September 17, 2007
Today is Constitution Day in the United States.While it's not an official, sleep-late-and-stay-home holiday, here at GamePolitics we plan to celebrate by focusing on how the U.S. Constitution has, so far, protected video games from government censorship. We'll start with a terrific article by attorney Julie Hilden over at FindLaw.
Hilden, a Yale Law grad and former First Amendment specialist, writes about the recent overturning of California's 2005 video game law by U.S. District Court Judge Ronald Whyte:
Simply calling video games "violent" attempts to blur reality and fiction; video games obviously are not violent in the sense, say, dogfighting is. They depict violence, rather than actually perpetrating it.
Calling video games "violent," then, is much like calling a Barbie doll "anorexic." The real concern is that the games promote violence, and the dolls promote anorexia.
What might seem to be innocuous shorthand, however, cloaks the need to provide evidence of a link between the violence depicted in the video games and actual violence committed by those playing the games - the very kind of evidence Judge Whyte looked for, and did not find, when he struck down the California statute...
[The] "psychological conditioning" argument makes a poor fit with First Amendment law, because it tends to see us not as the First Amendment sees us - as thinkers... but as reflexive actors, responding to stimuli without conscious choice or mental mediation... No wonder, then, that the California legislature, in drafting the "violent" video game statute, borrowed heavily from the classic legal test for material that is deemed obscene-as-to-minors...
The video game statute closely tracks the Miller test's three prongs... outside the obscenity context, Supreme Court First Amendment doctrine looks with great disfavor at government regulation of speech based on its content.
Comments
She is very correct though, in that the First Amendment law takes, or should take, into account our differences as individuals, hence the need to protect ALL speech, including unpopular speech as well as popular accepted speech. Much of the psychology used takes into account a grouping of individuals, but not specifics of the individuals. As I mentioned in another article, some politicians, among others, look at video games, say "they are violent, therefore, anyone who plays them will be violent, hence they are dangerous and the First Amendment doesn't protect them". Such arguments neither take into account individual games (the specific products) nor do they take into account the complexity of individual Humans. They don't take into account the various emotions an individual will feel, especially when those feelings are not the same as other individuals. Nor do they take into account the personaility differences of each individual, which also plays a part in relation to what emotions are felt. Nor do the arguments take into account the differences in how an individuals preceives what occurs in reality versus fiction. The arguments simply say "it's violent, so it's bad for you".
Nightwng2000
NW2K Software
Interesting, you used "and" instead of "such as." I can see it now:
Press Release
Pixelantes admit Anti-Video Game Crusader is not an Idiot!
PS: I have no respect for the military or the troops!
I will have to agree with Oni and Neko. The ESRB does not censor games. They never have. If the developer recieved an AO rating, they can release it like that. they just have limited methods to do so, caused by console liscensing and retail policies. If the ESRB had the power to ban games as the BBFC does then your argument would have merit. But alas, your argument fails.
E. Zachary Knight
Divine Knight Gaming
Random Tower: Game News and Commentary
Go away.
@spartanmichael:
By the time I hit the submit button a dozen people will have already said this, but I'll go ahead and repeat it anyway: the ESRB only RATES the games. Unless your real argument is that they're intentionally slapping 'AO' on titles so console manufacturers will refuse them, the ESRB has nothing to do with censorship. It's the Big Three and most major retailers that won't take 'AO' games.
And please don't tell us to look it up since the last time you told us to look up something was the source of that "art is something which is beautiful or true" quote and I'm still not able to find out who said that...
Jack Thompson
JT
Hack Thompson
Jacky Boy
John Bruce
Jackass
The more he finds these, the more his ego expands. He loves to make the number of time his name is repeated grow.
But you must admit, it is fun to refute him. Although pointless. After all, don't you practice debating real people by debating fake people?
E. Zachary Knight
Divine Knight Gaming
Random Tower: Game News and Commentary
"I am UK based so you people on the other side of the pond will have to tell me if any major or local news outlets have been singing the praises of the people who are drafting and appealing these laws"
We get the odd story in the media, I wouldn't say the media sings their praises, but if you look back on Gamepolitics archives a few days (weeks?) you'll find a reference to a San Jose Mercury Editorial that very much wants to see games regulated "for the children."
