Lawyer Predicts SCOTUS Will Strike Down CA Law

July 13, 2010 -

Because the California law at the center of Schwarzenegger v. EMA is unable to specifically define exactly what entails a “violent” game, one practicing lawyer predicts a win for the game industry when SCOTUS eventually hands down its ruling on the legality of restricting the sale of such games to minors.

The lawyer behind The Fine Print blog notes that free speech under the First Amendment “has never been unlimited,” especially when it comes to minors. He details two of the better known exceptions:

First, child pornography is outright censored in the United States; it is illegal to make, sell, or own, no freedom whatsoever. The sale of pornography to minors is also restricted, on the theory that while adults can choose for themselves if they can “handle” pornography, children won’t know until it’s too late that something is too much for them or harmful to their well-being.

That being said, it was also argued that the California lawmakers have, so far at least, failed to “convince the courts that violent video games are a legitimate threat to children’s safety and well-being.” Additionally, it has yet to be proven that the law in question would do a better job than the current pairing of ESRB system and retailer enforcement when it comes to keeping higher rated games out of the hands of youngsters.

For all the reasons cited, the author predicts that the Supreme Court will reject the law. However, if the game industry loses, it might not be the end of the world so many have predicted:

If the Court does uphold the law, I don’t think it would be as harmful to the industry as some seem to fear. Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors. The harm would be far more philosophical than actual. The pornography industry has not been driven out of business by the lack of ability to sell to 15 year olds, neither would the game industry be crippled by the lost sales certain games might suffer.

Comments

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

I have to ask where in the single less than a paragraph 1st amednment this stuff about it being OK to ban porn sales to miniors is in the first place.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Canada has a similar method for the government to overrule our Charter of Rights and Freedoms (essentially the Canadian constitution).  Only ours is written into the charter itself.

At least it doesn't get used very often.

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Chris Kimberley

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Chris Kimberley

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

 It does not.

The problem is SCOTUS has carved out an exception called 'compelling interest' that pretty much allows them to violate the constitution whenever they feel like it.  In fact just a few days ago they ruled on a case that loosened the requirements even further..... so now in cases where 'national security' can be cited, the government does not even need to demonstrate compelling interest anymore.

So basically they have a blank check based off precedent (a fancy way of saying 'but they did it!') where they can rule constitutional or not constitutional based off personal feelings or the political winds.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

I also think it's ridiculous that we regulate porn.  But I guess that is another matter...

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Maybe gamefly can sell the uncut games and retail can get the cut ones. :P

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

That still puts more work on the developer and frankly most publishers would rather the deveopers just make the cut game.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Actually a lot of porn stores are getting squeezed by council men who are trying to "clean up their districts". Case and point, Times Square under Rudy. Porn survives mainly through mail orders and online exchanges.

Which means all that this law will do is unemploy Gamestop employees as M rated games go into a Steam-like format. As I recall, all you need is a credit card number to validate your are over 18 in the eyes of the law.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Or mail order only, sort of like how Gamefly is.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

"Essentially, unlike porn, M rated games can only thrive if they can be sold in general retail stores, like walmart, bestbuy, and so forth..."

Not necessarily sure if this is true. Can you explain why M rated games can only thrive is sold in general retail stores?

Also, I'm sure plenty of people buy their games online as well as. Who knows... If this law passes, there may even be game stores that only sell mature rated ultra violent video games.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

I think the sales of games via online pale in comparison to what is sold in retail. I mean i think it's been said that Walmart, which is not even an exclusive games store, is said to be the biggest seller of video games. i mean the only games that have been proven to thrive on online sales alone are indie games, but these games have very low budgets compared to regular games and thus do not need to make as much money to turn a profit. You take violent games out of retail stores and their sales numbers are sure to plummet... The only survivors might be absolute must have franchises like Halo; but where does that leave the newer unknown IPs?

I also seriously question stores that sell ONLY violent games... Violent games only make up a fraction of the games that come out every year; it could easily become the case that violent games are too small a niche' to make a store profitable on their own. And as i said above, big industry games cost A LOT to make a need to sell A LOT of units to prove profitable... If these stores can not make up for the loss or some of the big retailers, then the games may not turn the profits they need

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Can you explain why M rated games can only thrive is sold in general retail stores?

Have AO rated games thrived using nothing but online? Considering there are only 24 AO rated games listed on the ESRB's website out of the ~19,000 games listed, I would say no.

E. Zachary Knight

 

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

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Bit of a catch-22, though -- if you make a game that you know is pornographic, why submit it to the ESRB at all?  Most games that would get AO ratings are released unrated, just like most movies that would get NC-17 ratings.

That said, there's a qualitative difference between an AO game and an M one, and at this point it's just conjecture to say that retail stores would stop stocking M-rated games -- and, IMO, unreasonable conjecture.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Realistically, you almost always know what your rating will be when you submit a game to the ESRB.  People making games they know will get rated AO are unlikely to waste their money getting it rated when the stores that will actually carry it with an AO rating are also the ones that wont care much if it's not rated.  Thus, even if there are a great many games that would be rated AO, very few will ever actually get that rating.

===============

Chris Kimberley

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Chris Kimberley

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

"The pornography industry has not been driven out of business by the lack of ability to sell to 15 year olds, neither would the game industry be crippled by the lost sales certain games might suffer."

