The State of California vs. The Entertainment Merchants Association 2010

[rough_neck_9_1]

Very important stuff here people, Tuesday Nov.2 marks the verbal arguments for one US Supreme Court case that has the potential to drastically harm and possibly kill interactive storytelling, aka Video games. Furthermore the precedent sent forth could have quite the shit shockwave.

All that fallows is off of Kotaku, I rip off them because they've basically done great groundwork and well anything I write originally would just be the same thing but with more swears and a less educated understanding of the consequences.

http://kotaku.com/5678354/all-you-ne...-supreme-court

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The United States Supreme Court hears its first ever case about video games this week. The stakes are high. Here's what is happening and why it's happening.
The United States Supreme Court is hearing that video game case this week, right? Right. The State of California vs. The Entertainment Merchants Association and Entertainment Software Association (aka "The Video Game Industry"). Oral arguments begin at the Supreme Court in front of Justices Roberts, Thomas, Kagan and the rest on Tuesday at 10am ET.

What's it about, again? Whether violent video games should be treated like pornography — in other words, whether there can be a type of violent video game that would be legal to sell to adults but illegal to sell to kids.

Oh, like R-rated movies? No, not like R-rated movies. It's legal in the United States for a kid to go see an R-rated movie, even if it's against the rules set forth by the movie industry. The only kind of movies that are illegal for kids to see are obscene ones (they're illegal for anyone to sell to anyone of any age). Those movies would fall under a special category defined by the Supreme Court in the late 60s for certain kinds of sexual material. California wants violent video games to be treated like that extreme sexual content, something no violent movies, books or magazines are subject to.

So who got the idea that violent video games should be treated like Hustler magazine? The government of California and a bunch of other states. They've been trying to get this on the books for much of the past decade.

What did video games ever do to them? In the middle of the last decade, California assemblyman Leland Yee, a child psychologist, picked up on an effort across several states to try to criminalize the sale of really violent video games. He says he did this because he believes ultra-violent games can harm kids in ways other forms of violent entertainment can't. He wrote a bill in 2005 that would fine a retailer $1,000 for selling really violent games to kids. California Governor Arnold Schwarzenegger signed it into law later that year.

So it's been illegal in California to sell violent games to children? Nope. The video game industry sued, as they had in many other states, and got the law blocked from taking effect. Two tiers of courts have since said, as they had in other states, that the law violated the Freedom of Speech guaranteed by the First Amendment to the United States Constitution.

All this mention of "really violent video games." Which "violent video games" would this law have pertained to? Yee and his allies often describe passages from 2003 game Postal 2, which does contain a lot of heinous content.


California would go after Postal 2 and what else? Not God of War or Call of Duty, right It's hard to say, but the California law does include the following standards, which the government would use to determine which games should be illegal for kids to buy:

(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would
find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the
community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary,
artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon
images of human beings or characters with substantially human
characteristics in a manner which is especially heinous, cruel, or
depraved in that it involves torture or serious physical abuse to the
victim.

That first part seems familiar. It should ring a bell, if you pay attention to law. It's pretty much the Miller Test which was established in the 1970s to determine if something is obscene.

Hmmm. I wonder if anyone who plays video games would agree that there are games that "lack serious literary, artistic, political or scientific value for minors." Probably not.

Why is the Supreme Court getting involved in this? Great question, one that the video game industry, which is defending the case would surely love to know. They've been on a perfect win streak so far. Court after court has struck down the California attempt and those of other states to ban the sale of really violent video games to kids. But in April, the Court agreed to hear the case, so surely they think something here needs another look. This is the final chance for those in the California/Yee camp to win, to essentially score a knockout after losing every round of the fight.

No, no, no. The court would not make it a crime to sell violent games to kids in America, would they? They might. They could. There are no laws that limit the sale or exposure of violent entertainment to minors, but the court could decide, through this case, that the time for such restrictions is right and not a violation of the Constitution.

Wouldn't this cause a problem for violent movies? It would seem to, which is probably why the main trade groups for the movie industry, the music industry, the comic book industry and others have filed briefs to the Court siding with the video game industry. The gaming industry has gotten a mountain of support from Activision to Microsoft, from the American Civil Liberties Union to the United States Chamber of Commerce.

