California: “Three-Prong” Test Will Preserve Free Speech

October 18, 2010 -

The petitioner in the Schwarzenegger vs. EMA Supreme Court Case is the state of California, and as such, it receives the opportunity to furnish the Court with a reply brief, in which it can argue against statements presented in the brief of the respondent.

California has done just this, submitting its reply brief (PDF, thanks PHX Corp!) in which it begins by stating that the respondents are off base in their attacks:

Respondents and their amici paint an alarming picture of government censorship of both classic and contemporary art and literature, ignoring the level of extreme violence depicted in the narrow category of video games that is actually covered by the Act.

California claims that its law “narrowly targets a distinct audience,” an audience that is “susceptible to unique harms.” It further stated that “an established three-prong test,” will ensure that speech with serious literary, artistic, political, or scientific value for minors will not be regulated.”

The “three-prongs” were identified as:

1. The Act applies only to “violent gaming content that includes the killing, maiming, dismembering, or sexually assaulting of an image of a human being in a manner that a reasonable person would find appeals to a deviant or morbid interest of minors.

2. If the first prong is satisfied, the second prong involves determining if a game’s violent content “is patently offensive to prevailing standards in the community as to what is suitable for minors.” California called application of this element “straightforward,” and said its scope was limited to acts depicting “killing, maiming, dismembering or sexually assaulting an image of a human being.”

3. If the first two prongs are achieved, the Act would apply only to games “where the patently offensive, deviant level of violence causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors.”

Additionally the state argued:

… the First Amendment should not be understood either to guarantee retailers a constitutional right to sell offensively violent video games to unaccompanied minors, or to guarantee minors the right to independently purchase this limited class of video games.

California also stated that the respondents (EMA and ESA) were quick to dismiss concern over the impact of violent media on kids, saying that this “glib dismissal,” was not surprising since:

There is no reason to believe that the video game industry’s profit motives would be aligned with the concerns of parents and elected representatives who believe parents should have the tools to guide the development of their children.


Comments

Re: California: “Three-Prong” Test Will Preserve Free ...

Which Call of Duty? Most of 'em are T.

 ETA: Ignore please, should've been a reply to another comment

Re: California: “Three-Prong” Test Will Preserve Free ...

Normally I find reading comments on this site to be a bit of a grab bag, but I have to say I'm loving the comments on this piece so far. Both Harmlessbunny and Siriusjr have made great points.

I mean, Disney can get away with impaling the villain in Little Mermaid, hanging him in Tarzan, and stabbing her with a sword in Sleeping Beauty. A father figure is trampled and maimed in the Lion King (he's not a human image, but all its animal characters are very humanized). This doesn't even count the off-screen deaths of fatal falls, explosions, and being eaten alive. Then they market the movies to some of the youngest media consumers out there. But of course, since the kids didn't push a button to make the event happen (unless you count "Play"), this law will completely and conveniently overlook it.

Oh, and if Disney deaths don't do it for ya, go watch an Indiana Jones movie. Some of those scenes scared the crap outta me as a kid, and I do believe all 3 original movies were rated PG!

Re: California: “Three-Prong” Test Will Preserve Free ...

"I do believe all 3 original movies were rated PG!"

Temple of Doom was released as a PG, but that created an outcry which led to the creation of the PG-13 rating.

Re: California: “Three-Prong” Test Will Preserve Free ...

"Oh, and if Disney deaths don't do it for ya, go watch an Indiana Jones movie. Some of those scenes scared the crap outta me as a kid, and I do believe all 3 original movies were rated PG!"

Oh yeah, the ending of Indiana Jones and the Raiders of the Lost Ark scared the hell out of me as a kid. Nothing else has been so simplistic yet scary for me in my childhood as that crate with the ark in it.

 

 

"The difference between genius and stupidity is that genius has its limits." -Albert Einstein

"The difference between genius and stupidity is that genius has its limits." -Albert Einstein

Re: California: “Three-Prong” Test Will Preserve Free ...

That's the thing about it really.   The content isn't as much of the issue as the media it's presented in.   These people overreacting more or less on preconceptions on interactive entertainment being somehow worse then other forms of the same violence/sexual content presented in other forms.   The reality is people are more afraid of the media itself then the content... or so it appears.

Re: California: “Three-Prong” Test Will Preserve Free ...

Right? It's like watching media isn't a conscious decision according to these guys. We're really that dumb that we consume whatever's going on the television, apparently.

