How Gamer Scored Face Time with Supreme Court Justice
How Gamer Scored Face Time with Supreme Court Justice
February 21, 2008
A story on yesterday's edition of GamePolitics which detailed Supreme Court Justice Antonin Scalia's view that video game legislation might actually pass constitutional muster generated a bit of an uproar.Based on the game industry's perfect 9-0 record in lower federal court cases to date, the assumption has been that such laws were predestined to fail on free speech grounds.
GP picked the story up from the Laws of Play blog, where author Anthony Prestia originally detailed his remarkable encounter with the very conservative Justice Scalia. Because Prestia and his site are not well known, readers were curious as to how the story came about. We put the question to Prestia last night, who graciously explained:
I'm a law student in Washington, DC and I have a professor who has been friends with Justice Scalia for a long time. He set up an appointment for a small group of us (around 20 or so) to watch a Supreme Court argument followed by a private audience with Justice Scalia in the Supreme Court's west conference room.
It was a great opportunity considering there were so few of us and Scalia doesn't typically do "interviews"--he's notoriously critical of turning the Court into "entertainment." Being an avid gamer and occasional blogger, I decided to take the opportunity to ask him about gaming legislation.
He was surprisingly friendly and humorous. Living in DC all you typically hear are Scalia horror stories, but I was surprised how down to earth he was... I was shocked to see my name when I loaded [GamePolitics] up this morning!
Prestia also told GP that he expects to graduate with a J.D. in 2009 and is the executive editor-elect of the American Intellectual Property Law Quarterly Journal.
Meanwhile, conservative attorney Adam Thierer, writing for the Technology Liberation Front, sees constitutional problems with Scalia's view:
Scalia’s latter comments imply that even older, more conservative judges are coming around to understanding how video games are a form of artistic expression deserving the protection of the First Amendment...
Scalia is certainly correct that states have passed laws banning the sale of pornographic material to minors, but there are two important differences... One is obvious: No video game has ever been defined as “obscene to minors.” ...for now, the primary concern about video games to sales has related to the violence... And violence has never been equated with obscenity...
The second difference Scalia ignores is the mechanism of controlling the sale of video games to children. Every legislature... has proposed that the bans be linked to the [ESRB rating] ...And every one of those measures has been struck down by the courts... because other court precedents have held that the state may not give a private, voluntary rating system the force of law.
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Comments
I was addressing the incorrect claim that all the failed laws were based on the ESRB ratings, not implying that their Constitutional validity hinges on that point.
To keep this post on topic, it's certainly good to hear a fellow conservative find fault with Scalia's statement. (Yes, I'm Republican, but only because there isn't a Common-Sense party! :D )
I refer people to my comment on the original article. Nice to see it backed up by someone in the know.
Reminds me of a quote I read a little bit ago:
"90% of all politicians give the other 10% a bad name."
"Every legislature that has so far sought to regulate the sale of video games has proposed that the bans been linked to the sale of games rated a certain way by the game industry’s private rating body, the Entertainment Software Rating Board (ESRB)."
This is not correct. Most of them have been based on independent standards of violence and sexuality, with no regard to the game's ESRB rating. That they failed in spite of not having this additional Constitutional hazard testifies to their inherent unconstitutionality.
That it failed elsewhere as well as on this constitutional matter is not relevent to the point he is making. If a kettle leaks boiling water, that it also has a cracked handle doesn't matter when it comes to classing it as broken.
As for the discussion on the Judge's stance...it sounds very unlikely that, even if his opinion were shared across the board, any of the videogame laws already cast down would pass them. And even if someone somehow (illegally) decides that certain degrees of violence equate to porn, can we think of more than a handful of games, most not industry-made or else in limited distribution, that even MIGHT qualify?
I think that even Justice Scalia, (one of) the most conservative of the Judges, would find the current videogame law attempts unconstitutional and the games they attempt to equate to porn so far from meriting that classification that the laws never should have made it to federal courts.
Oh, wait...they haven't. I'm sure he would agree with the reasons for that, should he ever be required to oversee a similar case.
As soon as we start fighting back and proving that games are the premier form of enteratinment, and educating parents undoubtedly that gaming isn't just for children anymore then gaming will really become mainstream. It's already beginning, look at the penetration of the Wii and the DS in people that would never have played games before.
We just need FOX and Jack 'Massacre Chaser' Thompson, and other equally close minded critics to STFU and stop putting games in a bad light. Maybe with lawyers like Mr. Prestia on our side we'll start seeing some changes! :D
However, no M-rated game has ever been found to be obscene by the standards of other media.
Why don't you guys actually campaign *for* it instead of against it? The law gets passed, there are no changes to your lives, and you leave John Bruce Thompson and all the other anti-gamers without a leg to stand on ...
Just a thought. Use it; don't use it ... whatevs.
this is what I am yammering for here
http://forums.theeca.com/showthread.php?p=69233#post69233
However unlike the UK system it only "labels" 18+ content and in order to do this properly it will end new unrated DVDs that are above a PG13 rating.
however crating such a law in the US would be very difficult to create, both sides would rather argue than get anything done.
You may remember when Stephen Colbert gave that famous speech at the White House Correspondents' dinner. At one point, he took a break from slamming George W. Bush and turned his attention to Justice Scalia who was sitting in the audience at the time. The cameras showed Scalia laughing his ass off at Colbert's barbs.
Just a little tidbit to throw out there.
I really hope that is the case here. I also have the felling Scalia probably though the term "mature" meant material that would fall under "obscenity to minors" laws.
@SteveUK
How do you determine inappropriate though? Some parents out there might find the Holy Bible inappropriate for their children. Some parents might find Harry Potter novels inappropriate for their children. Some parents might find speech containing liberal viewpoints inappropriate for their children and vise versa for speech containing conservative viewpoints.
In the end i believe these things should be solely determined and solely the responsibility of the parents as all parents have differing opinions of what is or isn't appropriate for their children.
If you reviewed the game and posted your restriction according to the big three, then that's 90% of the problem taken care of.
Absolutely the parents should take a bit more note of what their precious little snotflakes are doing, but to hang the whole thing over their heads is a bit unfair. Can you imagine what you would do if you had to review every single kids game out at Christmas before buying one?! My guess is you'd probably buy a different toy, and do you really want to deprive developer studios of their hard-earned cash?
To summarise: review games for sexual, violent, drug content, and make it illegal for minors to buy games they aren't old enough for.
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