"because from the outside looking in, it just seems like a money wasting issue that will backfire during any election campaign."
It *is* an inordinate waste of money. It will not backfire during campaigns, because the "for the children" line sells tickets. In advertising campaigns, there's a fabulous suspension of disbelief - that these things being promised in the ad won't cost you anything, and all you have to do is vote for the candidate.
In short this is, and will probably continue to be for awhile, a great way for an elected official to get the state to pay to advertise his campaign.
Just like Hitler's boys did! And if anyone mentions Godwin's Law i'll spam this page unto death.
But what are they gaining? You have yet to answer that. Getting someone off your back is not a gain. So again What would they gain?
E. Zachary Knight
Divine Knight Gaming
Random Tower: Game News and Commentary
@ E. Zachary - It's not her real address...just making fun of JT's email.
Sigh...either you guys don't get it, or my complete and utter lack of sleep is catching up to me today.
What a nerd.
"I was talking about why the esrb would wrongly give games like the uncut version of Manhunt 2 the AO rating."
Tell me how the ESRB's decision to give Manhunt2 an AO rating was wrong. It has been said time and time again that the AO rating is NOT only for sexual material. The ESRB has standards for violent content aswell, and an extreme enough amount of violence is enough to warrent an AO rating... it happened to the un-released game "thrill kill", and it happened to "the punisher" before it was also taken back and edited. By giving manhunt2 the AO rating, the ESRB was only doing its job, which is to rate games based upon it's standards. Manhunt2 got an AO rating based on the vilence standards of the ESRB; a rating that seems rather fitting based on what writers are saying about the previews, saying that the game is the most violent they have ever seen. The ESRB can not just lower their standards just to let a game pass as M-rated; that would be dishonest and unprofessional.
I've boxed, kick-boxed, and wrestled. Those sports are not barbaric like dog-fighting, because both myself and my partner go onto the mat willingly, it ends when we want it to, and we avoid stuff like hits to the throat or back of the head that can cause serious injury. Dog-fighting is sick, sending innocent animals to die for some scumbag's amusement. Meanwhile, comparing the various martial arts sports to video games is laughable. As a fighter and a video gamer, I confidently say games are completely non-violent. No matter how interactive, I know they are just characters on a screen, and that it is a fictional story. The gulf between violence in video games and violent sports is bigger than the gulf between the sports and actual violence.
Go Julie!
First of all, these laws are trying to prevent sales of M-rated games to minors, something that hardly ever happens. Look at the numbers:
The ESA and FTC report that 90% of M-rated game sales are to parents. The NPD estimates M-rated games make up only 15% of game sales. And the FTC says minors trying to purchase M-rated games are refused over half the time. The small percentage of minors actually managing to purchase M-rated games are probably 15 or 16-years-old anyway so what’s the point?
How would you enforce these laws anyway? Think about it? Who would be pursuing legal action? The store? The kid? Yeah right. Mom or Dad? They either know or don’t care. And who would decide if the game falls under the law’s definition of too darn violent? Are we going to have a jury trial or something every single time someone complains about a sale?
There’s also the fact that violent games don’t harm anyone or cause them to be violent. Despite what some may tell you, there are no credible studies that support that claim. Sure there are a few that say violent video games appear to contribute to short-term aggressive thoughts and behavior but that doesn’t mean much does it?
Then you have the chilling effect on speech where retailers will stop carrying certain titles and developers will stop developing titles with certain themes and such. There’s the negative impact on parenting to consider. Bad parents will use this law as an excuse to be even more lazy and neglectful and good parents will have lost some of there parental options.
These laws are a crock. If violent games are so harmful then why are we wasting time legislating sales? I mean, playing the game is the problem right? If you truly believe these games psychologically damage children, why aren’t you pushing legislation that would categorize facilitating such a game to a minor a form of child abuse?
Andrew Eisen
The test should be refuted, forthright. Individual liberty and sweeping assumptions about "morally obscene" subjects are not ideals easily reconciled with one another.
