Yee: I Would Never Seek a Ban of Ultra-Violent Games

May 3, 2010 -

The Los Angeles Times recently peppered State Senator Leland Yee with a few questions about the original legislation he penned making it all the way to the United States Supreme Court.

Perhaps the best question posed to Yee asked how he could introduce legislation that would make it illegal to sell violent games to minors when he is not very familiar with games at all.

Yee answered:

That is a fair criticism. I'm not a player. But I have seen individuals who play these games. I have seen individuals using a baseball bat and bludgeoning a hooker to death, or taking a gun and shooting a cop. Those are the direct result of someone pushing a button and making a conscious decision. I can see that that kind of connection between your action and the consequent behavior is dangerous.

With a movie you can sit there for two hours and see everything. In these violent games, parents may never fully understand what they contain because you have to be a very sophisticated player to trigger them.

NPR Discussion on Violent Videogames

April 29, 2010 -

NPR’s Diane Rehm turned her focus to violent videogames yesterday in a radio show that featured California State Senator Leland Yee, Grand Theft Childhood co-author Dr. Cheryl Olson, the Entertainment Software Association’s (ESA) Richard Taylor, Eugene Volokh, Professor of 1st Amendment Law at the UCLA Law School and researcher Craig Anderson from Iowa State University.

The nearly hour-long show began by discussing the Supreme Court’s decision to review California’s violent videogame law with Yee, before moving on to Anderson, who mentioned his recent research. Rehm then indicated that she watched “a bit” of Grand Theft Auto in order to become familiar with the subject, before asking Taylor to explain how popular “these games” are, who is playing them and what the effects are.

SCOTUS Decision Focus of Public Radio Discussion

April 28, 2010 -

Southern California Public Radio yesterday aired a 30-minute segment (MP3) on the California violent videogame law that will be discussed by the U.S. Supreme Court.

California State Senator Leland Yee appeared, and voiced much of the same opinions that he offered up through a mini-podcast his camp released yesterday. Representing the other side was Entertainment Merchants Association (EMA) VP of Public Affairs Sean Bersell.

Bersell framed the current drama as he sees it:

Yee on SCOTUS Decision

April 27, 2010 -

California State Senator Leland Yee (D), the man behind the original legislation that has now made its way to the United States Supreme Court, released a short piece of audio (MP3 here) in which he offers reactions to SCOTUS’ decision to review the law.

Yee termed himself “thrilled” with yesterday’s news, calling it an “affirmation of some of the things that I have been thinking about, working on…”

He called the law a “balanced bill,” saying that “it tries to do what it can to protect and help kids, but at the same time, not trample on our First Amendment.”

Yee on the surprise most felt when hearing that SCOTUS would review the case:

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Breaking: SCOTUS Will Review Schwarzenegger v. EMA (Update 3)

April 26, 2010 -

Via Orders of the Court (PDF) just issued at 10:00 AM ET this morning, The Supreme Court of the United States has granted the petition for a writ of certiorari to the California side of Entertainment Merchants Association (EMA) v. Schwarzenegger.

This means that the nation’s top court will indeed review a decision by the 9th Circuit Court of California in February of 2009, which struck down a California law that would make it illegal to rent or sell violent videogames to consumers under the age of 18. Retailers who violated the law would be subject to fines of up to $1,000.

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Another First Amendment Win in Ohio

April 22, 2010 -

The U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, Ohio has ruled that a state statute, which imposes penalties for disseminating sexually-explicitly material to minors, cannot be applied to open communications, such as websites, public chatrooms or email-based listservs and mailing lists.

In American Booksellers Foundation for Free Expression (ABFFE) v. Strickland, the Court ruled (PDF) that the law should apply only to “personal directed” communication—such as person-to-person email or a private chatroom—“between an adult and a person that the adult knows or should know is a minor.”

The San Francisco Examiner previously noted the importance of the case to a variety of online sellers, including videogame retailers:

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EMA v. Schwarzenegger Back on SCOTUS Radar

April 21, 2010 -

The nation’s highest court will gather this Friday in order to discuss, among other things, whether or not it should review a California law preventing the sale of violent videogames to children.

The Supreme Court’s website shows that Entertainment Merchants Association (EMA) v. Schwarzenegger was “distributed for conference of April 23, 2010.” The order was dated April 20, 2010, giving more credence to popular thought that case number 08-1448 was shelved until a decision was reached on the First Amendment case of United States v. Stevens, in which the Court voted 8-1 that the government cannot outlaw expressions of animal cruelty.

SCOTUS Rules on Case that Could Lead to EMA v. Schwarzenegger Decision

April 20, 2010 -

The Supreme Court today issued a ruling on a First Amendment case that could have a direct impact on the Entertainment Merchants Association v. Schwarzenegger appeal which has been languishing in the nation’s top court.

