Heinous, Atrocious, or Cruel...

The California legislature is currently debating a law forbidding violent video games. The bill seeks to control electronic games that "taken as a whole . . . appeal to minors' morbid interest in violence, that enable the player to virtually inflict serious injury upon human beings or characters with substantially human characteristics in a manner that is especially heinous, atrocious, or cruel, and that, taken as a whole, lack serious literary, artistic, political, or scientific value for minors."

This sort of regulation crops up often these days, and obviously implicates First Amendment principles. Over at Findlaw, Professor Vikram David Amar (UC Hastings Law School) and Professor Alan Brownstein (UC Davis Law School) discuss whether the First Amendment will forbid this sort of regulation, and they do a nice job of explaining why there is no clear answer. Their conclusion, isn't going to win them any friends in the game developer camp:

"In the end, the First Amendment doesn't necessarily foreclose sensible regulation in this area. For that reason, states like California should feel free to experiment in this realm if experimentation otherwise makes sense."

Comments

[greglas]

1.

So the article states that the content of games played by adults cannot be regulated generally without violating the 1st Am (right), but that restricting game access to minors on the basis of obscene or ultra-violent content is a real possibility (right again).

Note this part, though:

"It seems to us that much will turn on how much thought, strategy, reflection and analysis a player of a particular kind of video game is called on to undertake during the course of the game. A fast-moving game where the player is simply shooting at everything in sight may be very different than one in which the player is asked to map out a plan to accomplish some strategic (albeit offensive) objective."

By "very different," I take it they mean "less susceptible to 1st Am protections." This is from that pernicious line of 80's decisions that, as Hayot and Wesp noted, suggested that computer games aren't "expressive." Doctrinally, those cases are out there, but the animating theory, imho, is fallacious.

[Ian McGee]

2.

Worth reading is "Killing Monsters Why Children Need Fantasy, Super Heroes, and Make-Believe Violence" by Gerard Jones & Lynn Ponton: http://www.amazon.com/exec/obidos/tg/detail/-/0465036961/qid=1071816274/sr=1-10/ref=sr_1_10/002-1387885-3229646?v=glance&s=books

The basic idea is that kids use fantasy to explore ideas, and might be better off having ways to express & experiment rather than forbid & deny.

Food for thought...

[weasel]

3.

I think we all know why such content is important to protect legally - even while some of the extremes might be deplorable in context.

As much as legislation like this (even in the proposal stage) makes my blood boil, I wind up coming to the conclusion that the ESRB is bringing half of this problem down upon us.

Frankly, I think the ESRB is botching it's shot, and so long as it stumbles gaming is going to continue to careen ever-closer to censorship. But I've already popped off before about that one.

If the ESRB can't honestly rate content, educate the buying public, and enforce retailer support, then the gaming industry will eventually lose to legislation.

[David Thomas]

4.

I'd be interested in what the lawyers on this forum think about the language of this bill.

I don't have Black's Law handy, but I can't imagine it has very helpful definitions (If it has them at all) of things like "especially heinous" and "morbid interest".

I guess my point is, this bill sounds like it was written by Clive Barker. Seems like any prosecution under a law written with this language would bog down in trying to show histrionic depravity.

[Trevor]

5.

The last thing we need is additional regulation. I mean that just as broadly as it's stated.

We do have a system in place to make sure parents (remember them? responsible for raising their children and protecting them as they see fit?) are given a clear idea of whether a given game's content is appropriate for a person of a given age. However as I see it, the ESRB is doing nothing more than giving a wink and a nod to the kids and letting them get their sticky little mitts on any game they want right now. If nothing changes, legislators will feel forced, even provoked into taking matters into their own hands.

The ESRB should be a recognized label by any parent with children who play video games, and right now I'll bet only a tiny fraction of them would recognize it and most of those parents would probably be gamers themselves!

There should be 30-second TV ads on major networks, take-home pamphlets sitting at (adult) eye-level in the video game aisles of any retailer who has them, and notices, pamphlets, and pro-active staff at all video game specialty stores. If the only people who know about the ratings are the kids then this whole system is useless.

So in my opinion the issue isn't why children play the games they do, or what it does to them as developing little people, but whether we want to let the government take the questions and decisions out of our hands entirely. Let anyone who wants to debate the psychological and moral implications say what they will, but when I'm raising my child I intend to decide whether Doom 10 or Half-Life 2 (heh) is appropriate for my theoretical offspring on my own terms, not the government's.

