Video Games & the Supreme Court – What Happened Before, During and Later

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Since the last story about video games and politics, an incredible amount of information and updates have been unearthed.  If your all for video games remaining uncensored, this article is for you.  Some of it may infuriate you, but the ending will give give you some hope.

Lets start out with CNN and G4TV.  CNN interviewed Adam Sessler about the California law and judicial case.  In my opinion, Adam brought out some extremely good points, and CNN seemed to be agreeable.  Shocking though it may be, as we have all seen how many times the media has dredged gaming through the dirt, the media actually does provide a balanced view of gamers.  Check it out!

[pro-player width=’530′ height=’253′ type=’video’]http://www.youtube.com/watch?v=sQZHj-WJZSE[/pro-player]

Link to CNN.com Video

Rush Limbaugh, a Conservative radio host, also had interesting things to say.  Although I may not agree with him on a lot of issues, it is hard to disagree with him on this.  You can read the whole call here ,but the main thrust of what Limbaugh said is this:

“I’ve been concerned about the reimposition of the Fairness Doctrine.  I am glad this is happening.  If it takes an impingement on free speech in something you’re interested in, video games, to alert you to what’s happening throughout society then I’m glad it’s happening, because I’m sure you oppose this…  Your video game is your video game and you don’t think the government should have any role whatsoever in applying any artistic sanction to it or any stamp of approval — you can say that but you can’t say that — because that’s not permitted… If it’s taken a video game to get you interested and have the light go off, to have you see what liberalism is all about, I’m glad to have you on our side, ’cause I agree with you.  Leave your game alone.”

So that was pretty cool.  But now lets get down to the juicy stuff.  On November 2, 2010, the ESA as represented by Paul Smith, had their opening arguments with the State of California before the Supreme Court.  We have linked the whole argument below,# and I strongly encourage you to read the first 59 pages that make up what happened on November 2.  It is really fascinating and even humorous.

CLICK THIS LINK! 😉 Schwarzenegger v. EMA

However, the short story is this:

Zack Morazzini, counsel for the State began the hearing by alluding to Ginsberg v. New York, a case in which minors’ are restricted from buying harmful sexual material.  However, Justice Scalia posed the question, “What is a deviant- a deviant, violent video game?  As opposed to what? A normal violent video game?… There are established norms of violence?

This statement really sums up a lot of the problems that the State of California had when they drafted this law.  Not only is the law vague, but it also near impossible to regulate and implement.  It would be the publishers mandate to rate the game and hope they fall into line with what the State has ordered.  The law also fails to take into account downloadable games.  How can it possibly enforce that?

In the same line of reasoning, Justice Scalia posed the question, ” What is a deviant violent video game?… Some of the Grimm’s fairy tales are quite grim, to tell you the truth… Are you going to ban them too?”

Justice Ginsberg and Roberts followed up that whammy of thought by grilling the State on why only video games, and not other forms of media that have violence were included in the law.

“The California legislature was presented with substantial evidence that demonstrates that the interactive nature of violent — of violent video games where the minor or the young adult is the aggressor, is the — is the individual acting out this — this obscene level of violence, if you will, is especially harmful to minors,” Morazzini said.

However,  Justice Sotomayor responded with, “One of the studies, the Anderson study, says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?”

Now that the prosecution has had their say, what say we set up a defense now?  Enter Paul Smith, who utters, “California, as we have heard today, does not seriously contend that it can satisfy the usual First Amendment standards that apply to such a law.  Instead it’s asking this Court to grant it a new free pass, a brand-new Ginsberg-like exception to the First Amendment that would deny constitutional protection to some ill-defined subset of expressive works, and I submit not just video games, but necessarily movies, books and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive.”

After discussing this for awhile, Smith goes on to cite how effective the ESRB has been in regulating the sale of M games to minors.

As a side note,  according to the FTC,  the ESRB holds the best record, beating out R rated movies/ theaters and music sales with an 80% turn away rate for minors attempting to buy M rated games.*

Smith also mentions how this case differs from the Ginsberg law when he states, “… we do not make films for children in which explicit sex happens.  We do make films for children in which graphic violence happens.”

After a bit more Q&A, Justice Alito said, “We have here a new — a new medium that cannot possibly have been envisioned at the time when the First Amendment was ratified.”

Smith’s answer was, “We do have a new medium here, Your Honor, but we have a history in this country of new mediums coming along and people vastly overreacting to them, thinking the sky is falling, our children are all going to be turned into criminals.”

The Court also wondered about how much narrative there was in video games, asking how much different a video game is than a game of Monopoly.  Apparently, they did not play Mass Effect, Halo or Enslaved. Odd.

“You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own,” Smith said. “That’s what makes them different and in many ways wonderful.”

Those are the high points, but it is impossible to convey how everything went down.  Once again, I strongly encourage  you to read the linked proceedings.

Now, onto the current news!  Microsoft released an Xbox Engineering Blog detailing all the improved console safety settings in the new dashboard.  You may want to check it out right here! Looks pretty good, and it is, in my opinion, the way that console manufactures and parents should have an active role in what games are played by what age groups.

*This is an exhibit to show how effective the ESRB is.  This a graph from the ESRB.  It was not a part of the court proceedings.

Video Game Industry Statistics

Can't see the text? Click the image to go ESRB.org and see it full size!

#Thanks for putting up the embedded Supreme Court docs, Joystiq.com!

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