@Andrew Eisen
Well said.
Like I've been posting, if you're going to infringe on a Constitutional right like freedom of speech based on the claim that the speech in question is "dangerous", then you better damn well show absolute proof of that. It's NEVER been done. There is no proof that any harm will come of anyone playing a "violent" video game.
If there is a danger so clear and so threatening to the American people that causes these self-righteous politicians to step on the First Amendment, wouldn’t any rational thinking person have to believe that the danger would have to be so obvious and clear that there would be no argument against it? Especially since you’re directly contradicting a Constitutional amendment.
We, the American people, have not been given any valid reason to believe that this abridging of our freedom of speech is necessary. There just simply isn’t any evidence at all of any danger from “violent” video games. This “protection” from “violent” video games isn’t needed, but please feel free to use everyone's tax dollars for protection from things like a 10-foot storm surge from a Category 3 to 5 hurricane or the fuselage of a 747 airplane entering the workplace.
The ESA and FTC report that 90% of M-rated game sales are to parents. The NPD estimates M-rated games make up only 15% of game sales. And the FTC says minors trying to purchase M-rated games are refused over half the time.
Let's see....15% of total sales, 10% of that is 1.5% and 42% of that is 0.63% of all game sales.
This just continues to show how much of a lost cause this "issue" really is, since the other side has to rely on McCarthyist fearmongering.
Personally im tired of people suggesting this person and that person debate jack. We have found many times in the past that jack is incapable of a well mannered mature debate.
Besides the fact he's living filth and the less anyone has to do with him the better.
Julie makes some good points here, i doubt anyone on the other side of the fence will take note though.
Julie Hilden, for that wonderful piece of beautiful insight, I hereby congratulate you and reward you with a brief round of applause *clap*
... and a cookie.
Isn't it also unconstitutional for a PRIVATE rating system (ESRB) to be used to dictate PUBLIC laws?
Honestly, after reading this, I have nothing but respect for her.
The First Amendment is limited by content concerns all the time, as there are 20 or more content-related restrictions upon the reach of the First Amendment, including "sexual material harmful to minors" statutes.
Just ask this ditz for her ACLU membership card next time. That says it all.
Jack Thompson, Attorney (and you're not)
September 17th, 2007 at 8:49 am
I would like to see her in a debate with Jack Thompson…but then again he would chicken out.
@Andrew Eisen
Well said.
I'LL DEBATE HER ANYPLACE, ANYTIME. Somebody just set it up.
Jack Thompson is a chicken? I don't think so. PAX 2007 chickened out, not I. Check your facts, kids.
Anyway, set it up, Dennis. Jack Thompson
GP: Set it up yourself, you've got a lot of free time, apparently. Besides, I'd rather see Lawrence Tribe dismember your arguments (see next article)... after all, you're the guy who claimed games weren't even speech. You told the Louisiana legislature that a video game was a "device."
Judging by the fact that you see common sense as silliness, that says a lot for this analysis! Oh, and you forgot to say 'hooah'.
I also am glad that more people with legal and political backgrounds are supporting Judge Whyte's decision to over turn this unconstitutional bill.
@ Zero Dash
The Cali bill did not use the ESRB rating as a guide. It used a variant of the miller test. There have been a couple of bills that used the ESRB ratings, but this one was not one of them.
@ Andrew and Nightwing
I agree whole heartedly with what you have said.
In the end, I hope that the common sense and intelligence continues to spread and we see more of these types of responses.
E. Zachary Knight
Divine Knight Gaming
Random Tower: Game News and Commentary
This action needs to be done now so we would not have to worry about the esrb messing with our games in the future.
That means this topic is going to get 100+ responses already and there's no reason for me to say anything because everyone else will undoubtedly say it for me.
*sigh*
Alright, and next year, I'll ask you for your legal licens- oops, my bad! You won't have one! I wonder why...?
@spartanmichael
And it's comments like his that piss me off. Oh man, you should've seen it at GameSpot. The ESRB are NOT VIOLATING any Constitutional rights. So stop bitching and be thankful we have them; otherwise, we'd have way more problems than we do now.