[Dave Rickey]

6.

The industry still doesn't get it. This is a shakedown. Very polite, with plenty of "think of the children" appeals, but what it comes down to is that the politicians have noticeded that the computer games industry makes almost as much revenue as Hollywood, but does nearly nothing in campaign contributions. These bills are saying "Nice business you've got here. Be a real shame if something bad were to happen to it...."

--Dave

[DivineShadow]

7.

From China's crackdown on unlicensed cybercafes. This seemed relevant to contrast the discussion against:

http://www.theregister.co.uk/2004/05/06/china_cybercafes_menta/

I especially loved: "As if to prove a point, Xinhuanet cites the tragic case of two youths who were crushed to death by a train when they fell asleep on a railway track after spending 48 hours in a cybercafe"

[Celia Pearce]

8.

I thought it might be worth adding to this discussion a copy of the letter I sent to California Assembly Members about this issue, citing the Missouri brief, which I was on, as well as some recent research that is relevant to this issue:

-----Original Message-----
From: Celia Pearce [mailto:[email protected]]
Sent: Friday, April 09, 2004 11:30 AM
To: [email protected]
Subject: Bills 1792 and 1793

Dear Assembly Member Spitzer:

I was alarmed to learn of Bills 1792 and 1793 designating video games as harmful substances in the State of California. I am a video game scholar at the University of California Irvine. I have been working with and studying computer games for over 20 years, and have written a book and a number of papers on the subject. I am not sure how the state arrived at the conclusion that video games are a harmful substance comparable to alchol and tabacco, but it was certainly not through empirical and scientific means. Many scientific studies in this area are inconclusive and do not include appropriate control group comparisons to draw any empirical conclusions. Furthermore, a recent long-term study by Dr. Richard Tremblay of the University of Montreal of violent behavior over a lifetime concluded just the opposite. Namely, that children exhibit their most violent tendencies early in life (around the ages of two and three), and are socialized over time by training from adult caregivers. Furthermore, children exhibiting the most extreme violence as toddlers are most likely to become violent as adolescents and adults, a problem exacerbated by violence in the family environment. Among other things, this study concluded that ...video games and action movies do not suddenly turn 12-year-olds violent. (See Canada Globe and Mail, April 5, 2004)

I would also like to point out that most scholars and legal experts alike have arrived at the conclusion that games are a form of expression, and therfore, should be have the same freedom of speech protection as any other medium. I will call to your attention to the United States Court of Appeals for the Eighth Circuit, St. Louis Missouri, decision No. 02-3010 regarding the Interactive Digital Software Association, et al vs. St. Louis County to overturn Ordinance No. 20,193 as unconstitutional restriction of free speech. I was among 30 international game scholars who participated in a legal brief refuting the asserion that video games are harmful to children that was used to support the law: . Circuit Judges Bowman, Sheppard, and Riley arrived at the judgement that The Countys conclusion that minors who play violent video games will suffer deleterious effects to their psychological health is simply unsupported in the record. (Arnold) Furthermore, the question here is whether the County may constitutionally limit first ammendment rights as a means of aiding parental authority. We hold that, under the circumstances presented in the case, it cannot. You can find full text of the ruling at: www.ca8.uscourts.gov/opndir/03/06/023010P.pdf

I think the California can look forward to a lawsuit if this law is passed as it is clearly unconstitutional and unsupported by the facts. I for one would prefer my tax dollars be put to better use.

Sincerely,

Celia Pearce

[Richard Bartle]

9.

Celia Pearce>I thought it might be worth adding to this discussion a copy of the letter I sent to California Assembly Members about this issue

It would be nice to think that they were going to listen to this, but it's just going to be catalogued and put in a box along with depositions from earnest parents who feel their children's lives have been blighted by the curse of computer games.

I suspect that the success of the video game Terminator 3: Rise of the Machines will be far more influential in determining whether or not this bill gets the thumbs-up from the Governor of California. It all depends on whether Arnold decides to be unhypocritical and go with the money or to inflate his moral standing by going against it.

Reasoned appeals to the US constitution and to well-grounded research based on verifiable fact will, I suspect, have nothing to do with it.

Richard