FindLaw.com's Julie Hilden reads the tea leaves on the Supreme Court's decision to hear arguments on Schwarzenegger vs. Video Software Dealers Association, and comes to a conclusion that many opponents of the bill will not want to hear: the court may very well uphold the law.
In a lengthy blog post dissecting the particulars, Hilden says that "it seems it seems very unlikely that the Supreme Court took this case in order to proclaim, as the Ninth Circuit panel did, that minors do indeed have First Amendment rights – rights that extend far enough to reach "violent" video games."
The biggest concern is that the court may create a First Amendment exception when it comes to video games. While the court did not do this in its recent decision to strike down the federal anti-animal-cruelty depiction statute, it did not say that it would never do so in other circumstances.
Another important point is the court's allowance of a watered-down "obscene as to minors" test when sexually-explicit material is the subject, and, as Hilden points out, the "violent" video game law clearly borrows from that test.
Then there is the fact that the court doesn’t seem to take minor’s first amendment rights very seriously..
Of course I am not sure that Hilden's dissection of the case takes into account Elena Kagan's inevitable appointment to the Supreme Court and whether or not it will have a profound effect on the final decision given that the actual power structure of the court will remain unchanged.
Agree or not, it’s an excellent read with some great points. You can read the whole thing at FindLaw.net.
Comments
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
the advrage gamer, a 30 something male, won't even be effected by this at all.
What worries me is the presidence it will set and that ti will be a slippery slope.
First amdendment, use it or loose it.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
If this law is upheld then what does that mean about other forms of media? Videogames would in effect be stripped of their 1st Amendment protections as speech and violent media would be effectively categorized as "porn". The games industry would basically turn into the comic book industry and be forever relegated to content that only appeals to man-children (no offense).
Of course all the right-wing "family" groups and the leftist nanny staters are going to have a fucking field day using such a decision to reign in all kinds of content from film to music to blogs.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
If this law is upheld as constitutional then violent video games would be considered in the same catagory as pornography. And well adults can be sold pornography as we know many retailers won't sell material that falls under the catagory of pornography and if violent games happen to fall under that definition then some retailer might choose not to carry them altogether (i.e. - Wal-Mart).
Also some game developers might choose to town down the content of the games they release to reduce the violent content so as to not fall under the law. So it can have an indirect effect on what anybody (adults or minors) could play.
If some members of the Supreme Court think this law might be constitutional then i seriously hope that they look into the president it will cause if they choose to uphold the law. It will be very dangerous.
"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
The same chilling effect the comic book industry under went, and never fully recovered from.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
Well, on the plus side, if the law is upheld minors can still get copies of Wolf Creek, Hostel, Final Destination, and other various violent movies for mWalmart :D
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
While the Supreme Court taking up this case when it was totally unnessasary to do so worries me alot I think there may be another reason behind it.
The Supreme Court is known to take on hot botton issues. The fact that violent video game legislation is extremely popular amoungst both moralistic family values Republicans and nanny-state "please think of the children" Democrats and the fact that despite nine courts have struck down these laws haven't stopped politicans from countinuing to try to pass them may mean that the Supreme Court justs wants to answer the question once and for all. The Supreme Court may say it sympothizes with the state in this issue but may also say that it will set a bad president and could lead down a slippery slope to further restrictions on free speech in the future and because of that strike down the law.
Remember the decision in the "Bong Hits for Jesus" case that Julie Hilden brings up was a narrow one with both Kennedy and Alito saying they agree to it only because of the special characterists of the Public School enviroment and that it is at the farthest limits of what the First Amendment may permit.
"No law means no law" - Supreme Court Justice Hugo Black on the First Amendment
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
Although Not Videogame Related, but It may help matters
Do keep in mind Some justices believe the FCC indecency Law goes almost into a similar situation. Clarence Thomas and several others that hint the FCC is Unconstitutionally overbroad in fleeting explictives
http://www.scotuswiki.com/index.php?title=FCC_v._Fox_Television_Stations
Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights
Watching JT on GP is just like watching an episode of Jerry springer only as funny as the fights
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
In that case, there is a good argument that the law infringes upon the rights of adults. She mentions Ashcroft v. ACLU, and how it was unconstitutional because adults were unable to view the material in question. If the industry analogizes to that case and brings up the possibility of a chilling effect due to the vagueness of the law, that is a better chance of prevailing than just focusing on minor's rights.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
Sellers would prob be to afraid to sell violent games and developers will heavily censor games to meet the T rating.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
The article make refrences to minor's freedom of speech but what about adult's right? What if this law got passed and banned a game from being sold because it was not kid frendly? I know that I would be pissed off because my rights to play the banned game was taken away.
http://www.magicinkgaming.com/
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
At least on paper, the law doesn't ban any games from being sold to adults. How it would work in practice? Don't know. Could be that sellers would be too nervous to stock violent games at all, but more likely they would just be kept locked up and require ID for purchase.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
"...more likely they would just be kept locked up and require ID for purchase."