Playing a game and killing that human image is a conscious decision. Watching a movie or other media is a conscious decision that's just as meaningful. Even if the game is responsible for making the player want to "kill" human images as part of its gameplay, a trailer for an action movie is responsible for making the viewer want to go see those cool fights. They capitalize on violent scenes and moments right there and use violence to "manipulate" the viewer. Even a recent kids movie like the Karate Kid - it teaches good values beyond fighting, but who doesnt' look forward to the tournament at the end?

Still a conscious decision based on incentive to watch something violent.

Re: California: “Three-Prong” Test Will Preserve Free ...

Right -- SCOTUS rejected the "you can just change the channel if you don't like it" defense in the Carlin case on the grounds that you can stumble across a radio (or TV) station by accident, but that's certainly not the case with a (retail) game.

Re: California: “Three-Prong” Test Will Preserve Free ...

If this got implemented why do I get the feeling no game would ever pass it?

Re: California: “Three-Prong” Test Will Preserve Free ...

"1. The Act applies only to “violent gaming content that includes the killing, maiming, dismembering, or sexually assaulting of an image of a human being in a manner that a reasonable person would find appeals to a deviant or morbid interest of minors."

...considering there are television shows and movies shown in prime time rated PG-13 (*cough* CSI, NCIS, Criminal Minds, Law and Order, etc etc) that qualify under this, why just stop at video games? As an insurance analyst, in our terms and dictionaries describe a reasonable person as a fictional being. This is just setting up tyranny of the minority against the majority.

"2. If the first prong is satisfied, the second prong involves determining if a game’s violent content “is patently offensive to prevailing standards in the community as to what is suitable for minors.” California called application of this element “straightforward,” and said its scope was limited to acts depicting “killing, maiming, dismembering or sexually assaulting an image of a human being.”

Again...who and how determines what is offensive? Various media have depicted impaling, maiming (see Disney's The Little Mermaid), dismembering (Star Wars V: The Empire Strikes Back), sexual assualt (see dozens of T.V shows.) and many get a PG or PG-13 rating. The VOLUNTARY ESRB, actually rates games pretty harshly as is. Currently this system works. Why change it? Normally what would pass as a PG-13 movie can be rated "M" on ESRB. Every store I've been to actually voluntarily enforces this. I was ID'ed buying Dead Space and Fallout 3 over a year ago (and I am 27 years old and look like I am in my 30's :P)

" 3. If the first two prongs are achieved, the Act would apply only to games “where the patently offensive, deviant level of violence causes the game as a whole to lack serious literary, artistic, political, or scientific value for minors."

How VAGUE can you get?! You can argue anything is artistic. Once again, that I don't think California is getting, that this is all subject to the whimsy of politicians. This violates the whole letter and idea behind the 1st amendment. (sad that I know that more than them...I am Canadian afterall :P)

I hope the supreme court puts them in their place. All of this is inadequate and subject to personal opinions and whims of the politician of the day. Doesn't California have better things to do? Like...trying to fix their bleeding deficits, the over stressed electrical system, needed social problems and reforms, and massive poverty?

Must be time to chase the bogey man to sweep away attention from the more important problems.

Re: California: “Three-Prong” Test Will Preserve Free ...

My thoughts, to the letter.

---

With the first link, the chain is forged.

--- With the first link, the chain is forged.

Re: California: “Three-Prong” Test Will Preserve Free ...

Does anyone know if what they say about Parental lock bypassing is true?

I've looked it up but I don't really want to go test it.

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: California: “Three-Prong” Test Will Preserve Free ...

Using their own standard and arguments, I don't see how any violent game could possibly be covered by the act.  They say "A reasonable person can make this judgment through application of a common understanding and definition of the applicable terms. Does the violent content appeal to a minor's interest in violence that is abnormal or departs from established norms or social customs as to what level of violence is appropriate for minors?" 

Except established norms of society right now are that children play M rated games frequently and children's movies show footage of young kids playing M rated games (see Percy Jackson showing a teenager playing Call of Duty.  I actually had an 8 year old or so child sitting a couple of rows behind me scream "Call of Duty!" when he saw this).  If it is common for children to play M rated games, then it can not at the same time be deviant for children to be interested in those games, rendering most of the Act pointless.

Re: California: “Three-Prong” Test Will Preserve Free ...

Which Call of Duty? Most of 'em are T.