Personally, I'd like to see our side of the story get a little more attention.
I wouldn't mind being on MSNBC or Attack of the Show, or X-Play, or something, even if it was just for like, a 5-minute segment about VG violence. I've got an opinion, I'm ready to send it out through the air waves:
Video games, in my opinion, are entirely innocent. They're a form of media, I consider them art, and above all I think that they don't influence or cause violence directly. Indirectly, maybe, but they can't be used -ever- as a source of a crime or something.
Another statement, people that say "Video Games made me do it" should have no case against a video game whatsoever. Not only is that the most irresponsible and ignorant reason for a lawsuit and court case I've ever heard, it's also impossible to get a solid basis on. I see blog posts, all the time, of teenagers being arrested, and then saying a random violent first person shooter made them do it. Video games do not make you do anything! What you do with your life is your own decision, blaming it on video games is just like blaming Barry Bonds because you hit a baseball and broke someone's window.
The problem I see lies with the parents. They're too unwilling to actually look over their child's video games, if one seems questionable, actually pull it out and try it for yourself. Be sure to inform your kids that they shouldn't do anything they see in Video Games. That also applies to movies.
My own question: Why is everybody so sensitive? If people kiss in a movie it's considered a touching moment, if people kiss in a video game it's considered pornography. Why? What exactly is so wrong with digital people kissing? Furthermore, why are you all letting your kids play that game to begin with? Even if little Timmy says it's okay, or the violence isn't as bad as it looks, don't take -his- word for it. If you want to, buy the game, try it out, if it's too violent, then take it back. That's an easy way to do it. An easy way that noboody has even given a second look at.
Lastly, if a parent is going to buy the M-rated game, it's their responsibility for making sure it's safe for their children. I'm quite sure more than half of the mothers who say the store sold the game to their kids bought it for them in the first place. So what's the store supposed to do? Not sell it to -you- thinking you might have a kid hidden somewhere? You may as well just stop selling video games altogether and watch the American economy plummet.
Yes, yes, we know that,given the opportunity, you would burn the US Constitution and re-write it to create a theocratic dictatorship with you at the helm where Freedom of Speech protects ONLY what YOU dictate should be acceptable and nothing else.
Reminds me of those exceptionally dumbarse comments that have been made by some individuals who support the Iraq Occupation by saying "we're overseas fighting for your freedoms, so shut up complaining about your government!"
Nightwng2000
NW2K Software
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances."
I wonder what all falls under "Speech"? Given how Video games are being treated like speech, I guess they -are- under the category 'speech', then.
If Video Games weren't protected under First Amendment rights, Jack, you'd have no case. Why? They wouldn't be considered speech.
Please do consider a change of strategy.
- KitsuFox
Evidently you are the one that needs to stop bitching until you get your facts straight. The esrb is the only way to get a rating for video games to be on store shelves and yet they they give a game like Manhunt 2 the AO rating just for violence by which the consoles will not allow the uncut game.
The esrb should know that no matter what rating you give a game a kid could easily play the game. When the esrb knows the consoles do not allow the AO rated games they take that to the advantage and threaten the game producers that if they do not censor their game that they will give the game the AO rating instead of the M rating. We cannot expect that much violence from video games because the esrb is violating the 1st Amendment.
Just because you do not understand the US Constitution, does not mean that every one misunderstands it.
You sir cannot understand logic and reason and there for fail to grasp the point this woman presents. The First Amendment has been decided to not protect speech that is an immediate danger to the populous. This means that yelling "Fire!" in a crowded theatre is not protected because people can be hurt in the panic. It also does not protect specific threats or advising people to harm others. Such as someone running an article actually telling people to kill a certain person or group of people.
Video game violence has not been proven to be an immediate threat to the safety of the populous. Neither has it been proven to be a long term threat. It probably never will be. So until then video games are protected under the First Ammednment.
Only someone such as your self cannot understand that.
E. Zachary Knight
Divine Knight Gaming
Random Tower: Game News and Commentary
Says the person who continually supports ancient debunked studies.
