First Amendment Expert Considers Final Version of Utah Video Game/Movie Bill

March 25, 2009 -

Utah Gov. Jon Huntsman is now considering whether to sign into law HB 353, the Jack Thompson-conceived video game and movie bill. The Guv has until approximately April 1st to make that decision. In the meantime, the National Coalition Against Censorship, among others, has urged Huntsman to veto the measure.

Along that line, GamePolitics readers may recall that last month, when HB 353 was introduced into the Utah House by Rep. Mike Morley (R), we asked Prof. Clay Calvert, Co-Director of the Pennsylvania Center for the First Amendment at Penn State, to offer his view of the original text of the bill.

Since that time, HB 353 has been substantially amended along the way to passage by the Utah legislature. That being the case, earlier this week we asked Prof. Calvert to revisit the final version of the bill. If you'd like to refer to the subsections mentioned by Prof. Calvert, you'll find them by hitting the jump.

Prof. Calvert's analysis follows:

The [safe harbor] defense provision of [HB 353] (g)(i)(A) not only is vague (what constitutes a documented training program? What is required by Utah to count as such a program?  With whom must it be documented?  Utah?), but it actually is quite burdensome because it only works if a store affirmatively adopts such a training program.  

The defense provision of (g)(i)(B) is helpful to stores because it prevents liability in the case where a minor engages in fraud to purchase a game by using a fake ID. That's a positive step in this revised legislation (which is NOT to say the legislation itself is positive).

One major concern is turning what the bill specifically identifies as a "recommendation" into a mandatory command. The recommendation is made by a private party (presumably the ESRB) and the government now is employing it with the force of law.

 

The National Coalition Against Censorship makes a great point when it states that this bill, "by incorporating the private voluntary ratings system... constitutes an unlawful delegation of legislative authority to a non-governmental entity."

In particular, there is significant legal precedent for this point in the context of violent video game statutes.  In July 2006, a federal district court in Minnesota in the case of Entertainment Software Association v. Hatch... issued an injunction prohibiting that state from enforcing a law that fined those minors under 17 years of age for renting or purchasing video games rated AO or M by the ESRB...

 

A second major concern is that section (u)(ii) simply applies if one "provides that good or service to a buyer subject to the age restriction or recommendation." The law could be improved if it applied to one who "provides that good or service to buyer knowing the age restriction or recommendation on the good or service AND knowing that the buyer is under the age of the restriction or recommendation." 

 

HB 353 - offense defined:

(1) 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 provide a good or service labeled with an age restriction or recommendation to a buyer subject to the age restriction or recommendation; and

    (ii) except as provided under Subsection (2)(g), provides that good or service to a buyer subject to the age restriction or recommendation....

HB 353 - defenses:

(g) (i) A person does not commit deceptive trade practices under Subsection (1)(u) if:

 

(A) at the time a good or service labeled with an age restriction or recommendation was provided to a buyer subject to the age restriction or recommendation:

 

(I) the person has a documented program to train an employee on the person's policie against providing the good or service labeled with an age restriction or recommendation to a buyer subject to the age restriction or recommendation;

 

(II) the employee who provided the good or service attended the training program described in Subsection (2)(g)(i)(A)(I) within 30 days of commencing duties of selling the good or service; and

 

(III) the person took appropriate remedial action, including retraining the employee; or

 

(B) the buyer intentionally misrepresented the buyer's age to the person by presenting false age identification at the time good or service was provided.

 

(ii) Notwithstanding Subsection (2)(g)(i)(A), a person shall commit deceptive trade practices under Subsection (1)(u) if the employee described in Subsection (2)(g)(i)(A) provides a good or service a third or subsequent time to a buyer subject to an age restriction or recommendation.


Comments

Re: First Amendment Expert Considers Final Version of Utah ...

Putting aside the strict legal sense, I'm not sure the disclaimer described above does anything in any practical sense. For the purposes of HB353, an age recommendation is an age recommendation and no amount of disassociation by the seller from an age recommendation insulates them from liability -- not without doing something more. The only two ways for a seller to insulate themselves from the reach of HB353 beyond doubt are: (1) never advertise that they will not inappropriately provide an age-recommended or -restricted product or (2) always advertise that they will inappropriately provide an age-recommended or -restricted product. Everything else is of questionable efficacy.   

