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U.S. Supreme Court To Decide If Video Games Should Continue To Qualify For Free Speech Protection

Phoenix WrightBy now we all know the rallying cry of the overprotective-yet-lazy parent and the lawmaker pandering for votes: "Won't someone please think of the children!"  Time and again, states have tried to legislate the sale of M-rated video games, and time and again such laws have been overturned at the state level.  California, however, has decided to appeal all the way to the United States Supreme Court for the ability to kick violent video games to the curb and treat them as obscene material.  Rather than potentially mangle the explanation of the issue at hand, I'll just let game developer Daniel Greenberg writing in the Washington Post get us started today:

Tuesday is the day that the court has agreed to hear Schwarzenegger v. EMA, a case in which the state of California says it has the power to regulate the sale of violent video games to minors - in essence, to strip First Amendment free speech protection from video games that "lack serious literary, artistic, political, or scientific value for minors."

Since I express myself through the creation of video games, including violent ones, I'd like to know how government bureaucrats are supposed to divine the artistic value that a video game has for a 17-year-old. The man who spearheaded California's law, state Sen. Leland Yee, has not explained that. We've had no more clarity from Gov. Arnold Schwarzenegger, who signed the bill into law.

Yee argues in his friend-of-the-court brief that since the government can "prohibit the sale of alcohol, tobacco, firearms, driver's licenses and pornography to minors," then "that same reasoning applies in the foundation and enactment" of his law restricting video games.

As a game developer, I am disheartened and a little perplexed to see my art and passion lumped in with cigarettes and booze.

If California's law is upheld, it is likely that far more onerous measures will appear all over the country. Some stores may stop carrying Mature-rated games. Game publishers might be afraid to finance them. Developers would not know how to avoid triggering censorship because even the creators of such laws don't seem to know. The lawmakers won't tell us their criteria, and their lawyers have refused to reveal which existing games would be covered, even when asked in court.

He's not the only one that's disheartened over this.  Video games have come so far in the past twenty years or so and are so damn close to becoming a respectable medium in the eyes of mainstream, but obviously we haven't come as far as I'd hoped.  Do you have any idea how many people have looked down on me (particularly in the dating world) when I mention that I enjoy video games?  Explaining what I do here with Press The Buttons doesn't do me any favors either.  You'd think that I'd proclaimed a passion for illicit drugs or keeping kittens in jars.  Part of that perception, I believe, comes from lawmakers and panderers who constantly demonize video games for their own ends as a matter of habit.

Kotaku has a well-written summary crafted by Stephen Totilo that explains the case's implications in both the short and long term.  I highly recommend that you read the entire piece, but here's an especially chilling excerpt:

What's it about, again? Whether violent video games should be treated like pornography — in other words, whether there can be a type of violent video game that would be legal to sell to adults but illegal to sell to kids.

Oh, like R-rated movies? No, not like R-rated movies. It's legal in the United States for a kid to go see an R-rated movie, even if it's against the rules set forth by the movie industry. The only kind of movies that are illegal for kids to see are obscene ones (they're illegal for anyone to sell to anyone of any age). Those movies would fall under a special category defined by the Supreme Court in the late 60s for certain kinds of sexual material. California wants violent video games to be treated like that extreme sexual content, something no violent movies, books or magazines are subject to.

What would happen if the Supreme Court decided in favor of California? One thing is for sure; it would become a crime to sell really violent games to kids. The problem would arise, of course, as to identifying which games such a law would prohibit. The fear of the people on the side of the gaming industry is that this confusion would force retailers to be conservative in what they sell to kids and that it would force game publishers and developers to also hold back in the types of content they create, lest they sell a game that a retailer would be afraid to sell to a minor.

That doesn't sound so bad. GameStop is already supposed to not sell M-rated games to kids. True, so your reaction to what could happen here depends on how you view the First Amendment and where video games fit in. If the Court rules for California, they are saying there is something different — and more potentially damaging — about video games compared to books, movies, music. Agree or disagree?

Red Dead RedemptionA victory for the industry in this case would be another step in the right direction for raising the image of gaming in our culture and an assurance that new ideas that admittedly tread into the dark side of thought and expression from time to time would continue to flourish.  For instance, the M-for-Mature rating is found on games such as BioShock and Red Dead Redemption, and as you'll recall, both of those games include rich stories and thought-provoking elements.  Players come away richer for having experienced them.  It is to our advantage that these kinds of games continue to see the light of day.  I love the E-for-Everyone Super Mario Galaxys and Kirby's Epic Yarns of the world, but I also enjoy something more stimulating and narratively substantial in my gaming diet.   

A loss in this case would lead to the legal classification of video games into the same category as pornography.  I certainly don't need that label hanging over my head when I mention my video game hobby in mixed company or on a first date.  How many games like the aforementioned BioShock or Red Dead Redemption would make it to store shelves if those shelves had to be kept out of sight and out of mind with other restricted items?  Plus, we'd also have to endure a few dozen smug idiots gloating on television about how they "were right all along" and how they've "saved children from the evils of [insert his or her favorite video game industry punching bag here]".  Nobody needs them mucking up our day and kicking us while we're down.

I haven't said much about the Supreme Court hearing before now because, sadly, I don't believe it will end in our favor. The "think of the children!" rhetoric is too strong and has a nasty habit of clouding decision makers' minds.  I strongly believe that games should continue to qualify for free speech protection, but since games are demonized by lawmakers, I just don't see it ending well for us.  Here's hoping that I'm wrong this time.