February 20, 2008 -
In a remarkable coup for a game-oriented site, Laws of Play's Anthony Prestia had the opportunity to hang out with U.S. Supreme Court Justice Antonin Scalia - and used the time to ask Scalia how he might regard video game legislation, should it ever come before the Court.Scalia, the second most senior member of the Court, is a noted conservative. Prestia writes:
I asked [Justice Scalia] whether... he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment...
Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not – he instantly drew the parallel to regulation of pornography sales...
Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment...
Scalia's remarks are especially noteworthy given the dismal track record of state-level video game laws in lower federal courts. To date, all nine laws to have gotten that far have failed. Prestia continues:
The implications of Justice Scalia’s answers are multi-dimensional. First, he suggests that upon appeal to the Supreme Court at least one of the nine justices [himself] would affirm state laws that ban the sale of mature-rated games to minors. Second, his remarks suggest Justice Scalia believes that video games not qualifying as obscenity... are protected by the First Amendment.
Essentially, this means that one of nine Supreme Court justices believes the sale of mature games to minors can be regulated, but that the overall regulation of the medium would most likely be unconstitutional...
Such a holding would not place a ban on parents buying mature games for their children; it would simply prevent minors from buying the games on their own and would leave parents to be parents...
Comments
“We seem to agree that there is a problem, but are quite comfortable shooting down everyone else’s solution.”
That's because the solution doesn't address the problem. The only problem here is parental negligence. Laws that restrict game sales to children do nothing to address that.
Andrew Eisen
well sir i believe you are a knob
According to the ESRB, 6% of games rated in 2007 were rated M. We haven't yet seen what percentage of game sales are M-rated games. We'll have to wait for the NPD's report. In 2006, M-rated games made up 15% of game sales.
Andrew Eisen
I'm worried that it would not stop there, if the foot is in the door for treating games differently to those other media formats then where does it stop? There's two directions it can go, either it will lead to enforced ratings for other media, which is not such a terrible thing, or it will lead to further sanctions against the game industry, who would be alone among the legally enforced systems.
Here in the UK, we have exactly the opposite problem, a loophole that is currently being fixed, where many games did not have to go for legally enforced ratings, whilst almost every movie did, that situation was unfair, I would be a hypocrite to say otherwise, and I am actually glad it is getting balanced up, but a system that enforces only for games and ignores other media is the equal and opposite to that very problem, and is no more balanced in my opinion.
Also seeing as he has already mentioned outside of a court case ruling that he'd probably uphold an anti-gaming law (i still consider it iffy if he would as he might just be referring to already existing "obscene to minors" laws when saying he'd uphold a law on "mature" video games), i wonder whether he'd have to excuse himself from the case as he did with the Pledge of Allegiance "Under God" case. Scalia does this alot. He's very outspoken about his views on the constitution.
"We seem to agree that there is a problem, but are quite comfortable shooting down everyone else’s solution."
this is because the solution isn't something that can be solved by legislation, the problem is not that children are getting these games, the problem is that these same childrens parents are paying attention to what their kids are playing and allowing the kids to be playing games that quite frankly they shouldn't be playing
the problem with legislation is that since they can't use the ESRB's rating as a guide line they need to use language such as in California's game bill, which the biggest problem is it is much to vague, as you could apply that language to a standard looney toons cartoon, and it would be according to the bill harmful to minors
I haven't seen any legitimate nor coherent reasoning behind his logic. Actually i've seen quite the opposite. It seems very illogical as well as dangerous to restrict the dissemination of ideas, information, messages, viewpoints and opinions to minors. This is because if we do so, then by the time they reach "enter arbitrary age limit for adulthood here" their minds will be a blank and they'll be unable to deal with the real world as we know it. In essence, it's an indirect form of mind and thought control by disallowing minors to form their own viewpoints based on uncensored and unrestricted access to free speech materials.
Obscene games being determined to be obscene?
Logic be damned!
Lol in all seriousness I agree with this guy, except he should change it from M to AO and then he's got it spot on.
No we don't agree. What is the problem? Why is it a problem? and For whom is it a problem?
they are not touching M/R rated games tho tis the NC17 and AO ones that might could fall into the obsence level.
And that major retailers don't even carry them, effectively banning them.
And that the consoles don't play them, because the manufacturers don't want them.
Wait, what's the issue here?
Now the trouble may come when they try and define what is obscene. It takes a LOT of violence and/or sex for a movie to be considered unfit for minors, and the same standard should be applied to games. If someone tries to argue that something like Halo or Bioshock is obscene, then they'll have a fight on their hands.
Not at all. For one thing, AO-rated games aren't necessarily indecent, so they might not be subject to regulation under current standards of obscenity and indecency. Besides that, it would be a serious mistake to regulate games according to their rating. After all, how would the law deal with unrated games? Would it require that games be rated before being sold, which would likely be considered a form of [unconstitutional] "prior restraint"?
No. BMK is absolutely right.
