelves near you the equivalent of a bloody-minded novel or a copy of Hustler? We expect to find out on Monday.

[The Winslow]

While music, movies or books that are considered sexually obscene are illegal for everyone in the U.S.

What, really? Pornography is illegal in the U.S.? Or is it considered not obscene instead? And how come whenever the subject of something like hate speech which is banned in some countries come up, Americans always proudly point out how with their mighty first amendment they don't have any censorship at all; if again there is a whole category of music, movies and books that are "illegal for everyone in the U.S." ?

Doesn't make sense. Methinks Kotaku should check their facts a bit better.

[Hatter]

Obscenity laws in the US are stupid and inconsistent. They are based around the 'Miller Test' which states:


The Miller test was developed in the 1973 case Miller v. California.[2] It has three parts:

Whether "the average person, applying contemporary community standards", would find that the work, taken as a whole, appeals to the prurient interest,
Whether the work depicts/describes, in a patently offensive way, sexual conduct specifically defined by applicable state law,
Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.[3]

The work is considered obscene only if all three conditions are satisfied.

[Name Lips]

Isn't the question whether it should be legal or illegal to sell extremely violent video games to minors?

Why is it being seen as a freedom of speech issue? They're not proposing banning the games, or forbidding them from being made, are they? Just putting them in the same sort of category as cigarettes, alcohol, and pornography.

[Varaj]

What, really? Pornography is illegal in the U.S.? Or is it considered not obscene instead? And how come whenever the subject of something like hate speech which is banned in some countries come up, Americans always proudly point out how with their mighty first amendment they don't have any censorship at all; if again there is a whole category of music, movies and books that are "illegal for everyone in the U.S." ?

Doesn't make sense. Methinks Kotaku should check their facts a bit better.

As a general rule about the only thing that sticks as obscene in the US is child pornography. Even bestiality fails most of the time.

[Lucita]

Why is it being seen as a freedom of speech issue?

Probably because of:

A win for California would separate video games from music, movies, books and all other forms of entertainment in the United States.

Here's (http://www.escapistmagazine.com/videos/view/extra-credits/1961-Free-Speech) a perspective on the case (and another one (http://www.escapistmagazine.com/videos/view/extra-credits/2414-Facing-Controversy)).

(Incidentally, I feel Extra Credits is an excellent series and if you're interested in the industry and future of games at all, it's worth a look)

[The Winslow]

So, if anybody wondered about this and was too lazy to google the outcome, games won (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Fkotaku.com%2F57954 72%2Fvideo-games-defeat-california-in-supreme-court-battle-over-violent-video-games). They're still legally an artistic medium like music, literature and cinema.
First Amendment Trumps California in Supreme Court Battle Over Violent Video Games

Stephen Totilo

The Supreme Court sided with the video game industry today, declaring a victor in the six-year legal match between the industry and the California lawmakers who wanted to make it a crime for anyone in the state to sell extremely violent games to kids.
In a 7-2 ruling Justice Antonin Scalia said the law does not comport with the First Amendment. He was joined by Samuel Alito and Chief Justice John Roberts, who had seemed sympathetic to California's concerns last year. Justices Clarence Thomas and Stephen Breyer, traditionally members of the court's right and left wings, respectively, joined in dissent. [Read the full decision (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Fedge-cache.kotaku.com%2Fkotaku%2Fpdf%2F08-1448.pdf) - PDF link.]
This story will be updated throughout the day .
The case was The State of California vs. The Entertainment Merchants Association and the Entertainment Software Association. That last party, the ESA, is the gaming industry. The trade group puts on the annual E3 video game showcase, the gaming business' biggest news event each year. The ESA's lawyers argued against (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Fkotaku.com%2F%23%2 5215678903%2Fsupreme-court-pushes-hard-against-california-video-game-law) the state of California's on Election Day last year, trying to convince the court that video games deserve the same breadth of First Amendment protections as books and movies. The decision, revealed today, was the first time the Supreme Court has weighed in on video games in any fashion.
The law in question would have made it a crime to sell ultra-violent video games to minors in the State of California. It had been ruled un-Constitutional by lower courts.
"The basic principles of freedom of speech . . . do not vary' with a new and different communication medium," Scalia wrote in the Court's opinion, citing an earlier speech case.
Writing for a plurality of justices, Scalia said California's arguments "would fare better if there were a longstanding tradition in this country of specially restricting children's access to depictions of violence, but there is none." He cited numerous examples of violence in literature. "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional."
Scalia also shot down California's arguments that video games were different enough from books to require a First Amendment exception. "As Judge Posner has observed, all literature is interactive. '[T]he better it is, the more interactive.'" He called California's scientific evidence that violent video games can hurt kids "not compelling."
He denied a state need for a law, given that, he argued parents may not all agree that their kids need protection from violent video games. He cited studies of the current video game ratings systems and said they have been shown effective enough to work. "Filling the remaining modest gap in concerned-parents' control can hardly be a compelling state interest."