Re: First Amendment Expert Considers Final Version of Utah ...

Not to say it isn't a good idea, but is it truly "neccessary?" Although Sen. Dayton did propose but then retract an amendment which would have made the labeling of a product as age-recommended or -restricted in and of itself insufficient to satisfy the "will not provide" element of HB353, can such labeling by the manufacturer ever be properly attributed to the seller as the seller's advertising? I would think that the TIA Act doesn't work like that. The statement not to inappropriately provide has to be directly attributable to the seller before the seller can be held liable. Moreover, the ESRB rating label doesn't state anything near "do not provide." It merely recommends an age appropriate for consumption. So, even if a label could be attributed to the seller and it alone could put the seller on the hook, the ESRB's label can't do so because it can't reasonably be interpreted as the seller stating they "will not provide." 

Re: First Amendment Expert Considers Final Version of Utah ...

In a strictly legal sense it probably isn't necessary, and I'm pretty sure I've posted a breakdown on why I think that in other articles (this conversation is familiar). However, disclaimers are easy enough to implement and would completely undermine the legislation. Unfortunately it would also limit the effectiveness of the ESRB as a private rating system. Good for us, because it'd show other states why this kind of legislation is ineffective, but bad for the system as a whole.

Re: First Amendment Expert Considers Final Version of Utah ...

In every store in Utah and every video game ad, the following text (or similar) will be used:  The ESRB (and other) ratings system are provided as a guide for parents and do not necessarily reflect the policies of [Insert Store Corporation] and its affiliates.

This will be necessary since ESRB ratings are on every game.  That will totally eliminate the reach of that law, and make stores either card all or card none.

Re: First Amendment Expert Considers Final Version of Utah ...

You know, this bill isn't even what Jack wants.  He has stated in the past he wants to have all games he doesn't approve of to be banned.  He even said this as resently as this week.

Re: First Amendment Expert Considers Final Version of Utah ...

Yep. This is just the thousandth first step to accomplishing just that.

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

Re: First Amendment Expert Considers Final Version of Utah ...

What's his second step after banning all games?

My guess?.....

Create the Legion of Doom.

______________________________ Because I have NO Life... :P I introduce the following. PSN User ID: FirebirdXR (Yes, I use that moniker often) Xbox Live ID: FirebirdLR (Don't bother, It's a Silver Membership) *Limited Time Only* I put both because I

Re: First Amendment Expert Considers Final Version of Utah ...

Hawk and Animal?

Re: First Amendment Expert Considers Final Version of Utah ...

His legion will consist of Atkinson, Keith Vaz, Leland Yee, LaRouche

I need more, come on people.

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

Re: First Amendment Expert Considers Final Version of Utah ...

 

Don't forget PETA.  If Blagoeivich isn't impeach, he could make a great member of that legion of doom.  Let's not forget Craig Anderson, Brad Bushman, and Dave Grossman.  They should be part of the Legion of Doom.  I can see it now

 

Somewhere in the Florida swamp of the Everglades.  A big dome building rise out

In the dome, Jack Thompson and the legion speaks out about how to take down video game industry and gamers everywhere.

JT-Today folks, we need plans to take down video game, any suggestions.

Yee-We tried the video game are used by the army, but they denied it and have proof of it.

Eagle Forum member-We tried using studies from APA about violent video game and minds.  But Ferguson and those scum couples, Olson and Kutner manage to reach out to the parent, Damn them.  Also, that tech blogger mother also reach out to the parents and opposed to the Utah bill which Jack wrote up.  It was your fault Anderson.

Anderson-Me, blame it on Grossman

Grossman-Fuck you, old men.  It wasn't my fault.

JT-OK OK, shut up you 2, we need a plan.  We need something.

Vaz-the good news Germany is blaming the recent school shooting on video game.

JT-ah yes, I heard about it.  Germany should be our allied, just like England.

Vaz-Right, chaps.

Laroache-I got an idea.  Have you guys heard of Japanese manga and anime?

