Two years ago, the Supreme Court ruled on Brown vs EMA. This case sprung from California’s attempt to treat violent video games in a similar fashion to alcohol, tobacco and pornography. That law was passed in 2005 and went from court to court till the Supreme Court took it up in 2010. California wasn’t alone either, over 10 other states had attempted similar legislation all with the same result, being struck down as unconstitutional when challenged by the games industry.
The California case was different than the rest, as California was willing to go beyond Federal District Court all the way to the Supreme Court. Something no other state was willing to do. But its bluff was not sufficient. The Supreme Court ruled in favor of the games industry’s free speech rights(PDF) and said California’s attempt was unconstitutional.
We emphatically rejected that “startling and dangerous” proposition. Ibid. “Maybe there are some categories of speech that have been historically unprotected, but have not yet been specifically identified or discussed as such in our case law.” Id., at ___ (slip op., at 9). But without persuasive evidence that a novel restriction on content is part of a long (if heretofore unrecognized) tradition of proscription, a legislature may not revise the “judgment [of] the American people,” embodied in the First Amendment, “that the benefits of its restrictions on the Government outweigh the costs.”
In its ruling, the Supreme Court stated that violence in games cannot be restricted as obscene for two reasons. One, that violent media is unrestricted in other mediums such as film, tv and books. Two, no court in the past has ruled that violent media is undeserving of First Amendment protection.
This ruling should have been the end of such legislation, at least that is what many in the games industry had hoped. However, before the ruling, I had written that it probably wouldn’t be the case. Based on my analysis of Oklahoma’s attempt at game regulation, I declared that such laws would continue to be introduced, it is just the tactic that would change. Sadly, my prediction has come true and we are still plagued by unconstitutional legislation throughout the US.
More recently, we have seen new calls for regulation of violent games in the aftermath of recent shootings, such as in Newtown. These violent acts have rallied many legislators and other government leaders to renew the efforts to regulate the sale of violent video games, despite the Supreme Court ruling preventing them. Even the NRA, a lobbying organization representing gun owners, has sought to shift focus from guns to games. Additionally, many media outlets have renewed and in some cases intensified their mischaracterization of games and the people who play them.
Needless to say, we still have much work cut out for us.
What can we do to fight this battle? How can we stand up for our right to play the games we wish, the right of developers to make the games they wish, and the right of retailers to operate their businesses the way they wish? There are a number of ways.
The best way is to simply get involved in politics. If you live in a state that has introduced legislation to regulate violent games, write or call your representatives. Tell them about the Supreme Court ruling. Tell them about the ESRB, parental controls, and the policies of retailers. Offer to meet with them and show them what is available already to help parents control the games their children can play. Do the same for your US Representative and Senators.
Getting involved in the media is also good. Write letters to the editor about games legislation. Write about positive aspects of gaming, things that many people outside the industry don’t really know. If you attend or organize a gaming event, make sure that the media will be there to report on it. It is far harder for the media to disparage something once they are educated on it.
The next is to get involved with the community. One thing that the media likes to do is paint fans of violent games as anti-social and prone to violence. If there is a local gaming community of any sort, whether that be game developers, retro gaming clubs, or any other type of group, get involved with them. Once you become a part of this group recommend that the group get involved in charity and outreach work. Many libraries and local charitable groups love the idea of incorporating games and gamers into their efforts.
Finally, get directly involved in the organizations that strive to be full time representatives of gamers and developers. The Entertainment Consumers Association works tirelessly to lobby both federally and within individual states to protect the rights of gamers. Join the organization and help them out in that work. If you are a game developer, the International Game Developers Association is a great organization that really could use the support. Its efforts to improve the lives of game developers coincides nicely with outreach. The local chapters of both of these organizations can be a huge source of support. Get involved, please.
Yes we have the US Constitution and the Supreme Court on our side. But this battle isn’t really won there. It is won in the court of public opinion. That is where we need to focus our time and efforts from this point forward. We need to become an active force for good. Only then can we move on from these pointless efforts to restrict gaming.