I don't feel the comparison really holds... the reason porn was able to continue to thrive was because it was popular enough that you could dedicate entire stores to the material. You don't find porn in walmarts, but in specialty adult stores. The problem for M-rated games is if stores begin to fear the crack down and dealing with fines and thus hold back from carrying the games. Look at AO games, one of the reasons those games practically don't exist is because no retailer would carry them... The cost a lot to make but are too small a niche' to get by on online sales alone... they NEED retail to make enough of a profit. 

Essentially, unlike porn, M rated games can only thrive if they can be sold in general retail stores, like walmart, bestbuy, and so forth... Slap a hefty punishment on these games and some retailers who have trouble maintaining that 100% enforcement, and some retailers may not want to take the risk... Gamestop might still pull out well since their stores are smaller and thus easier to manage, though i can imagine walmart wich sells MANY things and has many employees having a bit more trouble and might think it worthwhile to axe the resticted games rather than step up enforcement. 

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

 Ironically, I could almost see something like that being a GOOD thing.

I would love to see the major retailers get out of the game business and see games return to speciality stores.

Then again I have been hoping in general that the 'everything under one roof' cycle would cycle away again.  After department stores fell from grace I think we experienced a real uptick in quality of retail experience and a much healthier economy.. so we have a historical example of why this shift might be a good thing again.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

"Because the California law at the center of Schwarzenegger v. EMA is unable to specifically define exactly what entails a “violent” game, one practicing lawyer predicts a win for the game industry when SCOTUS eventually hands down its ruling on the legality of restricting the sale of such games to minors."

Sounds an awful lot like "good news/bad news" to me -- if this law gets struck down due to a failure to properly define violence, we'll just see another one spring up that has a more specific definition of violence.  I'd rather the court strikes it down categorically, without so much as a chance for "back to the drawing board."

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

If the Court does uphold the law, I don’t think it would be as harmful to the industry as some seem to fear. Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors. The harm would be far more philosophical than actual.

There is the rub. You say most of the games effected will be M rated. There will be some T and even E rated games that some prude is going to convince their city council or District Attorney is too violent to be sold to kids.

Add to this, you will have 50 states passing similar legislation al lwith differenet interpretations of what constitutes "extreme violence" 

Sure it hasn't effected the porn industry significantly, because they can easily edit a few hours of porn to comply with vastly different state obscenity laws. Games are a lot harder to edit for 50 different markets. Add to that the additional costs of having each version rated by the ESRB and it becomes even more trouble than it is potentially worth.

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

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

that kind of thing had a massive chilling effect on the film industry as it was near impossible to market films.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

I'm sorry. You lost me there. What are you talking about?

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

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

He's talking porn. Since it couldn't be marketed outside of some severely limited means. (Before the net).

Hunting the shadows of the troubled dreams.

Hunting the shadows of the troubled dreams.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Every time the '50 states' point comes, I see people wondering what the industry would do if hit with such a patchwork of regulation, but I rarely see people talk about the segment of the game industry that is already having to handle such a situation.  I speak of course about coin-op.

While not gambling machines, they tend to fall under the same types of rules (since they are in public venues) and one has to navigate a truly bizzar maze of state and national regulation.  Sometimes they are very clear cut (a few states do not,, for instance, allow cards, so you have to convert all your cards to something symbolic), some are scary (for instance, New Jersey, there is a single official you have to convince, with no official guidelines).  

Countries get even worse.. in the UK there is a comity with vague guidelines but in the end you have to 'convice them'.  Italy requires you to submit your ENTIRE code base and put it in escrow.  Canada requires that all games have deterministic random number generation.

It goes on from there.

One thing this does tell me.. the industry would survive just fine if it had a patchwork of regulation... companies find ways to live with it and still produce what customers want.

I still want to see this bill overturned and mocked, but that particular aspect of it, I think fears are overdoing it.  We get the image of a nightmare scenario while ignoring that some game companies exist with that nightmare and continue to do just fine.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Do Arcade manufacturers have to deal with a patchwork of acceptable content regulation? No they do not. What they have to deal with is a patchwork of hardware regulation. When you are producing cabinets in the thousands, it is much easier to comply with a patchwork of hardware regulation than if you are having to edit millions of copies of a game for a patchwork of content regulation.

The games industry does already comply with a small set of content regulation when it comes to worldwide distribution, but that is small beans compared to what could happen if the individual states are allowed to pass their own content regulations.

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

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Yes, they do have to deal with a patchwork of acceptable content regulation on a state by state basis.  The hardware regulation is actually the easy part since that tends to at least be on a national scale.

It should also be noted that in addition to selling hardware, some coin-op companies (like the one I worked for) sell software upgrade kits, which can actually result in hundreds of thousands of software packages sold per year.  

Unfortunately for whatever reason these companies have consistently resisted engaging the rest of the industry (they skip GDC, E3, IGDA, etc) so the mess they deal with tends to get overlooked.

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

"Most of the games that would be effected already carry the Mature rating and most game stores don’t sell Mature games to minors."

Additionally, if I'm remembering right (it's been a while since I've actually read the law), any game that falls under the scope of the law will be banned from sale to anyone under 18 years of age.  Store policy prevents M rated games from being sold to those under 17.

 

Andrew Eisen

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

One wonders what sort of Hutz-like strategy the prosecution will have to bring to win this case.  "Your honor, I'd like to call all of my surprise witnesses again."  Of course, the defense could counter with bag after bag of children's letters to Mario.  The more this trial looks like a pop-culture pageant, the happier I'll be.

---
Fangamer

---
Fangamer

Re: Lawyer Predicts SCOTUS Will Strike Down CA Law

Would the defense lawyer in your video game case be Phoenix Wright?

http://www.magicinkgaming.com/

 
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