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The latest patch 5.4 newsThe Lawbringer: Schwarzenegger v. EMA
by Mathew McCurley 
Nov 12th 2010 at 9:00AM
Supreme Court cases are super-exciting, especially when they involve things that I cherish. This week, The Lawbringer looks at Schwarzenegger v. EMA, the new flagship video game case that people will be talking about for months until we get a final ruling from the Supreme Court. Don't know what's going on? Want a basic understanding of why people are yelling and screaming about violent video games and California? Let's journey together all the way back to 2005 and see for ourselves.
Background
Greg Boyd, who I consider to have the "right" policy discussion dealing with this case, wrote an excellent piece for Gamasutra that everyone should read. I'm sure that soon, his article will become the definitive place to read about this case. He's also an awesome guy.
You've read all over the internet the past few weeks about Schwarzenegger v. EMA, the greatest video game court case ever tried before human beings. Well, technically, that opinion wouldn't be too far off. The current fight in the Supreme Court of the United States is a very important one, with an outcome that could very well disrupt a good amount of game developers and set in motion some pretty crazy laws in states that don't care too much for our children playing the Grand Theft Autos, blaming all of their problems on the video games their children play rather than the parenting needed to purchase one of these games.
In 2005, California passed a law that banned the sale of certain video games to children and imposed a $1,000 fine for each infraction of the law. The state effectively took over the role of the ESRB, the rating board for video games, and said that there needed to be clear ratings going above and beyond what the ESRB already had in place. Many organizations, including the now-named Entertainment Merchants Association (EMA), challenged the law in federal court, citing the law's unconstitutionality in violation of the First Amendment of the U.S. Constitution. Remember, the first amendment protects against the states' interfering with protectable forms of speech.
Laws are good, right?
Laws are great, sure, when they don't reach too far or define things too broadly. A great deal of the problem with the California statute is that it defines violent video games in an incredibly broad manner, effectively putting too great a limit on protected artistic speech. There's a standard called "strict scrutiny" that the court uses to determine if a law is narrowly tailored enough to limit speech; the law has to serve a compelling government interest and be narrowly tailored to meet that objective. So if the California law serves a legitimate state interest (stopping minors from purchasing violent video games) and is specific enough that no other, less restrictive solution can be put in place that does the same job, the law will be upheld.
Well, the ESRB is already in place, and self-regulation, in concert with retailer policies, is arguably already doing the state's job without restricting speech. That's the argument -- is this such an important matter for the state that speech must be restricted in order to serve the state's best interest?
Maybe? That's what lawyers are for. The point will be argued back and forth and eventually, in 2011, we'll get a ruling from the highest court in the land. Other states (11, in fact) have filed briefs with the court in support of California's law because they also would love to have this law passed. Here are the consequences: If the law is upheld in California, the reasoning used in the case gets to be used by every other state that wants to limit speech in such a way, with California setting the precedent. We already talked about how powerful precedent is.
The video game industry, as well as other organizations, is not staying silent. It also has thrown in its support behind EMA and striking down California's law. Creating this exception to free speech would move the dial closer to rationales for banning books, movies, art, television, and a whole host of other protected forms of artistic speech.
Activision Blizzard's support
Since this column is all about boomeranging things back to World of Warcraft, let's take a look at Activision Blizzard's role in the whole deal. It's not a formal role, since Activision Blizzard isn't a party in the case, but the company did file what is called a brief of amicus curiae. Basically, a non-party to the case can file a brief of information, testimony, articles and opinions that will help the court come to a better understanding of the issue at hand.
If you want to check out the brief, you can read it here. The whole document is about 40 pages of legal fun, but the real gist of the article is that the ESRB is more than capable of providing the public with the information to make informed decisions about whether or not children should be playing violent video games. Self-regulation is a huge deal in the video game business in America, and there will be a Lawbringer about that in the future. So for now, know that Activision Blizzard (as well as most, if not all, game developers and publishers out there) would prefer self-regulation to federal or state laws that dictate who can buy what.
