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Posted on Jul 1st 2011 at 03:31:47 PM by (highspot)
Posted under Censorship, Supreme Court, First Amendment, California law, ban, Mature, ESRB, art, responsibility

(I recently wrote a paper for school discussing the Supreme Court's recent decision to throw out the law in California banning the sale of "violent" games to children and thought I'd share it here! I've been wanting to start blogging here for a while now and thought this would be a great starting point. Let me know what you think and expect more to come!)

supremecourt.jpgTrying to link popular media to the corruption of young people is nothing new in America. From Tipper Gore and the PMRC going after musicians in the eighties to the formation of the Hays code for rating movies in the thirties, people have tried to make the argument that material which some may find objectionable is detrimental to the minds of those who experience it and can be clearly linked to deviant behavior. The extent of that particular type of influence is a debate that may never reach a conclusion that satisfies both sides. With its rise in popularity over the last few decades, the video game industry is the latest target being made an example of by those who wish to limit a consumer's access to material that they find objectionable. California has tried and failed to pass a law prohibiting the sale of certain games. As with any other form of artistic expression, this is a type of censorship, something that is clearly against the First Amendment of the Constitution. With a voluntary, self imposed rating system and a lack of clear evidence as to the influence that games have on the minds of players, the dismissal of California's law by the United States Supreme Court is the right decision, the only decision, in defending the rights of game makers to be able to freely express themselves through their creations.

In 2005, California Governor Arnold Schwarzenegger signed into law a ban on the sale of violent video games to minors. Retailers caught in violation of this ban would be subject to fines of up to $1000. Before the law was even put into effect it was tossed out in a San Francisco federal appeals court. The case made it all the way to the Supreme Court in June of 2011 before yet again being struck down by a ruling of 7-2 as an unconstitutional infringement on the rights of video game makers as outlined by the First Amendment. Proponents of the law state that the government "has a legal obligation to protect children from graphic interactive images when the industry has failed to do so" (Mears). That begs the question as to how and to what extent the gaming industry has failed.

5109769526_0c24f4b75d_o.pngThe Entertainment Software Rating Board (ESRB) was formed in 1994 to provide an industry standard rating system that works very much like the Motion Picture Association of America's (MPAA) rating system for movies. The ESRB randomly and confidentially selects a group of reviewers from a pool of qualified applicants to view footage from each game submitted. Upon coming to a consensus based on a specific set of criteria, the game is given a rating and sent back to the game's publisher. The publisher then has the right to challenge the decision or edit their game in order to try to acquire a lesser rating. With those final ratings printed visibly on the front and back of the packaging of every game sold, it is a fair system that has worked for years in helping parents judge whether or not they want their children playing a certain game.

Although  an ESRB rating is not a requirement, it is a voluntary process, most stores will not carry an unrated game and many companies will not license an unrated game for use on their consoles. In addition, most retail stores have policies of carding young people when they try to purchase anything rated Mature (suitable for ages 17 and up) or above, much like a movie theater employee would ID someone trying to get into an R rated movie. It is a parent's right, and their responsibility, to regulate what their children watch or play. It is not the fault of the video game industry if children are allowed to play games that could be deemed inappropriate by some; the information is out there for all to see. It is an easy system to understand even to those parents who know nothing whatsoever about gaming, and since almost all games sold in stores are required to have a rating according to their own self imposed policies, there is no excuse for any parent claiming that their child is playing something objectionable.

