Utah Legislator Officially Submits Jack Thompson Video Game Bill

Utah Rep. Mike Morley has officially introduced video game legislation drafted by disbarred Miami attorney Jack Thompson.

As GamePolitics previously reported, H.B. 353 would amend Utah’s current Truth in Advertising statute. If passed, retailers who claim that they don’t sell M-rated games to underage buyers could be held liable if they did. The measure would also apply to R-rated DVDs as well as tickets to R-rated movies.

The language of the amendment has changed slightly from that which GP reported on Sunday. It now reads:

[Deceptive trade practices occur when, in the course of a person’s business, vocation, or occupation that person:]

 

(u) (i) advertises that the person will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation; and (ii) sells that good or service to a person under the age restriction or recommendation.

For his part, Thompson issued a press release this morning which says that the purpose of the bill is to "punish major American retailers who falsely claim they do not sell Mature-rated video games and R-rated movies and movie tickets to kids under 17."

While Thompson claims that H.B. 353 has no free speech implications, that remains to be seen; the bill clearly targets certain types of media content.

As GamePolitics readers may recall, Thompson also claimed that his 2006 Louisiana bill was constitutional (it wasn’t) and that Grand Theft Auto: Vice City was a "device," not a form of speech, (he was wrong about that, too).

So, please excuse us while wait for a real constitutional expert to weigh in.

Hearings on the proposal may begin as early as next week.

GP: Thanks to Nathaniel Edwards of LegalArcade.com for the artwork.

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65 comments

  1. 0
    JDKJ says:

    While, as you assert, Jack-O may have on the face of his legislation shifted his focus from the content of speech — and thus, I assume, why he thinks he’s avoided the First Amendment — I have some bad for him: his legislation may be facially content-neutral but it isn’t, I don’t think, content-nuetral as applied because it singles out age-restricted content. And legislation which in application isn’t content-neutral is for the purposes of the First Amendent exactly the same as legislation which isn’t facially content-nuetral and therefore triggers the same constitutional analysis as that applied to content-biased legislation.   

  2. 0
    Pierre-Olivier says:

    That’s the HUGE flaw in Thompson’s bill (if I read it right). I encountered no game shop that publicly says that they’ll check the age of the buyer. The only way to know exactly is to experience it, or hear it from someone who did experienced it.

    As for on-line sellers, if they never claim to do so (I rarely see one who does (other than the birthdate entered in the user account)) this would not affect them one bit.

    In other words, this bill can be passed, but it won’t be really effective. This bill is toothless and loudmouth (just like it’s creator).

  3. 0
    Jack Wessels says:

    God, that G4 interview once again shows how Thompson spins the facts and thinks he’s responsible for every little "victory" against his "targets."

    First off, saying the FTC found that the major retailers were selling millions of M-rated games to kids. The point he leaves out is that they’re (last I checked) better than the other industries and Gamestop in particular only allows them to be sold to minors 5% of the time. So yes, it probably is millions, but in context, it’s really not that much, considering there are 300+ million people in America, some buying 10 or more games a year. That’s a small proportion, even if you’re only including the U.S.

    Second, I see he’s yet again claiming he helped drop Take-Two’s stock down to $8. What he still fails to realize is that about, say, 95% of the stocks out there took a huge dive and we are now in a recession. Not even the makers of GTA IV are immune to the financial market.

    And finally, two little annoyances. First, he still thinks he’s getting his license back, really? Second, oh boy, you won an award from a group as crazy as yourself.

    This is essentially everything everyone always says, in fact I’ve said it all before. But it has been awhile since I’ve posted here, and I needed this.

     

    -"A fanatic is one who can’t change his mind and won’t change the subject." -Sir Winston Churchill

  4. 0
    Andrew Eisen says:

    "oh my god, Andrew Eisen replied to my comment!"

    This makes it twice in one day!  Don’t spend all those bragging rights in one place!

     

    Andrew Eisen

  5. 0
    JDKJ says:

    @Andrew:

    Which is precisely why I doubt that this piece of legislation, assuming its passage and constitutionality, is going to be the death blow to the videogame industry that Thompson apparently thinks it is.

    Under the statute, the damages that a plaintiff can collect on a successful suit are capped at either actual damages suffered or $2,000, whichever is the greater of the two. Putting aside competitors to the false advertiser (who generally are the plaintiffs in false advertising suits who have claim to large amounts of actual damages in the form of lost sales and market share) and assuming, therefore, that whatever floodgates to litigation are indeed opened benefit consumers only, then I doubt that Thompson’s law would encourage a slew of litigation against videogame sellers because the consumer-plaintiff, having no real claim to substantial actual damages greater than $2,000, wouldn’t be able to collect more than $2,000. Collecting $2,000 in damages isn’t usually the kind of payday which encourages plaintiffs to sue anyone. 