"Just ask this ditz for her ACLU membership card next time. That says it all."
Going the 'dumb blond' route, are we Mr. Thompson? How typically stereotypical of you.
"Jack Thompson, Attorney (and you’re not)"
Again with flaunting your occupation like its a badge of honor and helps your arguement. How childish.
David Gagnon, Math Major, and you're not.
See? I can do it too. Doesn't make me sound any more credible than i already do, does it? At least i don't post completely irrelevent press releases on the article like you do, trying to derail a subject and make it all about you.
Get a life.
"This is one of the silliest analyses(sic) on the subject I have ever read."
"Just ask this ditz for her ACLU membership card next time. That says it all."
Jack Thompson, Attorney (and you’re not)"
Maybe I'm not, but the person you so maturely referred to as a ditz, IS. And she just made your argument her bitch.
Who else but Jack could see common sense and define it as "silliness"? THAT says it all, really.
And Jack, it's spelled "Analysis". At least try and spell check now and then.
I think you misunderstand the purpose of the ESRB. What would the ESRB have to gain from forcing a game developer to censor their own game? Answer: Nothing. They do not get kick backs from the console manufacturers or retailers. The retailers decided after the acceptance of the ESRB by the video game industry to only allow rated games. If a retailer wanted to change what rating they want to use, they are free to do so. They have nothing to bind them to the ESRB system, besides wide spread industry acceptance of those ratings.
You act as if the ESRB rating is compulsary and not voluntary. A game developer does not need a rating. But if they want a game released on a console, they need to follow the liscense agreement with the console manufacturer. If they want the game sold in stores they need to follow store policies. There are no preset rules regarding getting a rating from the ESRB besides a fee.
I will say this again in case you missed it the first time. The ESRB has nothing to gain from forcing a developer to censor their game. If they did that, thye would lose all credibility with the industry and fail.
E. Zachary Knight
Divine Knight Gaming
Random Tower: Game News and Commentary
With so many people making clear that the First (and 11th) amendment prevents these laws, and one would presume there are legally superior minds to Jack looking out for those who draft these laws, I have to wonder what the long term aims are for persisting with them. So far I am yet to see any real positive coverage of these laws, even if the coverage of violent games has been negative.
I am UK based so you people on the other side of the pond will have to tell me if any major or local news outlets have been singing the praises of the people who are drafting and appealing these laws because from the outside looking in, it just seems like a money wasting issue that will backfire during any election campaign. Given the sheer volume of debt the US is in right now and that taxes seem to be one of the most debated issues (aside from the war and health insurance) on any US News we see here, is there any actual politcal profit to be made from flogging this dead horse?
First, my family reserves a special word for Lawyers. We call them Shitheads(We also reserve this for David Cameron and the Daily Mail).
Second, you have proven time and again to be less mature than a two year old, let alone a Graduate. Logic would state your intelligence follows suit.
Third, Fuck off.
Could you please share those 20 or so content based restrictions on the First Amendment pelase?
E. Zachary Knight
Divine Knight Gaming
Random Tower: Game News and Commentary
Actually analyses is the plural of analysis and he is quite correct with his spelling and context there (even if what he actually had to say was completely idiotic).
This woman said some very sensible things. I especially like the part about the anti-game laws treating us like mindless animals. We're all supposed to be rational adults who can make our own decisions, and yet these laws treat us like children.
"This is one of the silliest analyses on the subject I have ever read.
The First Amendment is limited by content concerns all the time, as there are 20 or more content-related restrictions upon the reach of the First Amendment, including “sexual material harmful to minors” statutes."
...and if you'd actually read the article, you'd have found that she argues that the Supreme Court made a mistake in allowing obscenity laws. So it's not like she's unaware that these restrictions exist. She also mentions another restriction - advocacy of imminent violence - which she has no problem with. She just doesn't think games or movies depicting violent fall into the same category, for some very good reasons IMO (specifically, the difference between depicting something and advocating it).
your ignorance is dangerous. please educate yourself before you wind up practising faux law in Miami.