But what about the science? California had been arguing with Yee citing his child psychologist credentials, that they had science that proved a correlation between violent games and violent acts committed by kids. Their science hasn't swayed lower courts and even they aren't just banking on that. They believe their idea of violent games fitting in that Hustler category of extreme content inappropriate for kids should suffice. Plus, they like to argue, those video game industry ratings don't work. Kids buy the violent video games unimpeded (the gaming industry begs to differ, of course).

Yee sure isn't into video games, huh? Just not the violent ones kids might get their hands on, though he said he can live with companies making games that involve chopping off his head.

What would happen if the Supreme Court decided in favor of California? One thing is for sure; it would become a crime to sell really violent games to kids. The problem would arise, of course, as to identifying which games such a law would prohibit. The fear of the people on the side of the gaming industry is that this confusion would force retailers to be conservative in what they sell to kids and that it would force game publishers and developers to also hold back in the types of content they create, lest they sell a game that a retailer would be afraid to sell to a minor.

That doesn't sound so bad. GameStop is already supposed to not sell M-rated games to kids. True, so your reaction to what could happen here depends on how you view the First Amendment and where video games fit in. If the Court rules for California, they are saying there is something different — and more potentially damaging — about video games compared to books, movies, music. Agree or disagree?

OK. Where can we watch this all unfold? Supreme Court hearings are not televised. Reporters aren't even allowed to bring electronics into the chamber. So let's just hope a reporter who knows his or her stuff about video games reserved a seat to sit in the Supreme Court on Tuesday.

Who? You? Yes, I've got a seat reserved in the Court. I'm ready.

This happens on Tuesday? Isn't something else happening on Tuesday? Yup. Don't expect these oral arguments to get many headlines on Tuesday and Wednesday. Election Day is Tuesday and the balance of power in Washington is expected to shift big time. The mainstream media will be focused on that. In fact, Tuesday's the day Jerry Brown, the attorney general for California (who won't be arguing this case himself), may become the next governor of his state, succeeding Arnold Schwarzenegger, unless he loses to Meg Whitman.

Tuesday sounds like a big day for gamers, at least. And we'll know the outcome then? It will be a big day, but it won't be the end of all of this. Oral arguments happen Tuesday morning, but the court has until the end of June to issue its decision.

 

[B_VinylBoy]

There is already a ratings system in place for video games.

eC - Early Childhood
K-A - Kids to Adults
E - Everyone
E10+ - Everyone 10 and above
T - Teen (13 and up)
M - Mature (17 and up)
AO - Adults Only (18 and up)

Suing the EMA does nothing as companies have the right to produce whatever games they want, depicting whatever violent or sexual conduct they choose (under legal law, of course, so nobody even try to mention pedophilia or any other red herring of an argument). The issue needs to be taken to the corporations that sell inappropriate games to minors. Although authorities (if they took the time to enforce the laws already in place) are able to take care of physical stores, online purchases are much harder to deal with especially since many sites don't check for the age of the purchaser.

In the end, I think this is a waste of time and legislation geared to make it seem as if the government is doing something. Somehow among my major addictions to video games since the late 70s, my family and I have been able to make sure all of the young ones never get their hands on an ultra violent or highly explicit game. Ultimately, the parents are responsible for their children not getting their hands on a copy of Grand Theft Auto, however, as we've seen time and time again with everyday television they simply do not pay enough attention to these things. But we'll see what happens.

 

[rough_neck_9_1]

There is already a ratings system in place for video games.

Suing the EMA does nothing as companies have the right to produce whatever games they want, depicting whatever violent or sexual conduct they choose (under legal law, of course, so nobody even try to mention pedophilia or any other red herring of an argument). The issue needs to be taken to the corporations that sell inappropriate games to minors. Although authorities (if they took the time to enforce the laws already in place) are able to take care of physical stores, online purchases are much harder to deal with especially since many sites don't check for the age of the purchaser.

The thing to remember is that the rating provided by the ESRB does not carry the weight or word of law in any and all circumstances. The ratings are a the result of an internal system of regulation that the video game industry has created within itself, parallel to the MPAA and the movie ratings which DO NOT CARRY THE WORD OF LAW.

Now generally the reason neither organization carries any weight of law is for two general reason, first being that no private entity has created law as this would be outrageous to say the least. The second part is simply that in order to sustain such a precedent in the case the court rules in favor of California is that you would than have to make the statement that games are not legally speaking free speech and as such are not under the protection of the first amendment.

Now while gamers like myself are in a bit of a tiff over this court hearing is obvious but the later reason above is what really should be digging into the hearts of non-gamers. When one section of the protection of free speech starts to get shaky, there is a threat to the others and that's your books, your movies, your comics, your music etc.