 

Re: California: “Three-Prong” Test Will Preserve Free ...

I'm pretty sure it was Call of Duty 4 Modern Warfare but I don't really know one from another.  The point is, kids play halo, gears of war, call of duty and whatever else is fun.  The mere fact of all the whiny kids on the online part of the game is sufficient evidence of this.  Most of the time someone starts to discuss a shooter someone complains about the 13 year olds who use bad language and are overall disrespectful.  

Re: California: “Three-Prong” Test Will Preserve Free ...

Here, California is basically admitting that "violent obscenity" would be an entirely new category of unprotected speech.

Re: California: “Three-Prong” Test Will Preserve Free ...

California just shot itself in the foot by submitting this.  This is simply a tweaked Miller test and however you apply video games, they always, always fail the three prongs of this test.  Assuming by some outrageous off-chance that the first two prongs are satisfied (Postal 2 is probably the only contender), how would any game "lack serious literary, artistic, political, or scientific value"?

This is a conservative Supreme Court that has already demonstrated its reluctance to create new, semi-protected levels of free speech.  Factor in the overwhelming evidence presented by the video game industry and its allies and the fantastic law firm of Jenner & Block, which specializes in Supreme Court cases, and it's very difficult to see the Supreme Court voting to censor a medium so broadly.

Re: California: “Three-Prong” Test Will Preserve Free ...

My favorite part: "...for the vast majority of minors (...) the Act will have no impact whatsoever"

A solution in search of a problem.

Re: California: “Three-Prong” Test Will Preserve Free ...

I've always been of the opinion, "if it ain't broke, don't fix it."

 

Re: California: “Three-Prong” Test Will Preserve Free ...

I hope they bring up Thrill Kill... rated AO by the ESRB and subsequently cancelled by EA.

The industry is perfectly capable of self regulating.  It truly seems as though this law would not apply to ANY game currently released anywhere.

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: California: “Three-Prong” Test Will Preserve Free ...

If they do it will only show how out of touch they are as ,well, wasn't that the mid 90s?

Re: California: “Three-Prong” Test Will Preserve Free ...

It was... but there's a part in the brief where they talk about how offensive and inoffensive violence are all placed under the M rating... which is not true.  Violence deemed offensive is place in the AO rating... which is then refused licensing on major consoles and sale in stores (lack of licensing also means that they cannot legally be played on the machine).

 

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: California: “Three-Prong” Test Will Preserve Free ...

Ugh.  Can't we just kick California and Texas out of the United States?  We would be better off with fewer crazy liberals and conservatives.

Re: California: “Three-Prong” Test Will Preserve Free ...

You'd have to kick out a helluva lot more states, like...all of them.

Re: California: “Three-Prong” Test Will Preserve Free ...

There is no reason to believe that the video game industry’s profit motives would be aligned with the concerns of parents and elected representatives who believe parents should have the tools to guide the development of their children.

Funny they should mention tools that parents need to guide the development of their kids. Last I checked the games industry provide a number of tools in this regard: Parental controls, ESRB ratings and descriptors and a power button/power cord.

Parents also have a few tools already at their disposal: Parental authority, discipline, and house rules.

Frankly, if any parent is ignoring these tools they will not benefit from this law at all.

PS: I love the image used in this article. It illustrates the arguments of California so well.

E. Zachary Knight
Oklahoma City Chapter of the ECA
http://www.theeca.com/chapters_oklahoma

Re: California: “Three-Prong” Test Will Preserve Free ...

My thoughts exactly. I would argue that there is reason to believe that the industry's profit motives align with parental concerns. It's bad for business if parents think that all video games are a bad influence, and the popularity of family-oriented titles shows that there is a potential loss.

Especially when you consider that the industry provided parents with "tools to guide the development of their children" in the first place.

Re: California: “Three-Prong” Test Will Preserve Free ...

The Act applies only to “violent gaming content that includes the killing, maiming, dismembering, or sexually assaulting of an image of a human being in a manner that a reasonable person would find appeals to a deviant or morbid interest of minors.
 

Very disturbing, because, according to them, we are sociopaths and not reasonable persons. Can they make it even more vague?

There is no reason to believe that the California´s government motives would be aligned with the concerns of parents to guide the development of their children.

Fixed.

 

------------------------------------------------------------ My DeviantArt Page (aka DeviantCensorship): http://www.darkknightstrikes.deviantart.com

 
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