    As to the constitutionality of the legislation, it does avoid the obvious pitfalls into which so many of Thompson’s previous legislative attempts fell. However, by avoiding those pitfalls, the legislation is as a practical matter so toothless and ineffective that if I were the ESA, I wouldn’t even waste my time and money raising constitutional challenges. I’d think it way more cost effective to simply pull the plug on the advertising than to pull the plug on the law if passed. 

    And pulling the plug on potentially offensive advertising would only require that the policy not state that the seller "will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation." If, for example, Target’s policy states that "while Target makes all reasonable efforts to ensure that underaged persons do not purchase age-restricted products, including requiring age verification prior to purchase, Target in no way expressly or impliedly guarantees that such purchases will not occur," then that policy cannot reasonably be construed as an advertising that Target will never inappropriately sell age-restricted products. Thereby leaving the Targets of the world free to continue whatever policies they may wish to employ while insulating themselves from liability under Jack Thompson’s idiotic Bill.           

  6. 0
    E. Zachary Knight says:

    No, they will not be liable for any suit. The stores policy is to not sell M rated games to minors without a parent present. If a parent is there giving permission to sell the game, they cannot be sued when the parent finds out that what the clerk warned them about was true.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA
    http://www.theeca.com/chapters_oklahoma


    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  7. 0
    MonkeyPeaches says:

    oh my god, Andrew Eisen replied to my comment!

    I wonder if this would apply for if a ten year old kid bought a M-rated game with their own money(birthday money or allowance), but the parent was there saying it was ok for the kid to buy it (even after being told what was in it) would the parent still be able to sue after they actually saw the gameplay with their own eyes.

  8. 0
    Andrew Eisen says:

    Okay, let’s talk Constitutionality.

    First of all, I can’t think of a "good or service labeled with an age restriction or recommendation" that is not protected speech.  I know most hardware stores have a policy not to sell spray paint to minors but, far as I know, spray paint cans don’t have a rating on them.

    So, it could be argued that this is a law that is conditionally restricting minors’ access to a form of protected speech based on its content.

    It could also be argued that this is an issue of chilling speech.  For example, developers could start censoring themselves in order to get a lower rating out of fear that some retailers might stop carrying their products instead of removing or rephrasing their M-rated game sales policy.

    It will be interesting to see what actual Constitutional experts have to say when they inevitably weigh in.

     

    Andrew Eisen

  9. 0
    Andrew Eisen says:

    From what I understand (and I’ve not read the entire statute yet), this just opens up retailers to be sued.  I don’t think fines are involved, just relief for damages suffered by the plaintiff.

     

    Andrew Eisen

  10. 0
    Michael Chandra says:

    "This scares the crap out of all of the major retailers, because it also includes all on-line sales, in which nobody is presently verifying the age of the buyers."

    Uh. But those don’t claim to verify age, right?

  11. 0
    E. Zachary Knight says:

    Quite true. This law would only effect retailers and other resellers. The ESRB would be scott free.

    I am also inclined to believe that this would have no result other than the re writing or dropping of said policies.

    Since no one can go after retailers for having had a policy publicly stated before the inacting of the law and dropping it befor ethe law goes active.

    It would also be illegal for Anyone to use this law to force retailers to make such policies as that would be entrapment and a violation of 5th Amendment rights.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA
    http://www.theeca.com/chapters_oklahoma


    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  12. 0
    Andrew Eisen says:

    Nifty.  Thanks again for the info.  I’m going to read the statute myself when I find the time (I’ve been saying that for a few days now).

     

    Andrew Eisen

  13. 0
    JDKJ says:

    I don’t think the proposed language would cover a false advertising suit against the ESRB. On my read, only sellers of a good or service would be subject. In rating videogames, the ESRB isn’t making any representations as a seller of the game. 

  14. 0
    JDKJ says:

    Actually, the statutory scheme seems to provide for that very same strategy.

    Before suit can be brought under the statute, the defendant must be given notice of suit and 10 days in which to correct the allegedly false advertising (see below). If, to again use your example, notice of suit was given to Target regarding its policy, then all Target has to do in order to avoid the suit is to revise its policy so as to no longer make the allegedly false advertising — which the Targets of the world probably won’t at all mind doing because the policy, I’d imagine, does very little to drive sales.   

