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

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.

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