G, PG, PG-13, R, and NC-17 are not law. If you are underage and let into an R-rated movie by the ticket collector at the local theater because you're wearing a UCLA sweatshirt and pretend to be a college student (it worked, trust me), the guy who broke the movie theater's policy isn't going to get carted off to state penitentiary. That's because the movie industry, for the most part, is self-regulated. The industry itself polices films and who sees them, through theater policies, ratings, etc. Fun fact to blow away party-goers at your next shindig: Gremlins, from 1984, played a huge part in the advent of the PG-13 rating.
Movies are submitted to the Motion Picture Association of America (MPAA) for a rating; the body deliberates and stamps the movie with whatever rating it deems appropriate. Video games work in a similar way. The self-regulation comes from the fact that most movie theaters won't screen movies that aren't rated by the MPAA, just as most stores won't stock video games without an ESRB rating. Ta-daa, you have self-regulation without the need for the state or federal government to step in and tell you how to do your business.
The big difference comes from the fact that there was a special exception carved out for certain obscene movies, mostly pornography, back in the 1960s. So much like that decision in Ginsburg v. New York, California is seeking the same type of exception that was carved out for obscene pornography to also apply to violent video games. Therefore, another question presented is: Are violent video games as obscene as or similarly obscene to the pornography that it is illegal for minors to purchase, and if this ruling were to come down on California's side, what does this mean for violent movies, television shows, and art?
Conclusion
Now, we wait. We wait for the Supreme Court to come to a ruling about whether California has a legitimate state interest in controlling who buys violent video games and whether the law on the books meets that end in a suitably narrow fashion.
My stance is pretty clear -- parents, not the state, should be responsible for what video games their children play. I say this not because the state is necessarily bad at deciding what children should or shouldn't have access to, but that it's the parents' role, and no one has proven that violent video games make violent children or adults. And Justice Kagan's remarks during oral argument speak to this, that even if most of the clerks at the Supreme Court were exposed to Mortal Kombat back in the day, they still turned out all right.
I still maintain that we, as gamers, need to be the ones to set the standard and control the message about video games, so that controversies like the Fox News Mass Effect debacle never happen or titles such as the apparent video game industry flagship title Postal 2 don't get the attention they so desperately do not deserve.
This column is for entertainment only; if you need legal advice, contact a lawyer. For comments or general questions about law or for The Lawbringer, contact Mat at mat@wow.com.Filed under: Analysis / Opinion, The Lawbringer
Reader Comments (Page 5 of 10)
cocoboom Nov 12th 2010 9:47AM
it's of course a fallacy to claim that the state would do the parenting for the parent as the ability for parents to decide which games the children play would be strengthened by this
Zirri Nov 12th 2010 9:52AM
Reminds me of when I went to Wal-Mart once on a beer run for my Dad. I was of legal age to purchase but my sister, who drove the car, was one year shy. They wouldn't allow me to purchase because I "could have been buying it for her". Is that the restrictions we're gonna see now? Are we going to stop every mom and dad with a child that is under the legal age to play a certain video game because they may let the child play it? Are we going to need "show-me's" for every person so that when I purchase a video game that is violent, my 17 year old brother can't be present with me because he "may" play it?
This is beyond ridiculousness. As it was mentioned, what's next? Movies? TV? Will I have to submit my age before watching "Supernatural"?
IF this passes, we might as well just switch to Communism. Why bother with "democracy" at that point? We're being restricted on things because parents can't DO the right thing and regulate their own kids?
/end rage
Amaxe Nov 12th 2010 10:22AM
abusus non tollit usum (abuse does not take away use)
The fact that some idiot in Wal*Mart may have been overzealous does not mean the rule itself is flawed.
I used to be a checker at walmart. Here's how it works. When certain materials are bought such as alcohol, tobacco, knives, certain games/movies and certain inhalants that can be abused, the screen **automatically** (it's in their computer) comes up with a question: "DOES BUYER SEEM TO BE OVER XX" (it varies on the item). If the person is obviously an adult we just hit the yes (1) button and complete the sale. If not or we are not sure, we hit the no (2) button and we are told to "check ID"
The rule is, once we ASK for ID, if the individual purchasing cannot supply it, we must refuse the sale. If they can supply it, we confirm they have ID and the sale goes through.
