Overturning the Ban: The Supreme Court and Video Games
This week, the United States Supreme Court decided to hear the case of the California law that bans the sale of violent video games to those under the age of 18. The law would essentially take California's obscenity laws that were made in the 60s to stop the sale of pornography to minors, and extend them onto the subject of violence and sex in video games.
The law tries to be specific in restricting games that depict "killing, maiming, dismembering or sexually assaulting an image of a human being" in a way that a reasonable person would say appeals to a "deviant or morbid interest," is patently offensive, and lacks "serious literary, artistic, political, or scientific value for minors." Of course, plenty of R-rated movies arguably could fail this standard, and it's not illegal for those to be sold to a minor. Oh sure, a non-governmental body called the MPAA rates movies and restricts those sales by using contracts and fines - which is similar to what the ESRB does with video games - but violating the rules are not a crime with either organization. Not only would this law make the sale of violent games to a minor a crime, but it also holds games to an entirely different set of principles than what the ESRB has set up. Why do video games get held to a higher standard?
There's been some obvious demonizing of violent games in the past. Many, many people still believe that any gamer that goes on a violent rampage was pretty much fine until the video games came along, and they ignore the evidence of severe psychosis or other problems - and forget that a majority of perfectly-fine teenagers have already seen violent games in one form or another. Of course, they've also seen movies like Hostel or shows with other borderline (or full-on) adult content, but no one blames those.
One problem is that adults who didn't grow up playing video games still don't (and might never) understand that video games are not just made for children anymore. We've probably all heard an elder say that video games are a child's toy and that adults shouldn't be playing them. They see video games as a more expensive version of a GI Joe or a set of LEGO bricks. Well, most of the people creating and applying laws fall into that age group.
Frankly, there are simply too many people in positions of power that don't understand the effect that video games have had on those of us who grew up with them. Now we make a hobby out of them, and some of us make a serious business out of making, publishing, and writing about them. Most video games are made by adults for adults. Maybe it's unreasonable to expect people who didn't grow up with them to actually understand.
No one political party or movement can be blamed, either. The attack on video games as a legitimate form of expression, entertainment, and culture is coming from all sides of the left-right spectrum, and has been visited and revisited for the last fifteen-plus years - starting with Mortal Kombat. Democrats Hilary Clinton, Evan Bayh, and Tim Johnson have taken on the mantle in the past, as well as independent Joe Lieberman. The California law in question was proposed by Democratic California senator Leland Yee, who recently said to the LA Times that he thinks video games are an art form that deserve protection under the first amendment, but then says he doesn't play them. Plus, keep in mind that he's also still favoring having video games that may have no sex or nudity - and just as much violence as an R-rated movie - possibly deemed pornographic and restricted under obscenity laws.
We're seeing the right push towards harder regulation of video games as well - several right-wing lawmakers have brought their own versions of laws or have spoken against violent games, and Republican governor of California, Arnold Schwarzenegger (who himself has had his likeness used in violent games) supports the law. He's the one that filed the appeal that started the process of bringing this case to the US Supreme Court. He's gone on the record about it, saying that "we have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies." Of course, governments nationwide pretty much just defer to the MPAA ratings board for movies, and the double standard here is that they don't want to defer to the ESRB for video games.
It's hard to predict what the Supreme Court will do in this case, but based on the unpredictability of their decisions in the last couple of years and the comparatively low influence of the game industry in Washington, I think it's very possible that the original appellate court decision will be overturned and this law will go into effect in California. Even if you don't live in California, this law will still likely apply to you, because it sets up a nationwide legal precedent that will allow more states or counties to enact similar laws. It's been tough to get these laws passed so far because it takes a lot of political capital to get a law like this onto a legislative floor (and then federal courts so far have struck them all down), but if a legal precedent allowing these laws is passed down by the Supreme Court, the hardest of the fight will come pre-fought and these laws may start spreading quickly.
Others will say, "but I'm over 18 so this law won't effect me; why should I care?" Well, games that are rated "E for Everyone" probably won't change. M-rated titles aren't likely to change in content too much, but publishers may be less willing to make them depending on the possible loss of sales, especially if any major retailers just back out of selling these restricted games entirely (which is possible, considering it'd technically be the same classification as pornography). And still another problem comes with those Teen-rated games that do include mild violence and/or blood. Adult or not, that might include games you play now. How about Prince of Persia? UFC Undisputed? Star Wars? Street Fighter or even most fighting or hand-to-hand combat games? If there's a judge or panel that's prudish enough, they could apply the law to any of these games by saying they depict "maiming an image of a human" and could then easily go on to say they appeal to "deviant interests" and offer no artistic value.
With such vague wording in this law, it's tough to get behind its nebulous phrases like "deviant interests" or its requirement for an appointed bureaucrat, not an elected judge or a jury of peers, to apply the law using his or her biases and opinions. Some sort of board will have to be put together to rate pretty much every game sold at retail in California (which means just about every game sold in the United States). Even if you generally agree that restriction on the sale of violent games is right, having value judgments coming from people with no built-in oversight is not the way to go. How reasonable will those people be? What will their standards be? Will they actually play the games, or will they get highlight reels of the worst stuff from the publisher, like the ESRB does now? The members assigned to such a board would be appointed by people who likely supported or created this law in the first place, and those lawmakers might pick people that are tough on games or simply don't even understand them. As we've already seen with Roger Ebert, some very reasonable and well-connected people don't believe games can possibly have artistic merit, so in their eyes the last part of the law's requirement ("artistic value for minors") would never actually be fulfilled.
Unfortunately, this whole thing is out of our hands now. While writing letters and emails to lawmakers may have some small effect, the Supreme Court is largely insular and are not often swayed by letter-writing campaigns. We can only hope that the Court decides on the side of reason and applies a fair standard of obscenity laws.