 

[B_VinylBoy]

The thing to remember is that the rating provided by the ESRB does not carry the weight or word of law in any and all circumstances. The ratings are a the result of an internal system of regulation that the video game industry has created within itself, parallel to the MPAA and the movie ratings which DO NOT CARRY THE WORD OF LAW.

And there's the problem.
This rating system wouldn't even be in place if it wasn't for initial gripes by parents and people like Tipper Gore about violence in video games going back as far as the 80s. It should have been accepted and placed into some kind of law back then. Instead, many people assumed that the video gaming industry would police itself. And as we all know, when industries are more interested in making dollars they'll forego the warnings just to make a quick buck.

Now while gamers like myself are in a bit of a tiff over this court hearing is obvious but the later reason above is what really should be digging into the hearts of non-gamers. When one section of the protection of free speech starts to get shaky, there is a threat to the others and that's your books, your movies, your comics, your music etc.

Trust me... as a long term nerdy video gamer (whose probably played one too many games of Puyo Puyo) as well as a musician, you will never have to worry about the government getting so strict that you won't be able to get access to what you want to play or listen to. The First Amendment is not under attack here, even with this frivolous piece of legislation that somehow made it to the supreme court of California. Way back yonder, the big issue surrounding video games was about importing them from Japan and modifying systems to play them. Even though that may be technically "illegal", nobody is coming to knock on your door if you purchase them since we can walk into most music and video stores and legally buy an import. With certain M or AO titles it may become an issue of that instead of walking into Best Buy. A minor inconvenience for those who are truly dedicated to gaming. To be honest, I can't even recall when I've actually went into a store and bough a game. I've been buying titles online since the late 90s. But I digress...

None of this would be on the legislative floor if adults just did their jobs and put in the necessary attention to protect their kids from obtaining bad materials.

 

[rough_neck_9_1]

The thing is I'd argue there's more to fear, on the side of a gamer that is, than just a minor inconvenience of not being able to go to a Best Buy, Wall-Mart, Game Stop etc to buy a game.

The fear being that under the assumption the court rules in favor of California, and a form of federal regulation deems Mature titles unfit for the consumption of minors in the same way as pornography. All those places of business would more than likely cease to carry and sell such materials as they themselves would not want to be considered in the public eye as selling "unfavorable or cruel" materials.

What this means is for the US anyway is suddenly games have a much smaller market to sell. While online marketing may pick up there's no guarantee such business would excel and historically digital markets have not been great. Now under the conditions that retailers would not want to carry Mature games, generally speaking in the modern multi-million and multi-year production costs of games may seem way too risky for a company to sink that kind of time and money into a project that may not see well at all. Take the publishing company Activision for example, in with Robert Kotick as expressed time and time again that he runs a business built on the need for profitability, and with such a potential risky market would Kotick stick Activision out on that kind of an edge? And this argument can be used across damn near every Development studio and Publishing studio in the US. Furthermore there's the risk if the game market shrinks in sales, giant conglomerates such as Microsoft and Sony, who's gaming aspects are fractional pieces of their respective industries, may see the games market too risky to produce materials for. At least with Mature titles, and that's your Mass Effects, your Fallout's, your Red Dead Redemption's, your Fable's, your Call of Duty's all getting the axe because there's too much of a risk to spend the time and money to develop.

The whole process just opens up way to many risks unknowns. And even under all that there's still the argument that games should be considered free speech, which at least I would argue they are.

The thing that irks me about all this is I'd rather not leave the decision of what games are and should be in the hand of people who do not play them and by extension do not understand them.

 

[D_Hammond Happydipper]

Oh, like R-rated movies? No, not like R-rated movies. It's legal in the United States for a kid to go see an R-rated movie, even if it's against the rules set forth by the movie industry. The only kind of movies that are illegal for kids to see are obscene ones (they're illegal for anyone to sell to anyone of any age). Those movies

you know some movies are rated NC-17 that means Adult only 18+ ID required.

No children allowed.

rated R means the parent can give permission if they are with them

 

[rough_neck_9_1]

you know some movies are rated NC-17 that means Adult only

That is to say the materials in question have been deemed inappropriate for any and all minors, but only in the case of pornographic materials does that ratting carry the word of law, otherwise any regulation on the behalf of films is entirely internal and a business practice. It is NOT illegal for a minor to view a film that has not been deemed pornographic.