However, I was never told to refuse a sale to an adult with ID just because a minor was with the adult. So TBH I wonder if there were other elements not mentioned to make the cashier suspicious. Or maybe he was new or insecure about letting something go through (we could get fired if we knowingly sold a controlled substance to someone under the age, since Wal*Mart could be fined. Shit flows downhill)
Now lets look at your straw man argument: "Are we going to stop every mom and dad with a child that is under the legal age to play a certain video game because they may let the child play it?"
There is a substantial difference between a parent buying a videogame for a child and someone 21 buying liquor for someone under 21. In the first case, the parent has the right. In the second case the adult **even if the adult is a parent** does not.
Link Nov 12th 2010 10:30AM
I don't think you meant Communism. Communism is just a red herring.
While I'm not opposed to children being disallowed to buy violent video games, I don't think the state needs to control it. If businesses would be smart enough to train their employees to not sell violent games to minors, then we wouldn't be in this situation. Example: When Diablo 2 came out, I went to my local Hastings. They had a huge sticker on the front of the box that said something like "No minors. We card." I still tried to buy it (I was 16 at the time) and they refused to sell it to me. So, I drove across town to Best Buy and bought it, no questions asked.
Also, this law is way too vague while also being too specific. It only covers violence against humans. So if we want to chainsaw a person-zombie into little pieces or rip out the intestines of a strangely-human-like alien, then it is perfectly okay. However, the second we start harming humans in-game, that's a big no-no. The justices even questioned this flaw by basically asking "so, if they said that this isn't a human but an alien or an android, then it wouldn't be covered?" At the same time, the law doesn't specify which kinds of violence aren't allowed, only "deviant" forms of violence. What is deviant? Who decides what is deviant?
And I think you've touched on the most important part that people seems to miss: this court case will be far more reaching that simply barring minors from purchasing violent video games. This could decide what kinds of entertainment the government could censor entirely. If violent video games are inappropriate for kids, when do they become too much for adults? This could lead to the government determining what is and isn't okay for the people (ala. China-style).
Lipstick Nov 12th 2010 10:48AM
Amaxe -- it's not just that the person at Walmart was being over-zealous. They were following the store's procedure, which is an extreme take on the law in -some- states.
The laws vary slightly from state to state -- but having been a checker in the state of Wisconsin, I wasn't allowed to sell booze to someone -of- legal age if he's accompanied by his friend whose -not- of legal age. Same thing for siblings, etc. The only exception to this, is when the person -of- age, is the parent or legal guardian of the person -not- of age. Because in the state of Wisconsin, a parent or legal guardian is allowed to server -their- child alcohol as their own discretion, but ONLY in their home.
The law doesn't specifically say that this is the policy all stores must uphold -- HOWEVER, and here is why this rule is a bad idea if carried over to video games -- the law imposes pretty stiff penalties on stores found to be violating the ID policies, for the sale of alcohol or tobacco -- so LOCAL merchants, take FURTHER extreme measures to prevent sales to underage offenders, a) because they don't want to lose their liquor license and b) because they don't want to be slapped with huge fines.
So while you simply think it's just a sticker on a box, the original poster was more than likely right -- there will be many stores which will either a) choose not to carry certain merchandise, b) severely limit beyond the scope of the law who can get it, etc.
The above poster forgot to mention one other thing. Walmart sells many cd's from the music industry. Cd's which are specifically produced FOR Walmart. They still have parental advisory stickers on them in many case, but they have been STEALTH censored, with the changing of lyrics from swear words, to other deemed "less profane" words.
Not everybody lives in a capitol city. For many rural cities, Walmart is the only store in the area which makes video games available for purchase. If this were to become law instead of self regulated -- I don't even want to know what would happen.