    "No action for injunctive relief may be brought for a violation of this chapter unless the complaining person first gives notice of the alleged violation to the prospective defendant and provides the prospective defendant an opportunity to promulgate a correction notice by the same media as the allegedly violating advertisement. If the prospective defendant does not promulgate a correction notice within ten days of receipt of the notice, the complaining person may file a lawsuit under this chapter." (Utah Code Ann. §§ 13-11a-1(4)).

  15. 0
    Andrew Eisen says:

    Thanks for the info and from the excerpt you’ve posted, I’m inclined to agree.

    I can also foresee a lot of retailers simply dropping the policy in order to protect themselves from lawsuits in the event that some dipstick cashier sells Halo 3 to a sixteen-year-old.

     

    Andrew Eisen

  16. 0
    tollwutig says:

     Again this is John Bruce we’re talking about.   He interprets the actual fact that a Rating or Age Recommendation on the packaging constitutes a promise not sell said product to those under the age/rating posted.    This is his round about way to sue the ESRB for false advertising.

  17. 0
    JDKJ says:

    On my read of the definition provided by the Utah Truth in Advertising statute (see below), it would cover a company policy stated "in connection with the solicitation of business." To use your example, because Target’s policy is stated in the same place at which Target solicts business (i.e., its website), then I’d be inclined to believe that it is "advertising" as defined by the statute.
     

    "’Advertisement’ means any written, oral, or graphic statement or representation made by a supplier in connection with the solicitation of business. It includes, but is not limited to, communication by noncable television systems, radio, printed brochures, newspapers, leaflets, flyers, circulars, billboards, banners, or signs. It does not include any oral, in person, representation made by a sales representative to a prospective purchaser."  (Utah Code Ann. § 13-11a(2)).

    Of course and as already noted, one way to avoid running afoul of the law should Thompson’s nonsense actually become law and withstand constitutional challenge (which it won’t) is to simply retract all relevant statements and representations. If the policy is never stated, then it can’t be advertising.   

  18. 0
    Andrew Eisen says:

    Does store policy count as advertising?  Hell, you have to really be looking for it on the store’s website to find the damn thing.

    Has anyone ever seen store policy mentioned in a commercial or print ad?

    Has anyone seen a store policy that says "We WILL NOT sell M rated games to minors"?  The ones I’ve seen just say, "It’s our policy not to…"

    Here’s Target’s Policy for example.  Does that really count as an advertisement?  Again, it only took two minutes to find but I had to really look for it or I never would have seen it.

     

    Andrew Eisen

  19. 0
    BearDogg-X says:

    Something I noticed when I re-read the weekly circulation ads for Best Buy, Target, Wal-Mart, and K-Mart:

    They do not advertise their ID policy in them.

    So it just makes Thompson’s pile of garbage bill even more useless than it already is, besides unconstitutional.

    Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.


    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  20. 0
    nightwng2000 says:

    True.  And it may depend on the wording of the policy.  And as has been pointed out by many, the solution may just be to eliminate such policies.  Making a great many Parents look over at the Traitor John Bruce and go "WTF are you doing boy??!!"

    Nightwng2000

    NW2K Software

    Nightwng2000 has also updated his MySpace page: http://www.myspace.com/nightwing2000 Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as http://groups.myspace.com/pfenl

  21. 0
    nightwng2000 says:

    Everyone is thinking M rated games and R rated movies.

    Even the Traitor John Bruce is attempting to sell that point:

    "For his part, Thompson issued a press release this morning which says that the purpose of the bill is to "punish major American retailers who falsely claim they do not sell Mature-rated video games and R-rated movies and movie tickets to kids under 17.""

    There’s only one problem:

    That’s not what the bill actually says.

    "(u) (i) advertises that the person will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation; and (ii) sells that good or service to a person under the age restriction or recommendation."

    This is actually overly broad and vague.  It is easy to argue that a store having a policy that they will not sell a product or offer a service to an individual under a labeled recommended age range, may actually be in violation of that policy if they sell, for example, a T rated game to a child under the recommended age or even an E10 game to a child under the age of 10 (though why a child under the age of 10 would be alone in a store one can only imagine).  The same is true of a PG movie.

    Remember, vagueness is the stuff of legend and that which allows individuals to open the door to further restrictions beyond reasonable efforts.  It was the same with the laws regarding "Community Standards" which have been envoking numerous times to justify banning any number of written material from libraries and book stores.  Even if no actual implimentation  of enforcement occurs, just the threat tends to intimidate.  The same is true here.