Justices Roberts and Alito decide with the majority but presented a very different argument. Alito denied the Court's opinion, as written by Scalia, that found no notable distinction between video games and other forms of entertainment. He expressed alarm about the potential potency of future video games: "If the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence."
Leery as he was about video game content, Alito, with Roberts, said the California law was simply too vague in its descriptions of the type of violence which would make a game sold to minors illegal. Standards against sexual content were more specific and grounded in cultural traditions to prohibit children's access to such content.
The Courts' two dissenters sided with California for two distinct reasons. Justice Clarence Thomas focused on his researched understanding that the frames of the United States Constitution did not believe children enjoyed the same access to Free Speech as adults. "The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children." As a result, he said, the California law restricting the sale of gams to minors was within Constitutional bounds.
Justice Breyer focused on the possible double standard between sex and violence. While the Court has upheld States' ability to restrict the sale of certain types of sexual content to children, it is saying with its decision that it is okay to give children access to violent games—violent games, he noted, that even the game industry rates in a way to restrict from kids. "What sense does it make to forbid selling to a 13-year-old boy a magazine with an
image of a nude woman, while protecting a sale to that 13* year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restrict-ing sales of that extremely violent video game only when the woman-bound, gagged, tortured, and killed-is also topless?"
The video game industry rejoiced at the decision. "This is a historic and complete win for the First Amendment and the creative freedom of artists and storytellers everywhere," said Michael Gallagher, head of the Entertainment Software Association. "Today, the Supreme Court affirmed what we have always known – that free speech protections apply every bit as much to video games as they do to other forms of creative expression like books, movies and music."
The California bill's author, Leland Yee, told reporters today he was very disappointed. The Supreme Court has "decided that it is going to side with corporate America and Wal-Mart against our children," he said.
The debate about video games' effect on kids has raged since the '80s and intensified in the '90s with the creation of Doom and a spate of school shootings. After the turn of the century, states across America, including Illinois and Michigan, attempted to criminalize the sale of violent video games to minors. But each of these laws, usually promoted by Democrats, was found by the lower courts to violate the First Amendment, running afoul of the country's Constitutional protection for free speech. California's attempt to criminalize violent games got further than others. The law was written by California assemblyman and child psychologist Leland Yee and signed into law by then-governor Arnold Schwarzenegger. [Read California's law. (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Finfo.sen.ca.gov%2F pub%2F05-06%2Fbill%2Fasm%2Fab_1151-1200%2Fab_1179_bill_20051007_chaptered.html)]
Yee's law borrowed the language of the Miller Test, a set of criteria established by the Supreme Court in 1973 for determining if forms of speech are obscene and therefore not protected by the First Amendment. Short of establishing a class of obscene video games that would be illegal for any American, Yee's law would build on the Supreme Court precedent for allowing states to make the sale of certain kinds of pornographic content—adult magazines, for example—illegal when sold to children, while remaining legal if sold to adults.
Games violating Yee's law would be any that: (A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
Despite the support of the legislature and then-governor Schwarzenegger, the California law was nevertheless ruled unconstitutional by courts in California. Last year, however, the Supreme Court agreed to hear California's appeal, the state's final attempt to get their law through.
[Read our cheat sheet about the back-and-forth between California and the gaming industry (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Fkotaku.com%2F%23%2 5215678354%2Fall-you-need-to-know-about-this-weeks-violent-video-game-case-in-the-us-supreme-court).]
The stakes for the video game medium were high when oral arguments began on the case in the fall of 2010. A court decision in favor of California would separate video games from books, music, movies and all other forms of entertainment for which there is no criminal penalty tied to the selling of extreme non-obscene content to kids. (It is legal, for example, to sell a ticket to an R-rated movie to a child; it simply violates the movie industry's internal rules). Yee and California's legal team had argued that the interactive nature of video games necessitated that the medium be treated differently and with a greater awareness of a potential to harm kids.
"This is not about Leland Yee trying to prevent any of you game [developers] from developing any more atrocious kinds of games," Yee told Kotaku (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Fkotaku.com%2F%23%2 5215524961%2Fviolent-video-game-supreme-court-case-raises-stakes-in-america-sides-sound-off) last year. "This is a free society. If you have the imagination to do something even more horrible with the technology, then God bless you. That's part of our freedom of expression here in America, but you just have to figure out when it's appropriate and when it's not appropriate. For me, as a child psychologist you ought not be doing it for kids."
On the other hand, Michael Gallagher, speaking on behalf of the gaming industry, said last year, "We've successfully argued this case in 12 other courts that these types of laws are unconstitutional and that video games should be treated just like movies, music and other forms of entertainment."
The nine Supreme Court justices did not tip their hands during oral arguments. They fired skeptical questions at both sides (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Fkotaku.com%2F%23%2 5215678903%2Fsupreme-court-pushes-hard-against-california-video-game-law), though they failed to fall into the conventional left-right splits. Conservative justice Antonin Scalia grilled California's lawyer about a slippery slope that would lead to the criminalizing of Grimm's Fairy Tales, while left-leaning Elana Kagan wondered if a game her clerks played, Mortal Kombat, would run afoul of the law. Conservative chief justice John Roberts rattled off a description of the game Postal and said there's an American tradition to protect children from content like that, while left-leaning Stephen Breyer wondered why it wasn't "common sense" for the state to require that parents be the ones buying those games, should a kid wind up with one. [Read key excerpts of those and other colorful exchanges from the oral arguments. (http://www.kaytastrophe.com/vb/redirector.php?url=http%3A%2F%2Fkotaku.com%2F%23%2 5215679655%2Fhighlights-of-todays-big-supreme-court-video-game-case)]