Amaxe Nov 12th 2010 11:29AM
@Lipstick
Excuse me, but I have worked at Walmart, have had to deal with the "ask for ID/don't ask for ID" question many times and what I described was the company policy as I personally experienced it. Now there may be additional state laws in Wisconsin that require such a policy, but that would be the fault of the state and not of Walmart.
I for example worked in a "dry" county in Kentucky where stores could not sell anything more than beer (yes I thought that was stupid). I've also run the cigarette register [in KY you have to buy your cigarettes at a special register].
In neither condition was I required to refuse to sell alcohol just because a minor was standing next to an adult.
ScytheNoire Nov 12th 2010 9:52AM
If it applies to video games, then it should also apply to all forms of entertainment, including movies, TV, music, sports, etc. Oh, but wait, they don't want that. All they want is to censor gaming because it has taken too much away from those industries like the movies that Arnold is in bed with.
And why should he get to blow up and shoot people in movies, yet we can't do it in video games? Why can't we have some fun too?
Fizzl Nov 12th 2010 9:57AM
This always looks very odd to me in the UK we have these laws, retailers who sell adult content to children get heavy fines or even shut down just as if they had sold drugs or alcohol to children.
Ratings are done by the BBFC and can be seen here: http://www.bbfc.co.uk/recent/videogames
Based on levels of violence, horror, sex and crime, just the same as film ratings.
This isn't stopping adults from doing anything it's stopping retailers from selling inappropriate content to children. When I was a child (12 I think) I asked my dad to buy me Doom 2, it was an 18 at the time, he new me well enough to make the decision that I was mature enough for it and bought it on my behalf. What is so shocking about a law that helps parents control what their children have access to?
Avan Nov 12th 2010 10:06AM
It's because many of us (Americans) do not like the notion of the government making it easier for bad parents to be the bad parents that they are.
Lipstick Nov 12th 2010 10:19AM
America isn't quite the same as the UK. In America we have something called the Bill of Rights (not talking down to you -- just explaining, not sure how much you know or don't know). This Bill protects certain rights and freedoms, guaranteed to each US Citizen by law, and acts in essence as a trump card -- whenever new laws are being passed. Which is to say that new laws, can not infringe on these rights. In the first amendment of the Bill of rights, we're granted, Freedom of religion, freedom of speech and the press, the right to assemble, the right to petition our government.
One of the reason why the movie industry and the video game industry do not have -laws- passed by the state to restrict or limit access is because these laws would infringe on freedom of speech in many cases. Which is not to say that video games or movies are not regulated -- they are. They are regulated by the Motion Picture Association of America and Entertainment Merchants Association. They are in charge of reviewing, judging content and giving it ratings. These ratings don't restrict whom they can be sold to, but rather act as a guide for what's appropriate. The government pretty much stays out of it, and lets it police itself. Ie: Leaves it up to retailers and the parents of children to make judgment calls about what is or is not appropriate for their children.
Were the government to step in and a) do the judging/grading for this content, and b) say whom it can or can not be distributed to -- they would in essence be policing what can and can not be made available to the American public. Which could when taken to it's most extreme conclusion, be a form of censorship -- and would infringe on the bill of rights.
Many countries in the world -- do police what can and can not be accessed or viewed. China has gone round and round with Blizzard in trying to make a version of wow meet up to their standards and practices so it can be distributed. In many Middle Eastern countries, there is no such thing as freedom of the press -- entire parts of the internet are blocked from public view etc.
Freedom of speech, and expression in America is something which has always been vehemently upheld -- it is also one of the reason many foreign countries dislike America. Freedom of speech is more than just the right to have an opinion and post it on the internet like we are now.
Arjunas Nov 12th 2010 1:01PM
@Lipstick
The problem isn't the Bill of Rights per say, it is the notion that *any* form of governmental regulation makes the American masses scream "COMMUNISM EVIL BULLSHIT OMG WE ARE LIKE CHINA!"
