Videogames, Porn And Californian Law
The Californian law that would make selling violent videogames to children illegal is facing a hefty amount of opposition. The law was never put into effect because of challenges by the videogame industry and was deemed unconstitutional by a Californian appeals court. It is now, by the state’s request, being looked at by the US Supreme Court who will decide if it should be imposed and would set a stark precedent. For some time lobbying groups such as the Entertainment Software Association (ESA) have said that they will oppose the ban because it restricts the First Amendment: freedom of speech and expression. In a statement, the ESA said: “Courts throughout the country have ruled consistently that content-based regulation of computer and video games is unconstitutional.”
But what exactly is the opposition? I’ve been trying to figure out why videogame lobbyists seemingly don’t want to restrict children playing violent videogames. The media is often crusading against games like Modern Warfare 2 as the root of all evil, so surely just as a public relations move, preventing minors seeing violence seems like the right thing to do?
Unlike Britain, America has no unified law that prevents children from purchasing videogames that are deemed to be violent and “damaging”. Most retailers such as GameSpot already enforce a policy within stores, but a blanket law would mean that retailers in California who don’t have a policy against children buying 18+ games could face fines. This law, according to the ESA, goes against the First Amendment, meaning that it restricts freedom of expression, something which America takes pretty seriously. In some cases, such as pornography, (which is classed as obscene so can be limited) there is regulation, but the Californian legislation would try to place a limit of videogames.
The definition of a violent video game under the law is as follows:
Violent video game means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being
And under these conditions, how it can be deemed offensive:
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.
This law is essentially based on content, rather than ratings, meaning that each game has to be individually checked to see if it comes under the criteria listed above. But even if the law was based on a ratings system -that is that each game was listed as inappropriate for minors based on its ESRB rating- it would, arguably, still be unconstitutional because it limits freedom of expression. Some things, such as pornography, aren’t protected by the First Amendment and are classified as “obscene”, which is why it is regulated and minors can’t walk into a store and buy it. What’s classed as obscene was defined by the famous Miller vs California case which, along with other cases, limits obscene content to various criteria:
whether the average person, applying contemporary community standards (not national standards, as some prior tests required), would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law; and “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
Which, as you’ll notice, mirrors the violent videogame specifications listed above.
The issue is that videogames are being classed, essentially, in the same manner as pornography. Violence in movies could not be placed under laws because movies have First Amendment protection, something that was even applied to videos of animals being cruelly killed. Listing violent videogames as obscene (which by limiting their sale is effectively what this law would do) means that they would not be protected by freedom of speech and expression. If killing animals and filming it is placed under protection of the First Amendment, then surely videogames should be too?
People argue that the interactivity of videogames is what sets them apart from films and books, but they are equally forms of artistic expression and what the ESA is arguing is that they should be treated as such. Is Tom and Jerry then ‘œpatently offensive to prevailing standards in the Community’ as it shows scenes of horrific, yet make-believe, violence? The law would say no, so why is Grand Theft Auto IV any different?
This is videogames being (once again) singled out because of the usual sad old fears over the crumbling morality of society. Protecting children, to me, is a huge deal and in Britain where we don’t have such concrete constitutional laws, making it illegal makes sense. But America is (for better or worse) founded on these certain principles and for videogames to be controlled and regulated on the same level as pornography could set a dangerous standard of our past time being devalued when compared to cinema, literature and other expressive works.
The real reason isn’t anything about the First Amendment, but fewer people buying the games. Companies don’t care about protecting children, they only think about selling more games.
In my opinion this is a good thing.
Also movies and books should fall under the same restrictions and violence is worse than pornography.
Sorry but ParaParaKing, but that’s not true. If the industry cared about selling the most games period, then every game would be teen and sold on the Wii.
Fact is the law has been struck down in every court because it’s unconstitutional to restrict media based on content unless it was deemed to be obscene.