And with a law block place more adult content could be made because less people would be anal about it.
many of us have no problems with regulating "adult" content, however, before you label something as adult content we need to figure out what level of violence amounts to adult content, which is something a lot easier said then done
i understand that you need to draw a line somewhere, but where do you draw that line? are decapitations considered adult content, if so we better go back and restrict the sale of pretty much every slasher flick ever made on the same basis
Simple the NC 17 and AO ratings are sufficient,the way to "label" it under the current legal system you create a adult ratings board, the approval process involves either a review or a fast pass to get the 18+ rating thats bound by law.
Mature content the 17 level is regulated voluntary by the system.
Adult content (content more obscure or extreme compared to mature content) would be regulated in part by the government and watch dog groups with fines as much as 1G per incident and 5G fine to be certified/cleared, the fines are merely to cover the cost of smearing the stores name, if they want their rep back they'll have to earn it.
The indvendaul that sold it would get a 50$ per incident fine and msot likely fired from the store but thats between the store and the employee.
Literature(less than 30% illustrated) and music get set to voluntary review.
High Visual mediums like comics,games,videos and magazines get a mandatory pass for adult level content.
One could say the ARB(Adult ratings board) just oks the rating the current boards spew out, the only real change besides some fines and regulatory costs is the end of unrated DVDs, and a level playing filed for games and movies.
Now they could amend the constitution to add above r/M/mature level content as adult only and build a law with minmilized enforcement around it, but its more difficult to do that.
The best way to protect adult material from kids is to create a law to ban the sale of them to minors, this would elevate a lot of the issues around it.
Any direction you take is not great IMO....
Why are people so eager to prescribe elaborate solutions to problems that aren't really problems?
Oh yeah, i know what you're talking about. Those evil cigarette uh i mean video game companies advertising Manhunt on Saturday morning cartoons and giving free copies of the game away to elementary school children. Damn those evil video game makers, Damn them all to hell.
And what dose it change other than fines and fees and keeping adult content out of the hands of children?
OM them poor unrated DVDs will ahve be rated boo hoo HOO!
What I want is a system that mirrors Germany or the UKs system only minus the whole ban issue.
We need to bind the sale of adult content to law in order for it to grow, I do not kid when I say we need to protect the content from minors and their whiny subversive protection groups who at the end of th day are willing to throw the baby out with the bath water.
Instead of saying he idea is bad why not shape it in a way that works for all sides.
Note that I said enforcement amounts to smearing, basically the government and its on a leash assistants gather intel and release a report, thos business on the report are made to pay fines to be able to get of the list, the "LAW" in this case give government the right to label and fine business's, this would be more akin to forcing the appearance of a working law than being a law that "censors".
You have to see in between the trains on this, what we need is a law that keeps adult(not just porn) content out of the hands of children but do it in a way that its more about fines and the loss of reputation than banning and censoring.
Considering that violent games have not been shown to be harmful to minors, the matter of parents being oblivious to the games their kids like is really a family problem, and not a government problem. Why should the government pass laws to help those that are able but unwilling to help themselves? Why should the government set the standards of what's appropriate, when the parents are the ones with particular standards?
In any case, violent video games aren't being peddled to kids, nor have they successfully been shown to be harmful to minors. The only problem here, it would seem, is that parents are oblivious to that which isn't happening with regard to products that aren't harmful!
What changes is the need to obtain a rating before you can publish certain kinds of games. Like it or not, that's considered prior restraint and is therefore unconstitutional. I'm sorry if that puts a damper on your grand regulatory scheme.
Is that supposed to make me like it a little more? It doesn't.
Censorship activities aren't limited to the suppression of speech. The system you propose is a form of censorship.
When you mean minors, do you mean just young children? If so i'd say i could agree with that if done properly.
On the other hand I'm against Free Speech restrictions or restrictions on older minors and teenagers as they need full first amendment rights in order to from their own viewpoints based on unrestricted ideas and information before becoming full-fledged adults. Shielding children eyes and ears from anything the nanny-state deems offensive for them at that point of their life could be dangerous. As i've said before, it will leave their minds a blank and they'll be unable to deal with the real world as we know.
Trust me, i know some children who were sheltered and shielded from so-called "Mature" content who now that they are grown up, are messed up because of it in some way or another. Older children and teenagers neither want nor need this over-protectionism.
Certain kinds of games,comics,magazines and videos.
Heres something you missed if you wan the 18+ certificate you can bypass the review process and get it within a week, if its been hit with a NC17 and the video has more content in it it needs either to be reviewed or fast pathed to the 18 certificate.
We are not a country of freedomes but of laws and rules, I see this as a process needed not to censor because nothing can be blocked or baned.
The adult content board would work with the current boards in place to give adult content (AO/NC17) a 18+ certifcate thats bound by law.
Censorship is blocking adults content on moral grounds, to prevent the sale of adult content to minors is not censorship we have censorship now that will never vanish because the console makers refuse to bend on the issue because they do not want to lose face, if the government stepped in they would be more inclined to let in adult content.
That's still a form of prior restraint.
Laws and rules for the sake of laws and rules is no good. Without rights and freedoms to inform those laws, there is not context in which to judge whether a law is fair. America is supposed to be a country of freedoms, rather than blind laws and rules. That it often doesn't work out that way is an issue for another day.