    And the very hearings will envoke the arguments of "harmful to minors", which negates the argument that the bill has no say in such regards.  The use of such arguments, misleading and misinformed as they are, makes this bill actually seen as using the "harmful to minors" unconstitutional reasoning.

    Nightwng2000

    NW2K Software

    Nightwng2000 has also updated his MySpace page: http://www.myspace.com/nightwing2000 Nightwng2000 is now admin to the group "Parents For Education, Not Legislation" on MySpace as http://groups.myspace.com/pfenl

  22. 0
    1AgainstTheWorld says:

    Zombies are all violent, rage-filled individuals who want nothing more out of life than to murder non-infected.

    Especially Tanks.  They always seem to go straight for me.

  23. 0
    Father Time says:

    Anyone got the Vegas odds of this bill actually achieving anything?

    —————————————————-

    Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it’s over they have the same positions they started in.

  24. 0
    TBoneTony says:

    I would love to see the bill passed as unconstitutional, those Eagle Eye people at Utuh need to learn a major lesson about Freedom of Speech and the right for a retailer to sell a game to anyone who presents them the money to buy the product.

    Also from what I know, the Ratings System is NOT a LAW, but it is more of a GUIDE for parents who are trying to chose a game for their kids.

    But some others don’t believe that, and I think we all need to sit down and think carefully about the reason why the ESRB ratings are here in the first place.

    The ESRB ratings can’t protect children from material that their parents don’t want them to see, much like the same thing as you can’t protect a child from abuse in their own homes until it happens.

    It is up to the parents to protect their own children from things that they don’t want them to see.

    And the ESRB helps the parents to take responsibility no matter what we think is right or wrong, it is the parent who decided that for their own kids.

    Why is it that we still have a few nuts who don’t really understand that?

    Why? It is because nuts like Jack Thompson and certain groups don’t even realize that they themselves have little control over other people’s actions. And no law on earth can ever control another person’s actions.

     

  25. 0
    Adrian Lopez says:

    "(u) (i) advertises that the person will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation; and (ii) sells that good or service to a person under the age restriction or recommendation."

    How many retailers today advertise that they will not sell such products to minors, as opposed to following such a practice without advertising it? Also, how long after advertising that they don’t do so must they continue to not sell games to persons "under the age of restriction or recommendation"? Is it "advertise once and you’re forever bound", or does it stop as soon as the ad campaign is up? After all, it’s not like the case of special offers and rain checks, and besides corporations should have the right to alter their policies.

    Finally, how can you charge retailers with deceptive trade practices unless you can show that the retailers themselves are responsible for the non-enforcement of the promise to not sell particular games to minors? A misinformed or incompetent employee does not amount to fraud, after all.

  26. 0
    MonkeyPeaches says:

    Major problem with the bill, a video game rating is not a legal requirement, so I don’t see how you could give someone a fine for failing to check id for a video game, it’s not like for example tobacco products which is illegal to sell to anyone under 18 or alchol which is illegal to see to anyone under 21.

  27. 0
    Arell says:

    Ok, fine.  Zombies are allowable if they obey the "No eating of other customers" rule.  Also, no Boomers.

    Robots may also buy games, but only if they’re not Ridiculously Human Robots that have been programmed to love.

    Vampires may buy video games, but only World of Darkness vampires.  Twilight vampires are strickly banned from anywhere cool.

  28. 0
    Firebird says:

    If they have a heartbeat and cash, they’re qualified to purchase whatever is in the store.

    What do you have against zombies?

    What do you have against robots?

    Yeah…, they tend to boycott games by either shooting lasers or eating people.

    Imagine how the zombie pirate robots must feel.

    -See; Rachet and Clank: Quest for Booty (Yes, they do exist!)

    BTW, where’s the love for vampires?

  29. 0
    Kincyr says:

    If they have a heartbeat and cash, they’re qualified to purchase whatever is in the store.

    What do you have against zombies?

    What do you have against robots?

    岩「…Where do masochists go when they die?」

  30. 0
    Father Time says:

    Oh I’m starting to despise them for eating my flesh and complaining about RE5.

    —————————————————-

    Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it’s over they have the same positions they started in.

  31. 0
    JDKJ says:

    @nighstalker & EZK:

    A corporation is a "person" for the purposes of constitutional analysis. And, as a matter of fact, for the purposes of most every other sort of legal analysis. After all, a corporation is essentially a collective of persons (i.e., the corporate shareholders).   

  32. 0
    nighstalker160 says:

    Fourteenth Amendment protects individual "citizens" not companies. Equal Protection does’t apply to corporate liability, although it would if like the CEO of GameStop was sued personally.