[Lucita]

And the hilarious reactions (https://www.parentstv.org/PTC/news/release/2011/0627a.asp) have begun

Ruling Puts Video Game Retailers Ahead of Parents



LOS ANGELES (June 27, 2011) – Today, the Supreme Court upended a California law that would hold video game retailers accountable for selling or renting adult games to unaccompanied minor children. The Parents Television Council™ denounced today’s ruling in Brown v. Entertainment Merchants Association, but pledged to continue holding irresponsible video game retailers publicly accountable.

“When an industry trade group files a federal lawsuit to defend a child’s constitutional rights, the alarm bells should be deafening. It is hard to imagine a more cynical proposition. Sadly, today’s ruling proves the United States Supreme Court heard the video game industry loud and clear, but turned a deaf ear to concerned parents. The Court has provided children with a Constitutionally-protected end-run on parental authority,” said PTC President Tim Winter.

“This ruling replaces the authority of parents with the economic interests of the video game industry. With no fear of any consequence for violating the video game industry’s own age restriction guidelines, retailers can now openly, brazenly sell games with unspeakable violence and adult content even to the youngest of children.

“The carefully-worded California statute would not have interfered in any way with the rights of the creators of adult games or the adults who wish to buy them; and in fact, it would not interfere with parents who wanted to purchase such a game for their children. Rather, the measure only would have prevented an unaccompanied minor child from buying or renting the product.

“Countless independent studies confirm what most parents instinctively know to be true: repeated exposure to violent video games has a harmful and long-term effect on children. Despite these troubling findings, video game manufacturers have fought tooth and nail for the ‘right’ to line their pockets at the expense of America’s children. Today, the Supreme Court sided with them and against parents.

“We call on the Entertainment Merchants Association to redouble its efforts for increased enforcement of the industry’s age-based vending restrictions. The Federal Trade Commission and the PTC’s own ‘Secret Shopper’ campaigns have routinely demonstrated an abysmal failure rate for video game retailers to uphold the industry’s own age-based restrictions. With the exception of GameStop, many in the video game industry appear to be either unwilling or unable to prevent the sale of M-rated games to kids. Now with no threat of consequence for failure, we are concerned that the self-regulatory efforts will be violated in even greater numbers than they already are. We will be monitoring this very closely.

“The Parents Television Council is proud of its unwavering support for California State Senator Leland Yee’s leadership and legislative efforts to protect children. We will continue to use all the resources within our power to call out unscrupulous retailers. If the federal courts won’t stand for parents, then we hope the court of public opinion will,” Winter concluded.

Also here (http://www.pcmag.com/article2/0,2817,2387676,00.asp). I've extracted the interesting bit:

California State Sen. Leland Yee, who sponsored the original bill, said today's ruling "put the interests of corporate America before the interests of our children."

"As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids' mental health and the safety of our community," Yee continued. "It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children."

Despite the loss, Yee said he is "certain that this eight-year legislative and legal battle has raised the consciousness of this issue for many parents and grandparents, and has forced the video game industry to do a better job at appropriately rating these games."

I'm certain that taxpayer money you spent fighting this eight-year legislative and legal battle couldn't have gone to any worthier cause.

I think these deserve two Rainbow Dashes.

http://www.kaytastrophe.com/vb/attachment.php?attachmentid=16762&d=1306811364

http://img199.imageshack.us/img199/2689/130670029166.jpg

[The Winslow]

I would love to have those people who want to put the interests of children over those of corporations to move their scrutinizing eyes away from game developers and onto advertisers, traders and bankers, oil and gas companies, the chemical industry, the military industrial complex, and so on.

[Harry]

Wouldn't it be easier to pass a law that would cause any parent who knowingly allows their child to play violent and/or prurient games that the parent disapproves of to be arrested and jailed? That would give ALL the responsibility to the parents. You don't even have to worry about "community standards".

Wait a second...

“When an industry trade group files a federal lawsuit to defend a child’s constitutional rights, the alarm bells should be deafening. It is hard to imagine a more cynical proposition. Sadly, today’s ruling proves the United States Supreme Court heard the video game industry loud and clear, but turned a deaf ear to concerned parents. The Court has provided children with a Constitutionally-protected end-run on parental authority,” said PTC President Tim Winter.

I misread the ruling. Apparently the Supreme Court is REQUIRING parents to buy these games for their kids and forcing the kids to play them.