JT-Yeah, those things are murder simulator just like video game.  They're worse then video game.  They turn people into the lowest scum of the universe beyond gamers.

Vaz-Yeah, I manage to find out that rape game, Rapeplay is connected to anime and hentai and manga.

Laroache-Are you aware on Youtube, there are anime haters.  I found out they are young kids and even most gamers hate anime/manga also.

Grossman-You're right.  Let's not forget about how Batman became a anime, you know Gotham Knights.  Also, I recalled Xbox Live Video Marketplace and PSN Video store sells anime, I even heard the PSP will have manga soon.

JT-So there is a way to reach out to anime haters everywhere.  We can have them hate video game.

Vaz-That's true.  I remember the next GTA will take place in tokyo, Japan.  It's said that it'll be drawn in anime style.  We can reach out to them, we can take them to the dark side you know like Anakin Skywalker became Darth Vader.  If they want anime ban, they'll have to give up video game.

JT-Ladies and Gentleman, we found a way to both ban anime and video game and manga.  We have to reach out to anime haters, we have to convince them that the video game industry are using anime to create armies of anime loving freaks.  They'll give up video game and have no choice to side with us they will hate video game for us.  In return, we will have legions of youngsters who will tell us why video game are evil.  They'll convert to video game haters just because of that.  Also we'll have them lie to congress about how video game do really make you violent.  Then after that, when another school shooting happen, we'll blame it on anime and manga.  I found out about Battle Royale.  We can blame that for school shooting.

Anderson-What about Serial Killers?

Bushman-I found a anime and manga series that we can put the blame it's called Higarushi No Naku Koro Ni (When they cry-Higarushi).  This has a  lot of serial killers like motive in this one.

JT-Excellent, fellow legions of Doom member, we have our plan.  All we have to do is reach out to the haters.  If they can hate Batman just because it become a anime, they will hate video game also.  I think I met several anime haters online I can convince them,  I'll start with JuanJosepedrosmith, and animesuckdick.  They're side with me. 

 

just outside the Legion of Doom dome mdo7, legendarygamers, and da gamer elite observed from outside and use directional microphone to recorded the meeting.

mdo7-damn it, I was correct.  This is what they want, have anime haters into video game haters.

da gamer elite-oh no, those trolls online will become zealots for JT's army.

Legendarygamers-What do we do??

mdo7-I'm trying to figure that out.  I don't think using my JT comparison won't work anymore.   

 

 

Re: First Amendment Expert Considers Final Version of Utah ...

Sounds like a bitchin' start to a Saturday Morning Cartoon.

We need heroes now, stat!!!

(Wait.... where the Hell were we?!)

______________________________ Because I have NO Life... :P I introduce the following. PSN User ID: FirebirdXR (Yes, I use that moniker often) Xbox Live ID: FirebirdLR (Don't bother, It's a Silver Membership) *Limited Time Only* I put both because I

Re: First Amendment Expert Considers Final Version of Utah ...

Gayle Ruzicka and her Eagle Forum henchmen.

Re: First Amendment Expert Considers Final Version of Utah ...

"Create the Legion of Doom."

 

In which case superman and the superfriends will finaly have a reason beat poor Jackie to the ground!

Heroic Brutality style: http://www.youtube.com/watch?v=dBnEeRtD1Mo&feature=related

http://www.magicinkgaming.com/

Re: First Amendment Expert Considers Final Version of Utah

I would love to see this bill ironically result in stores completely giving up on voluntary enforcement of ESRB age-restrictions on purchases for fear of punitive liability. There would be no sweeter poetic justice than seeing this unconstitutional law completely and utterly backfire.

CounterfeitCulture.com: Gaming news and commentary for the socially-adjusted nerd.

CounterfeitCulture.com: Gaming news and commentary for the socially-adjusted nerd.

Re: First Amendment Expert Considers Final Version of Utah ...