Well, I just went into Toys-R-Us yesterday and they demanded that I produce ID to buy Mass Effect 2. So if that's the result of the Supreme Court's shenanigans I don't see much that will change.
By the way, I refused to give ID. I don't see why I should give Toys-R-Us my business if they're going to treat perfectly harmless games as if they're porn.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
I quit buying beer at Safeway when they started making me actually fill out my name and address rather than simply show ID.
The positive upshot was that it reminded me of the importance of supporting local business; I buy my beers at a local store where they carded me once and have recognized me since.
Course, in my area at least, there aren't really an mom-and-pop game stores left.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
They're supposed to demand ID when somebody buys an M rated game, the whole point is that the industry is self policing so the government doesn't have to do it for them.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
It's probably a requirement from their bosses, too. At the GameStop I go to, the employees there know me. A few of them went to school with me. Even if they don't know my exact age, they know I'm over 17 years old. They still ask for my I.D. on almost all of the M-rated games I purchase.
"That's not ironic. That's justice."
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
With violent M games basically becoming AO in all of the States? Decent chance they wouldn't be stocked by most retailers anymore. It's not just a few games, really. It's a LOT.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
Thing is though, i don't think those kinds of things factor into the judges' decision... free speech is only a protection from the gov't; Individual stores and companies have a right to chose what they sell and don't sell... If the stores refuse to stock games banned to minors, it's not the government's responsibility and therefore not an actual violation of free speech
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
If this goes haywire, then chances are a big part of the video game business in the USA, and as a result of the entire english game market, will greatly suffer and we'll get a lot less games even outside the States. This would translate to the Supreme Court screwing over adults outside the States. Which sounds fucked up.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
Indeed, well-written and...depressing. Unforunately my own thoughts have been along similar lines as what she has argued (I've been thinking about that "Bong Hits 4 Jesus" case recently). Indeed, to the extent this case rests on 1st Ammendment protection for minors, it may very well be doomed.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
If M games are regulated to 18 and over they would be treated as AO games by Microsoft, Sony and Nintendo and stores and be forced to be heavily censored.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
But it's not as simple as "M" games -- the courts can't do that as they'd be granting legal authority to a private body. It's the far more ambiguous label of "violent games" they're talking about -- an "M" game is not necessarily violent (though it most likely is), and a violent game may not be "M".
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
Wouldn't they be doing that anyway if this piece of toiler paper is upheld?
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
I could be mistaken, but I don't think so; I think it would be a government body deciding what was "violent", not simply accepting the ESRB rating.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
The biggest concern is that the court may create a First Amendment exception when it comes to video games.
If this happens, better be ready because every idiot will try to create an exception for things they don´t like.
------------------------------------------------------------ My DeviantArt Page (aka DeviantCensorship): http://www.darkknightstrikes.deviantart.com
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
"Of course I am not sure that Hilden's dissection of the case takes into account Elena Kagan's inevitable appointment to the Supreme Court and whether or not it will have a profound effect on the final decision given that the actual power structure of the court will remain unchanged."
Well, it doesn't look like she just dashed it off this morning, so she most likely would not have known Kagan was the nominee when she wrote most of it (though she's been the frontrunner for weeks).
Kagan won't shift the balance of the court, but cases like these don't make for the predictable 5-4 partisan split that many SCOTUS cases do. Stevens, after all, wrote the majority in FCC v Pacifica. There are plenty of jokes to make about Thomas defending pornography, but he HAS broken with the other conservatives on the court in cases on Internet censorship. And the animal cruelty video case was nearly unanimous.
Definitely one to watch.
Re: FindLaw.com's Julie Hilden Predicts Game Law Win
Really good article.Before anyone jumps to conclusions, the article as a whole is pro First Amendment and in support of the games industry. She simply states the reasons why the Supreme court could uphold the law. E. Zachary Knight Oklahoma City Chapter of the ECA http://www.theeca.com/chapters_oklahoma
E. Zachary Knight
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