gooddead.jpgAllowing the government to impose a ban on the sale of any type of game should not be allowed. Had the law been upheld in court it would change the way the industry makes games. A great deal of money is made by the sale of Mature rated games and passing a law as strict as the one California proposed would see a drop in the number of Mature games produced. According to Joan Biskupic and Mike Snider of USA Today, "the audience for video games has aged - the age of the average game player is 37 and nearly one-third of gamers are over the age of 50." This means the majority of gamers today are old enough to make decisions about their entertainment for themselves. They should be able to have the choice of whether or not to play a game that others may find objectionable. Under the proposed law retailers would be more hesitant to stock Mature rated games in fear of getting fined should an employee carelessly sell the wrong game to a minor. This process has actually already occurred in regards to Adults Only rated video games. The AO rating is equivalent to an NC-17 rating for movies and almost all stores refuse to carry such games. There are very few games made that carry the AO rating due to the fact that their limited availability makes their sales extremely poor. If retailers were to stop selling Mature games altogether then the gaming industry would take a huge hit monetarily, but just as importantly, gamers would be denied their right to choose what they play.

Famed and respected film critic Roger Ebert may feel that "video games can never be art," but countless people around the world would argue that video games have evolved to a point to where they have the same ability to elicit emotions as strongly as any classic movie. Many games today are crafted with the same care and scope as any great film. They require directors, actors, writers, visual artists, musicians, and countless others to work together to create an experience that is both completely engrossing and extremely moving. How can that not be considered artistic? To deny that a game such as Red Dead Redemption, a game set in the old west with a heartbreaking story and realistically fleshed out characters, is a work of art is to deny that a movie like The Good, The Bad, and The Ugly is considered art as well. Both are masterpieces of their medium. Freedom of expression through such works of art is clearly protected by the First Amendment.

kid.jpgThe argument against government interference in artistic endeavors should end there, but many people won't let it. Many still claim that violence affects young brains and the added interactivity of video games strengthens that negative influence. This leads people to conclude that the government should regulate games as if they were dangers to children's health like cigarettes or alcohol. The fallacy in this position is that while cigarettes and alcohol cause clear and testable harm to children, there is no clear evidence that violent games, or violent art of any kind, cause otherwise stable  people to turn violent themselves. In an article by Michael D. Gallagher, President of the Entertainment Software Association, the U.S. Ninth Circuit Court of Appeals is quoted as saying, "'The state has not produced substantial evidence that...violent video games cause psychological or neurological harm to minors.'" With a clear lack of evidence of any harm, what reason is there to subject video games to harsher scrutiny than movies or music? In short, there is no good reason.

Should all children be allowed to play any extremely violent or graphic game they want? Probably not, but that's a question that only the parents of those children should answer. From the earliest games of bouncing a dot around a screen for points to the latest masterpieces with stories of epic proportions, video games have truly grown into a rich and valued art form. At one point or another all forms of art throughout history have been blamed for corrupting youth but the evidence is never there to support such claims. In addition, the ESRB rating system is one of the most effective rating systems currently in use in popular media of any form so the concern of exposing young children to material that their parents don't want them to play is moot. The burden of responsibility falls now on the shoulders of those parents; the gaming industry has done more than enough to educate consumers about their products. The California law would have done no good if it had passed, it would have only done harm and would have stunted the growth of a burgeoning art form.

Works Cited
Biskupic, Jane, and Mike Snider. "Supreme Court Rejects Ban On Violent Video Games." USAToday.com. 27 June 2011. USA Today. Web. 28 June 2011.
Ebert, Roger. "Okay, Kids, Play On My Lawn." Chicago Sun-Times. 1 July 2010. Sun-Times Media, LLC. Web. 28 June 2011.
Gallagher, Michael D. "Video Games Don't Cause Children To Be Violent." U.S. News & World Report. 10 May 2010. U.S. News & World Report LP. Web. 28 June 2011.
Mears, Bill. "California Ban On Sale Of Violent Video Games To Children Rejected." CNN.com. 27 June 2011. Cable News Network. Web. 28 June 2011.

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Sorry about being a bit nit-picky and anal-retentive (it's in my nature), but I noticed something a bit suspicious in the following passage:

Before the law was even put into effect it was tossed out in a San Francisco federal appeals court. The case made it all the way to the Supreme Court in July of 2011 before yet again being struck down by a ruling of 7-2 as an unconstitutional infringement on the rights of video game makers as outlined by the First Amendment.