I'm not so sure that the "an unlawful delegation of legislative authority to a non-governmental entity" argument withstands thoughtful opposition. Advertising is voluntary. No one's twisting a seller's arm in order to have them state that "they will not provide" on the basis of the ESRB's rating system and, in so stating, subject themselves to liability. Theoretically, all sellers could collectively cease to make any statements in relation to the ESRB's rating system. Let's assume they do just that. Where's the delegation of legislative authority? There is none, because the ESRB's rating system would, as a practical matter, become entirely irrelevant. This circumstance is entirely distinguishable from ESA v. Hatch because in Hatch there was nothing the sellers could do or not do to affect their liability for inappropriately selling an ESRB-rated product while in this case, if the sellers don't advertise, then the ESRB rating system is rendered inconsequential and, as such, cannot operate as a legislative authority. I can't see the unlawful delegation when the sellers can simply opt out from the legislative authority.     

Re: First Amendment Expert Considers Final Version of Utah ...

Here's a thought: just change ESRB marketing materials to state that the rating system is purely educational and intended to inform buyers of appropriate age recommendations, and no retailer is required to conform to or enforce those age recommendations. Removal of accountability while still keeping the system within the parameters of the legislation is still entirely plausible, it just puts responsibility on the buyer to purchase intelligently.

Re: First Amendment Expert Considers Final Version of Utah ...

Well that's what makes this a horrible piece of legislation. If stores do continue to advertise the ESRB ratings and enforcments then this does do as they say and forces "an unlawful delegation of legislative authority to a non-governmental entity". If, however, stores decide to stop advertising the ESRB rating system all together this legislation will have just comepletley undermined all the work and effort over the past decade or more into providing tools to help parents keep mature games away from kids.

So they're basically either going to force a voluntary, non-government ratings system as law or take out any roadblocks that would've otherwise stopped an underage buyer from getting an M-rated game...and it's all for the children.

 

Re: First Amendment Expert Considers Final Version of Utah

But HB353 is probably flawed, I mean that's not going to help some minor committing a scheme to get it, And im neutral in the descision whetler for the bill to pass or not, But if it did pass, I wanted to see honeycake's send Den Den an harrassing email gloating on how he "Did it" and get a good laugh, If it failed, It be the same result in which JT would be pissed and then he start his usual lying and fraud-talk, Either way, I really want a laugh.

Magic Taco

Re: First Amendment Expert Considers Final Version of Utah ...

On a side note, Utah was listed as the #1 purchaser of online pornography in the nation...but turning your kids into sexual deviants and increasing teenage pregnancy and STD's is okay.  Jack Thompson won't touch that.

Re: First Amendment Expert Considers Final Version of Utah ...

Prove that pornography does either of those things.

No, Luke, I AM the Walrus

No, Luke, I AM the Walrus

Re: First Amendment Expert Considers Final Version of Utah ...

Well, I believe because Jack is a gay porn consumer, so I believe the numbers fit somehow with the drop of gay porn in Miami lol

The cynical side of videogames (spanish only): http://thelostlevel.blogspot.com/ My DeviantArt Page (aka DeviantCensorship): http://www.darkknightstrikes.deviantart.com/

Re: First Amendment Expert Considers Final Version of Utah ...

Well, I'm pretty sure Jack's hiding something through overcompensation.

- He sure seems to know a lot about explicit gay porn.

- His religious beliefs are that homosexuality is utterly evil and can be "caught" through gay recruitment or simply viewing gay content (he has stated as much in the past).

- He is seemingly obsessed with homosexuality and his "other" crusades include limiting the rights of gays. This is in-line with his statements that two boys kissing equates to gay sex.

 

This all adds up in my theory that he is a closet homosexual turning to religion as a means to find a "cure".  Just my theory- he doth protest too much...

Re: First Amendment Expert Considers Final Version of Utah ...

True.  I always thought he sounded a little "light in the loafers," if you know what I mean.  And having seen him in person, he does have sort of a mincing way about him.  Considering the antics of such people like Eliot Spitzer, Ted Stevens, and others who rail against what they hate so much and are then caught themsleves doing what they claim to despise, I wouldn't be surprised on the day when Jack is *ahem* "outed."  You know what they say, sinners pray the loudest.

Re: First Amendment Expert Considers Final Version of Utah ...

Not suprising.  Overt religious sexual repression usually does that. 

Re: First Amendment Expert Considers Final Version of Utah ...

IDK, there's still the Janet Reno business.

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