The truth is, the government already censures a lot of products. Pornography, Alcohol, Tobacco, Firearms, Drivers Licenses, Pilots Licenses, Speed Limits, etc... All of these are dangerous if not regulated. But, the knee jerk "OMG COMMUNISM" is pulled out whenever something new is possibly added to the list. If people actually stopped, sat down, and thought about it for a second before joining the "OMG COMMUNISM" crowd then this country would be a better place...
I am against large government, I want the government to stay the &^&$ out of my wallet and the &^&S out of my life unless necessary. But I see the merits of passing a law like this. Right now the ESRB ratings have no teeth. Bestbuy can sell my 12 year old child Postal II and the best I can do is send them a strongly worded letter and flip them off from the parking lot. With this law I can report Bestbuy and they will be fined. Yay for the ESRB ratings finally having teeth!
The other reason people are against it is because Movies and Music don't have similar laws. Hell, music doesn't even have a rating system. I think they need one as well. Go watch a 10 year old girl sing along to Lil' Wayne's Lollipop and let me know if you still disagree.
Regulation for minors isn't bad. It ensures that a parent's efforts at home actually work. How happy would the masses be if stores weren't penalized for selling guns to people without licenses, or even worse, selling them to children? No, I am not comparing guns to video games merely the idea that not all regulation is "OMG COMMUNISM"
Stop America, think it over before jumping on the "OMG COMMUNISM" train. I know it is a familiar place to go, you enjoy your time screaming there, but just this once - PLEASE - stop and think about it.
Claire Nov 12th 2010 1:09PM
There's a fairly sizeable cultural divide in the U.S. about "freedom of speech" and what exactly it involves. Combine that with a terror of Big Gubment controlling our lives, and there you go.
Lipstick Nov 13th 2010 1:10AM
@ Arjunas --
I don't scream zomg communism as if it's a bad thing, at everything. In fact in many situations, I think our society as a whole would be better if we adopted -some- notice: not all communist practices. Such as health care, and education. I think if our society made these things more readily available we as a society would be in a better place.
That being said -- of the things you listed, only pornography falls under anything resembling freedom of speech -- which in our country has evolved to be more than just spoken word, but any artistic medium of expression. Pornography is as actively policed as it is due to child pornography. Something which i personally have no complaints on.
My problem with the current law is a) the law is too vague. Too many times vague laws have been passed because they sound like a good idea in theory, only for them to end up being very bad, because due to their vague nature end up getting interpreted in many very bad ways and b) I don't want the government involved in the rating of what's M value content. If they worked it out so the video gaming industry still made their own determinations then it might be ok-ish. However, it does worry me that were the government to get involved in it, it would lead to censorship in games. Either publicly or behind the scenes.
BladedDingo Nov 12th 2010 9:59AM
It's things like this that piss me off. I used to work at an EB Games and M rated games, I refused to sell to minors or ppl witout id. my manager was strict on this policy, i also made sure to atempt to educate parents and the games they bought their children. I even kept a stack of ESRB pamphlets by my register to give to the parents.That being said, i allow my 12 yr old nephew to play GTA because i talked to him and explained that it's a game, its fun and he is in no way to act out, mimic or copy in any way what he see's and hears. hell, he doesn't even understand half of what is said yet.
Lipstick Nov 12th 2010 10:01AM
California is a strange place. They want to legalize pot, but they want to ban gore and blood in video games, because it might "effect" the children.
So.. weird.
Claire Nov 12th 2010 1:11PM
Actually, we apparently don't want to legalize pot, seeing as that initiative didn't pass. :)
icepyro Nov 12th 2010 1:31PM
The pot initiative would have put the same restrictions on it as alcohol currently has, so yeah, not really affecting the children unless your current drinking does.
Also, I'd be very curious to know what the vote would have been like if it was a purely moral vote and not something with so much economical impact.
Then again, I've always called California the Granola State (nothing but fruits, nuts, and flakes)... and then I moved out here and that has only reaffirmed the nickname. Why did I do it?!
Amaxe Nov 12th 2010 10:02AM
Seems this article should have been listed "Opinion" or "Editorial."