Either you're clairvoyant, or you live just west of the international date line...  :p
I'd say the title is misleading. It makes me think that your piece is about the SCOTUS case. However, you focus much more on the attempts to censor video games (in U.S. society), and why this is foolish. The SCOTUS case seems to simply be part of that argument. Am I wrong?
I can appreciate a debate on violent video games, but it misses the major turning point of the Supreme Court case. It is the first decision that the Supreme Court has made on video game media. Not only that, but now the video game entertainment media is now covered under the same laws and regulations that books, movies, and art are held to...yes, video games can now officially be considered "art".

Even though the AO rating has been available, no retail stores will carry an AO title, nor will any of the major 1st party companies (Nintendo, MSFT, Sony) allow AO rated titles to be officially released. However, now that this judgement has passed, developers can push for an AO title to be published under 1st amendment rights, as long as it doesn't showcase sexual violence. These titles could then be officially carried by adult stores. This is just an example of what this monumental judgement allows.
I for one think AO titles should be free to exist. It just seems to me that complete freedom over the product means some amazing things. Not to mention the VHS and DVD mediums seem to point to the fact that "AO" titles mean a large install-base. Am I wrong? Smiley
Maybe up to the '80's parents had the ability to control what their children were exposed to - and I used to think this - but these days there are far too many circumstances that prove otherwise.  The biggest would be that the days when one of the parents was able to stay home to monitor the children while the other worked is all but gone, unless the working parent makes a fortune.  Then there is the massive media exposure of adult entertainment on the internet, television, and even the apps on our phones.  Is it completely the parent's fault that a teenager sees nothing wrong with stripping on webcam or risking massive bodily injury for a Youtube upload?  Yes, the parents should have tried to teach the rights and wrongs, but peer pressure is a bitch. 

When I was a kid, I frothed at the mouth for a chance to listen to a "Parental Advisory" album and we used to buy cigarettes out of a vending machine for quarters at the local greasy spoon, but now as a parent and uncle, I can completely understand how important the rating systems can be and that the retailers should be more responsible about who they sell to.  When my parents were concerned about what I watched, I was still able to enjoy adult movies at a friend's house because his parents didn't care either way.  That doesn't reflect on my parents AT ALL, and this should not even be considered. 

Don't get me wrong, I love horror movies and horror games.  They are my favorite genre.  I don't completely believe that these games can influence kids to attempt violence, but I don't want retailers and other parents to be able to provide the exposure.
@Zagnorch Oops, yeah, I meant June.

@pdrydia Well, the Supreme Court decision was the inspiration for the piece. It's just an opinion piece about why I think the decision was the correct one. Sorry if it was misleading.

@Shadow Kisuragi I agree it's a major turning point but again, that wasn't really what the piece is supposed to be about. It's more of just a commentary on the situation abd why I support the decision. And I can see your point about developers pushing for AO games based on First Amendment rights, but I don't think the court's decision will necessarily lead to more AO games being produced. I don't really see the status quo for AO games changing, but that's just my opinion.

@noiseredux I'm all for AO games, if it's good I'll play it regardless of the rating.

@BoxInTheBack True, parents can't watch their children all the time, but allowing the government to regulate games in the way they proposed is a slippery slope. The ratings are out there and they work. Will every store employee stop kids from trying to buy a mature game 100% of the time? No, but the ESRB system works very well and has actually be shown to be more effective than the MPAA system for movies.

I firmly believe that it's parents that have influence over the development of a child's morals, not what they watch or play. I grew up on horror movies, heavy metal music, and was able to watch adult movies from time to time as well.
@highspot: Well defended.  You had me until the morals comment, but that is a subject far beyond a gaming forum.  I hold (I somewhat hate the word "believe") that someone's morality is a multi-generational heredity and can't be taught by immediate parents, but you may be talking about their social ethics.  But this is, well...fortunately, a huge naturalist v. mythist argument. "You don't need to tell me in a book how to treat others.  I already know that I should protect my own race."  Far more complicated than many would think.
@BoxInTheBack: That may be well and good for you, once you're forced into mail ordering your mature games... and that the rate of those games slacks off because, well, they don't sell nearly enough compared to the "kiddy safe" games.