The law defines minors as thos under 18, minors have some rights but are in a status of contradiction as far as laws are concerned because they are minors after all, point being they have rights but they don't.
In order for adult content to be fully blocked from them one will have to change the laws of the land, amending the constitution is about the only way to do it,also in the amendment one could out in place a mechanism hat allows government approved ratings boards to say what is adult content in their filed of work.
Remember adult content is not mature content it goes beyond that and this is no longer about games but protecting adult content from minors and their whimpering watch dog groups.
thus why the law needs to be changed to allow it.
You mean the US Constitution? No. The constitution is supposed to protect our rights, not reduce them.
Not really it can be amended and has been already to reduce them so government can prostrate itself over the people.
As a example one would have it where adult content is protected from minors is to use the systems in place that rate visual medium,items that have been deemed NC17 and AO or baned as items that can be sold to minors, this would be moving forward law that would prevent the sale of such items to children as well as make it where hollywood can not release new unrated DVDs.
There are things that can be done to protect both side.
In essence you are right about that that claim, but that doesn't make it right, at least not in my opinion. I'm not an extremist, i can understand the protection of young children BUT when it comes to older children and teenagers "age limits" especially when it comes to Freedom of Speech, are extremely arbitrary.
My point is that your pet regulatory scheme goes against the letter and spirit of the Bill of Rights. Heck... states could conceivably join together and strike out the entirety of the First Amendment, but such an act would constitute a serious betrayal of Americans' free speech rights.
BmK
Is it right to let one kids smoke or drink if the parent feels they are ready for it?
Isay yes its the parents right to get their child ready for life/adulthood but the child itself should not walk into a store and by a 40oz and a pack of smokes.
My point is its best to lightly protect the masses, hence word LIGHTLY, blanket over reaching laws tend to implode on themselfs, what i seek is to give some mainstream protection of adult content so it can flourish in the light, if you keep things as they are it wil be another 10 years before companies even bother trying to make a AO level game, by doing nothing you damage the advancement of mainstream adult content.
*rolleyes*
Hell man what dosent?
Phiza,spying on phone consumers,patroitact and what was the other...they all break the spirit of the constitution, also at that time you ddn't have large media industry selling sex and violence if you did we'd probply gotten over it by now.
My point is wel read above with out some sort of of protection adult media will forever stay in the exstreams.
why is keeping it from minors suppressing it?
this I do not understand your not baning it or even delaying it (with some of my later exsamples)
What you want to do is let kids smoke and drink directly from the store, what I want is them to be turned away from the store, this will entice the industry to feel that its ok to release the very content thats so hated right now because tis not being protected from kids!
Adrian Lopez
Hell man what dosent?
Phiza, spying on phone consumers, patriot act and what was the other…they all break the spirit of the constitution, also at that time of the making of the constitution you didn’t have large media industry selling sex and violence if you did we’d probably gotten over it by now LOL.
My point is well read above without some sort of protection adult media will forever stay in the extremes.
You're suppressing it with respect to minors.
Don't be ridiculous. Did you not read the Wikipedia entry about straw man arguments I posted earlier in this discussion?
But heres the thing IT SHOULDN'T BE IN THE HANDS OF MINORS WITHOUT PARENTAL CONSENT!!!!!!!!!!!!!!
Oh please your using the the censorship straw man big time,I am just borrowing some hey ^_~
For one thing, alcohol and cigarettes aren't Free Speech, they don't express ideas, information, messages, opinions or viewpoints.
Secondly of all alcohol and cigarettes have been proven beyond a reasonable doubt to have harmful physical effects on people. There is no proof beyond some extremely weak and inconsistent, incredibly flawed and probably biased studies that so-called "mature or Adult media" has a generally harmful effect on anybody.
Perhaps. The problem is that, so far, the reason why they shouldn't be in the hands of minors without parental consent has not been established. Parental values and objections are not enough. Limiting the rights of citizens -- even those who are minors -- is not to be undertaken lightly.
damn man you should post on the forum, good retort.
But then to that I say either we limit some of it or do not limit it AT ALL and ban and boycott the industry and retailers that try and to limit and ban what they sale.
a thought stirred in he empty cavern known as my head,
As I can see it sosicty has its norms anything to go beyond that is something that society needs to limit minors to, its not a question of free speech its a question of development, with that said what is so wrong about keep extreme adult content away from minors via sales bans to them?
Hell we limit weapons to the populace because they might raise up aginst the government and thats a contradiction the government was founded on, reasonable limits is what my mind is set to.
Here's my question:
Why do minors need to be protected from adult games?
Andrew Eisen
Why do minors need to be protected from adult games?"
A rhetoric: Why do games need to be rated?
"Why do games need to be rated."
They don't.
But I can tell you why they are rated. They are rated in order to provide concise and impartial information about the content in computer and video games so consumers, especially parents, can make an informed purchase decision.
Andrew Eisen
The whole point of a ratings system is to slot it to age ranges not ban it and whine about how you protected rug rats from carpets.....
Andrew Eisen
you can continue it in the forums if uuu dare :P
Like I said above the ratings system slots media into age ranges that are matched to maturity levels generally accepted by society, it is a way to help society (and parents) find media by content type.