Also, I believe there needs to be a distinction between the evaluation of this law vs. of a law in general.
IIRC, the MPAA code was implemented to head off any legislative actions. Likewise the ERSB. From time to time, the MPAA has been given motivation to shift policies when grumbling from Congress was heard
True it is not illegal for someone to sneak in to an R rated movie. This system depends on the enforcement by the movie theaters.
However it doesn't seem to necessarily follow that it is unconstitutional to put legal teeth into the ratings if a voluntary system seems broken.
The issue doesn't seem to be "parents, not the state, should be responsible for what video games their children play." The issue seems to be whether a minor can, on their own, buy a game or watch a movie, buy/rent a movie. Not whether a parent can or cannot permit minors to watch/play. According to the Gamasutra article linked:
"The intent of the law was to prevent violent video games from being sold to minors, and required a 2 by 2 inch sticker placed on each game labeled as violent that read "18+".
This label would be in addition to any ESRB rating on the game. The primary responsibility for compliance would fall on retailers, who could be fined $1,000 per violation for noncompliance."
In other words, this seems to be about gaming stores who wink and nod and sell a M rated game to a minor, not about parents who buy such games for their minor children.
Now admittedly the law as quoted in the Gamasutra site seems awfully vague, perhaps too dangerously vague to be legally viable. However, I don't see that the **concept** of a law requiring retailers to follow the rating system is automatically censorship or replacing parents. (Some parents support such laws incidentally).
Personally I don't get why the lawmakers in CA just didn't say "Any movie theater owner who permits a minor into a NC17 movie or (without parents) someone under 17 into an R rated movie, any movie retailer who sells/rents an NC17 movie to a minor or an (without parents) R rated movie to someone under 17 OR if any retailer sell an AO rated game to a minor or a M rated game to someone under 17 shall be..."
That would merely put an obligation on the retailer/theater owner to enforce ratings.
Remember we do have cigarette and liquor age restrictions which are enforced at the retail level regardless of whether or not parents care. So it seems things are not entirely without precedent.
So now I expect to be downranked to black and accused of "supporting censorship" and of "being right wing" even though neither is true.
SINisterWyvern Nov 12th 2010 10:17AM
The system of self regulation on video games is working better than the laws restricting the sale of cigarettes to minors. Keep the government out of 1st amendment protected free speech!
bui Nov 12th 2010 10:28AM
I see what you're saying though I don't think you're looking at it in the same context most of us are. Yes it imposes government regulation onto the video games and it simply puts a stop to the occasion when a minor purchases a game before they should be allowed to. That doesn't sound so bad, but if this argument falls in favor of California it will open the flood gates to many many other regulations that the government will want to impose. This does more than it appears because it will place "violent video games" into the same category as porn, which means that many other restrictions will follow using this case as the precedent. So now we've unleashed the floodgates and in come more regulations heres just some that come to mind.
A board will have to be set up at the state level which will have to test the games before they are released which could mean huge delays between when the game is finished and when you can purchase it. As well as costing the tax payer a fortune because I'm sure they will be paid a high salary for having to deal with "violent video games" which may be harmful.
Also in some states it might mean that the game stores have to purchase a license to sell the games and conform to certain standards before they can sell the games. This could mean big money to a store so they might just not sell the game at all in favor of saving money.
As a consequence of the above game developers might start toning down what they put into a game thus censoring themselves so that they can sell the game to a wider audience and avoid the hassle with the regulations.
So its not as simple as you might think, it sounds simple until you really think about what it could mean. This is a Supreme Court ruling which means once they decide it becomes a nation wide law. So it doesn't matter that only 12 states care all 50 would have to comply. And again its just a fine, until those 12 states and possibly others begin passing other laws using said Supreme Court ruling as a precedents which will make things like the mentioned above much easier to pass into law. This ruling has far reaching effects that I don't think you've thought about and thus you are able to say its just a fine and a sticker. Well madame it will start out as just that and possibly lead to the ruination of video games, the burning of books, and having nothing but kiddie movies in the theaters.