Some companies would still produce mature games, but mail order is not nearly as large a market as brick and mortar really, and I can imagine most game stores would rather pull the mature titles outright than risk even one incident of an employee selling to a minor. That's easier than training them and preparing management to discipline the inevitable, and it's safer than the eventual lawsuit even when the employee discipline is meted out for the slightest violation.
There's one major problem with your argument - it doesn't take a fortune to keep one parent home. In fact, it's a common thing to do here. Day care costs are often the same, if not more, as working a full-time job here. If, as a parent, you don't make more than $10/hr here, you might as well stay home and take care of your kid instead. That's if you only send them to day care for part of the day...

Titles are being delivered digitally now. There would be no reason why you would need to do mail-order, and each console has parental controls on it to prevent a child from downloading content that they should not have access to. Now, whether or not the parent knows how to use it properly is a different matter...
I'm sure the Supreme Court got a chance to see the statistics, but the ESRB ratings and retailers are the best in the entertainment industry about making sure their mature audience ratings do not get sold into the hands of a minor.

This does not stop a parent from buying the game for their underage kid as it keeps the kid entertained and out of the parent's hair. Its a shame that his is our current society but there are parents out there who know their kids well enough to know that Mortal Kombat or GTA will not scar and make them violent social outcasts. I was 12 when I played GTA 3 and I had played GTA 2 on my PS1 before I was 10, it all depends on the individual and a good parent will know that the M rating for violence does not mean too much for their kid.

I've played older Teen rated PC games that had people be eviscerated or blown up by magic or a simple sword swipe, so the ratings system did and still does falter from time to time.
To be clear, I'm not defending the censorship at all but do agree with the rating system leading to better awareness by everyone.  I do like that cases like this bring out the needed discussions.
@highspot: No no, you don't need to apologize. I don't feel like you've done me a personal injustice or anything. What I see is a place where you can improve your writing, so I'm pointing it out to you (critique). I hope that it will help you next time you are writing for class or another purpose. I know you didn't ask for critique, but I hope you'll forgive me this observation.

I'll admit, I take essay writing more seriously than most students. Learning to write essays well will benefit you in substantial, measurable ways. You'll learn how to organize your thoughts on an issue, how to argue your beliefs, and how to adjust your argument according to your audience.

The process also makes you more knowledgeable about your position and that of others. It shouldn't surprise you if, during the course of writing an essay, you adjust or even completely change your opinion on a subject during the research stage.
For those who haven't but would like to read the oral arguments and opinions from Brown v. Entertainment Merchants Association (formerly Schwarzenegger v. Entertainment Merchants Association), you can find them at the SCOTUS website.

You can find the actual oral arguments here:
Pages 1 is a title page, page 2 is a table of contents, and pages 3-61 are solid questioning. Pages 62-73 are an index, indicating a word and what page:line you can find it mentioned on (example: "Voltaire 57:25" means that Voltaire is mentioned on page 57, line 25).

Finally, you can find the Opinion of the Court here:
There are actually 4 opinions here. There is the majority opinion as written by Justice Scalia (pp 3-20). There is a concurring opinion as written by Justice Alito (pp 21-37). There are also 2 dissenting opinions written by Justices Thomas (pp 38-57) and Breyer (pp 58-76). The final pages form Appendix A (77-88) and Appendix B (pp 89-92) to Justice Breyer's opinion. These list peer-reviewed academic articles on the potential link between video games and psychological harm to children, with A supporting a link and B not supporting a link.

Also relevant: the challenged law, California Civil Code 17461746.5:
I pity you  Sad  here In europe we have these problems only in Germany

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