As GamePolitics readers know, a Utah state legislator has introduced a Jack Thompson-crafted bill that would place retailers at risk of false advertising penalties if they fail to enforce content ratings for video games, DVDs and movie tickets.
While Thompson claims that the measure, H.B. 353, "raises absolutely no First Amendment issues," we asked Clay Calvert, Co-Director of the Pennsylvania Center for the First Amendment at Penn State to review the bill and offer an opinion.
After studying H.B. 353, Calvert pronounced it "fatally flawed," although not on the free speech issues. Instead, Calvert said that a lack of intent by retailers to sell games to minors essentially cancels out any false advertising claim.
This seems to be a backdoor attempt to use the ESRB’s voluntary rating system against sellers and distributors, assuming that some sellers and distributors actually do “advertise” that they don’t sell these games to a person “under the age restriction or recommendation”
The most obvious flaw with this legislation is that it conflates actual advertising (subsection i) with subsequent conduct (subsection ii) in order to create the offense. In addition, it lacks a key scienter (state of mind requirement) regarding intent to sell. Without this intent requirement, the measure is fatally flawed.
For instance, the current version of the Utah law on truth in advertising has another section that targets a person who “advertises goods or services or the price of goods and services with intent not to sell them as advertised.” It also has a section that targets a person who “advertises goods or services with intent not to supply a reasonable expectable public demand.” Both of these provisions include the critical intent requirement.
Not to help out Jack Thompson or his legislative tool, but the provision could be more carefully crafted to target a person who “advertises that he will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation but who in fact intends to sell such a good or service to a person under the age restriction or recommendation.”
Now let’s see if they make this change!
So, the bill is flawed in a legal sense, as opposed to a constitutional sense?
False and misleading advertising is not protected by the First Amendment. On the other hand, advertising that is truthful and that pertains to a lawful product [like video games] or lawful service is protected by the First Amendment, although it still may be regulated if the government can prove that it has a substantial interest that is directly advanced or served by that regulation.
I find it highly unlikely anyone would intentionally say that they won't sell certain rated games to minors knowing that they will, in fact, sell them those games.
UPDATE: (adding a clarification)
GP: I'd like to clarify a point. The way the bill is crafted now, you maintain that it is flawed because the video game retailer has no intent to defraud.
So, if Utah added the intent to defraud to the bill's language, the statute would be technically legal. But from a practical standpoint it would be an almost impossible case to bring forward, since the retailers' efforts not to sell to minors are pretty clear evidence that they want to abide by ESRB and do not have an intent to defraud. Is this correct?
Calvert: Exactly. If some teenage clerk accidentally and unintentionally forget to check an ID and sold a game to a minor, that would not be punishable as long as the intent of the store owner (or whoever actually "advertises") had no intent for such an incident to happen and instructed employees not to sell to minors.
UPDATE 2: Thompson has forwarded comments. Hit the jump to read his response.
Dear Professor Calvert:
I appreciate your taking the time to weigh in on the Utah fraudulent trade practices bill. A couple of things I should like to note:
Rep. Morley is not my "legislative tool." Did you actually utter the following to Mr. McCauley: "Not to help out Jack Thompson or his legislative tool..."? If so, you owe Rep. Morley an apology. He's nobody's tool. He wanted to sponsor this bill.
Secondly, don't you think you and/or GamePolitics have an obligation to disclose that you are for a repeal of all obscenity laws? That's as extreme a position as one gets on the First Amendment...
Finally, you're wrong about the need for "intent" to be a state of mind only. When a business states, as does Best Buy, in its advertising, that it will not sell "Mature" games to kids under 17 but it does, then "intent" can be inferred. I know you're a "First Amendment lawyer" (meaning ACLU-type extremist), but you understand what "negligence" is, right? Saying you, as a company, don't do something, when the Federal Trade Commission says you do, and that its stings prove it, then you're fully on notice that your representations to the public are false...