    But yeah, there are MAJOR First Amendment issues here.

  33. 0
    sqlrob says:

    Or books.

    I really, really, really want to see it apply to books in Utah. I would then travel to the Utah office of my company and have some fun while I’m there.

     

  34. 0
    BearDogg-X says:

    Still unconstitutional on First Amendment(freedom of speech), and Fourteenth(equal protection, as this  still doesn’t cover music). Next.

    Thompson is still the Metropolitian Moron of Miami.

    Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.


    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

  35. 0
    Arell says:

    If it somehow passes, it’s no big deal.  Stores have two options.

    1.  Don’t advertize that you won’t sell to minors.  A change in language would work, too.

    2.  Abandon all policies against selling to minors.  If they have a heartbeat and cash, they’re qualified to purchase whatever is in the store.

  36. 0
    black manta says:

    The big hole in this of course is the assumption that these stores advertise that they don’t sell M-rated games or R-rated movies to minors.  The question is, when did they ever?

    Going into a Gamestop, Target, Wal-Mart, Blockbuster or Best Buy and seeing an ESRB ratings chart or going into the movie theater and seeing the MPAA’s ratings chart is not the same thing as a promise by that establishment that they will not sell products inappropriate for a certain age group.  It is simply a guideline for people to determine what content is appropriate for themselves or their children.  Yet as has been pointed out previously, Jack misconstrues that the rating itself somehow implies a promise which it doesn’t and – also as has been pointed out – would indirectly give a third party ratings system force of law.  The bill as written, cleverly doen’t explicitly state this on first read.  But after going over it a few times and giving it some thought, that is exactly what it would do.  Typical Jack tactic: state something that seems to make sense at first, hoping people won’t think about it too hard.  The problem is when these bills come under a review, they need to be picked apart and read more than once.  And once that happens, Jack’s bill will fall apart.

    I kind of figured he wouldn’t change the wording much on this bill when it came time to finally submit it.  Jack will fight tooth and nail to keep the wording on the bill exactly the way it is, just so he can take all the personal credit for it.  And will refuse the recommendations form others to change it as he hates to compromise and instead accuse them of not doing their job.  I also have no doubt that Rep. Morely got a torrent of angry emails from Jack over the weekend regarding his comments, accusing him of sabotaging whatever chances this bill had of passing.

    Oh, by the way Dennis, that mock-up poster is full of win!

  37. 0
    Vake Xeacons says:

    The wording makes it to broad for just M-rated. According to this, retailers can’t sell T games to anyone under 13, or E+10 to anyone under 10. Constitution aside, this is pure-D WRONG!

  38. 0
    sortableturnip says:

    So, businesses change the wording of their stance from "we do not sell M rated video games to children" to "we strive to prevent the sale of M rated video games to children"

     

  39. 0
    Mirrikat says:

     Where the heck are all these 14, 15, 16 year olds getting the $60 to buy a game anways? Obviously their bad parents, who should be going to the store to purchase the game with their kid… I mean.. WTF?

    (IF the kid that young has a job they are probably mature enough to handle an M rated game)

     

  40. 0
    Neeneko says:

    From the other side (i.e. the politician’s) this is probably a low risk vote getter.  It is a law that does nothing but puts a little check in the box for some report card for voting record.  Looking like you are protecting the children is more important then looking like you are wasting time and money.

  41. 0
    Jeramii says:

    I am amazed by this, being from Utah it is weird to me to see how the newspapers really do consider him some great guy. But when it comes down to it, this bill isn’t looking like it will do anything really. I think he is just trying to get his foot in the door. Of course he is taking over my home state now.

     

    At the same time, I think I would love to run into him in town somewhere and get my picture for laughs. haha.

     

    Utah- Male- 20- Owner of PS3, Wii, 360.

  42. 0
    sqlrob says:

    I don’t see that implied in the linked version of the bill. It’s an "and" not an "or"

     

      83          (u) (i) advertises that the person will not sell a good or service labeled with an age
                 84      restriction or recommendation to a person under the age restriction or recommendation; and
                 85          (ii) sells that good or service to a person under the age restriction or recommendation.

     

     

  43. 0
    tollwutig says:

     Yep with that re-write, Thompson is trying to state that even putting a rating on a movie or video game constitutes a promise not to sell it to those below the rating age recommendation.

     

    So the retailers will just have to cover the rating labels on the boxes over with a sticker stating they can’t advertise the rating.

     

    Not to mention this still doesn’t pass constitutional muster as it gives governmental authority to a non-governmental agency.

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