by Johneboy1970, HSM guest contributor
Greetings HSM readers!
Here’s my follow up article to “Government Oversight in Video Games: Free Speech or Obscenity?” which contains the decision reached by the SCOTUS this week.
The Supreme Court has decided, in a 7-2 opinion, that the State of California’s passage of a law banning the sale of video games to minors was unconstitutional.
In the majority opinion, filed by Justice Antonin Scalia, it was decided that the Act does not comport with the First Amendment, which gives video games the legal precedence and allows them to be considered as protected free speech in future cases.
According to Justice Scalia, “Video games qualify for First Amendment protection. Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium. And the basic principles of freedom of speech . . . do not vary” with a new and different communication medium.”
Justice Antonin Scalia
He went on to add, “The most basic principle — that government lacks the power to restrict expression because of its message, ideas, subject matter, or content, is subject to a few limited exceptions for historically unprotected speech, such as obscenity, incitement, and fighting words. But a legislature cannot create new categories of unprotected speech simply by weighing the value of a particular category against its social costs and then punishing it if it fails the test.”
As mentioned in my previous article, the case (Brown v. Entertainment Merchants Association), came out of the California courts when the state government decided to pursue the authority to regulate the sales of video games. The law that the state had proposed would ban the sale of “adult” video games to minors, with the penalty being a fine of up to one thousand dollars. The legal definition of violent games, according to the suit, would be games, “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being…in a way that is patently offensive… appeals to minors’ deviant or morbid interests…and lacks serious literary, artistic, political or scientific value.”
Proponents of the law claimed that such government oversight was necessary to protect children and parents from the sex and violence in some video games, while opponents pointed out that the industry was already doing a fair job regulating itself and needed no further government oversight, and that the decision on what games children play ultimately reside with the parent – not with the state.
The obvious thrust of this decision is that video game sales will continue to be self-regulated, much in the same way that movies and video rentals are. But, more importantly perhaps, games can now be considered in the same category of other mediums of free expression which are protected under the First Amendment, such as books, film, art, and poetry. This not only legitimizes games and gaming as a whole, but also gives the medium a legal leg to stand on in all future cases concerning their sale and, more importantly, their content.
But the decision only takes video games into account. Where do virtual worlds or MMO’s, like PlayStation Home, fit into the ruling? According to at least one Justice, they may not.
In a separate filing, Justice Samuel Alito (who concurred with the ruling) warned the Court to “proceed with caution,” noting that: “We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time.”
While the “gaming as free speech” question has been answered, Justice Alito has left the door open to further decisions concerning gaming-related media and its use and impact on society. While no cases concerning virtual worlds are currently in the docket, only time will tell if new cases will arise concerning the use of such services.
(Readers, how do you feel about this ruling? Are the established guidelines and ESRB ratings sufficient enough, or do you think the industry itself needs to step up, in order to prevent further risks of government intrusion? Do you think this ruling will make the gaming industry feel as if they can create and sell whatever games they want, regardless of content? And what effect do you think this ruling will have on Home – if any effect at all – in the future? State your opinions in the comments below, and remember, keep it civil, not only in regards to the topic at hand but to each other as well.)