It used to be based on the case Regina v Hicklin, which stated that if an art form “depraved or corrupted the mind” it was obscene. It was later struck down and replaced with a combination of Roth v US and Miller v California, where obscenity is defined as the material’s dominant themes being offensive to the average person in a contemporary community. Which actually complicates the matter as it means something can be obscene in one community but not in another.
Point being, I can’t see anyway the court would side with California on this matter, the law is too vague (how one defines obscene violence is subjective), and the ESA and other will argue that if film, books and music can be and are protected, then games should be as well.
Of course it’s about money. Everything’s about money. The ESA has every right to protect their industry.
But if this is allowed to happen, videogames will be sectioned off and treated differently than other art forms. I agree with Abacus in that I don’t think it will get through, but even the fact that it has gotten this high up is troubling.
Coming from the point of view of a burgeoning member of the video game industry (I will begin my education in the area of video game design this september), I find laws like these threatening. Say all you want about protection and how it only restricts things like porn, that’s just a small step to a much more heavy handed bill. It wouldn’t be absurd to predict a law that would restrict games whose violence is deemed as dangerous as sex games. When that happens, and when the hammer falls, and there’s an AO rating on the thing, then most games will not sell. When that happens, I’ll be screwed. When the mass majority of games, the first person shooters, are suddenly slapped with an AO rating, nobody is gonna buy ‘em anymore. When that happens, game sales drop, and jobs get cut. That’s damn scary to me.
@Ok_Abacus: They aren’t restricting game content, they are only restricting who can buy them. This is only about the money, because AO games won’t sell.
On a different note: It is funny to me, how people are crying out for a 18+ rating in Australia, when the US doesn’t have one because ultraviolent games are okay for minors.
@ParaParaKing:
Yes, because god forbid we allow the developers who make your games to eat.
@Hawkeyed One: Of course, because violent games are the only type of games out there and every game will have to be AO.
@ParaParaKing: The majority of stores have policies against selling to minors anyway.
You’re kind of missing the point which is that the law would restrict videogames even though they’re a form of artistic expression. Of course they want to protect their financial interests, but what’s wrong with that? Making money is what they’re there to do.
The First Amendment is there to protect expression from censorship and restrictions. I agree that children need to be protected, but enforcing laws to do that is, in my opinion, unconstitutional. While that might be restrictive, it’s the foundation of America law.
@ParaParaKing:
My point is that everyone needs to eat. Of course I’m being defensive of my job. It would be like what would happen if suddenly all action movies were given the NC17 rating for “extreme violence”. You’d see a huge drop in movie sales.
@Sam “verygoodyearâ€: This law isn’t restricting videogames, it is only restricting selling it to minors. Arguing that minors should be allowed to buy them, is strange.
If the majority of stores already has policies against selling to minors not much will happen. Only the black sheep stores, who are selling to minors will be affected.
Even if the First Amendment is saying something else, I don’t have to agree with it. There is capital punishment in some of the US states and I don’t have to agree with that either.
@ParaParaKing: It would restrict videogames. It would restrict the sale of an expressive works under the law and would classify videogames as “obscene”, placing them on par with pornography.
I agree totally that minors should be protecting, in fact when I first started this article I couldn’t understand the objection. But unless you think videogames are as obscene as porn (in which case, why shouldn’t movies, books, tv, comics, radio, plays and the internet be restricted?), this law is nothing but silly.
As mentioned, animals being violently killed and filming it was protected by the First Amendment. Kinda makes videogames seem pretty innocent.
@Sam “verygoodyearâ€: In my opinion movies, books, tv, comics, radio, plays and the internet should be restricted for minors.
I feel like you’re missing the point. The problem isn’t that we want kids to play violent games, but rather the law is vague and has a poorly designed scope that literally any and all games could fall into. On top of that the SCoTUS has already said laws that restrict access to media based on content are unconstitutional unless the content is deemed to be pornographic. The only way this law could stand up in court is if the SCoTUS says violent games are akin to porn. In which case everyone is fucked. Pun intended
the law would restrict videogames even though they’re a form of artistic expression,I think movies, books, tv, comics, radio, plays and the internet should be restricted for minors