United States v. Stevens centered on the rights of Robert Stevens to sell or traffic in media that depicted animal cruelty. Stevens was arrested under a 1999 law that attempted to forbid the depiction of cruelty against animals. SCOTUS ruled 8-1 that the government, per the SCOTUS Blog, “lacks the power to outlaw expressions of animal cruelty, when that is done in videotapes and other commercial media.” The decision (PDF) essentially nullifies the 199 law.

Chief Justice John G. Roberts, Jr. wrote that the court “was not restricting the power of government to punish actual acts of animal cruelty,” but that “there was no similar history behind Congress’s attempt to ban video or other portrayals of acts of cruelty to living creatures.”

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ESA Lobbying Funds Rise Nearly $1M from 2008 to 2009

March 24, 2010 -

The Entertainment Software Association (ESA) spent $4.604 million on its lobbying efforts in 2009, a significant jump over 2008’s total of $3.654 million.

The group spent $1.208 million in the second, third and fourth quarters of 2009 and $980,000 in last year’s first quarter. 2008 saw $980,000 spent in quarters two, three and four, and $714,364.50 in its  first quarter.

Taking a look at a report (PDF) on the ESA’s fourth quarter expenditures for 2009 shows lobbying funds spent on issues such as the Constitution (First Amendment Protection, Ratings, Video Game Sale Regulation), Copyright/Patent/Trademark (Anti-Piracy, IP Enforcement), Trade (Free Trade Agreements, Special 301 Designated Countries, Trade Policy Reform), Computer Industry (Internet Governance, Virtual Worlds), Immigration (High-Skilled Workers, H1-B Visas and Green Cards) and Telecommunications (ISP Management, Copyright Enforcement, Broadband Deployment).

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Ohio Court Rules on Case Relevant to Online Game Peddlers

January 29, 2010 -

In a ruling that could have a trickle down effect on online videogame dealers, the Ohio Supreme Court has issued its opinion on what constitutes the distribution of material that is harmful to juveniles, regarding the Internet as a medium.

The American Booksellers Foundation for Free Expression originally levied the suit (Am. Booksellers Found. for Free Expression v. Strickland)  in Ohio, asking a court to overturn Ohio code 2907.31, which broadly deals with the dissemination of matter harmful to juveniles. A federal district court originally concluded that the code was too broad and a violation of the First Amendment, and suggested shelving enforcement of the law. That decision was appealed to a 6th Circuit Court.

The 6th Circuit Court eventually asked Ohio’s Supreme Court for an answer on two specific legal questions swirling around the case:  A) should the scope of the code be applied to instant messaging, person-to-person emails and private chat rooms and B) should material posted on general websites and chat rooms be exempt from liability?

The Ohio Supreme Court answered each question in the affirmative in a 7-0 vote.

The matter will now be returned to the 6th Circuit Court who will determine the codes constitutionality.

The San Francisco Examiner noted the importance of the case for a variety of online sellers:

The group had argued the law could be applied broadly to online material and erode the constitutional free speech rights of online booksellers, newspaper publishers and video game dealers. Technology, they say, can't always keep the harmful information from children.

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Judge: Chicago Transit Authority Cannot Ban VG Ads

January 8, 2010 -

The Entertainment Software Association (ESA) has won a preliminary injunction in its lawsuit against the Chicago Transit Authority (CTA) over the banning of advertisements for adult-rated videogames.

An ordinance (008-147) that took effect in January of 2009 prohibited any advertisement that “markets or identifies a video or computer game rated ‘Mature 17+’ (M) or ‘Adults Only 18+’ (AO).”  The ESA argued that such a ban unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.”

The United States District Court for the Northern District of Illinois granted the ESA an injunction, with Judge Rebecca R. Pallmeyer stating:

…the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.

The ESA further challenged that the CTA ordinance is redundant since videogame-related marketing is already regulated by the Entertainment Software Rating Board’s (ESRB) Advertising Review Council.

ESA President Michael Gallagher was obviously pleased:

This ruling is a win for Chicago's citizens, the video game industry and, above all, the First Amendment. It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources.

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FCC NOI Asks for Comments on Content Control

October 29, 2009 -

The Federal Communications Commission (FCC) has released a Notice of Inquiry (NOI) seeking feedback and responses to the subject of the affect of electronic media on children and whether or not the Commission should have more power to wield authority.

Released on October 23, Empowering Parents and Protecting Children in an Evolving Media Landscape presents some of the influence (both pro and con) emerging media has on youngsters, before asking for additional data on these subjects. Specifically the FCC is seeking “information on the extent to which children are using electronic media today, the benefits and risks these technologies bring for children, and the ways in which parents, teachers, and children can help reap the benefits while minimizing the risks.”

The FCC also is asking commenters to “to discuss whether the Commission has the statutory authority to take any proposed actions and whether those actions would be consistent with the First Amendment.”

FCC Chairman Julius Genachowski included a statement with the NOI in which he noted that “twenty years ago, parents worried about one or two TV sets in the house,” while today, media choices are far more widespread for children, including videogames, which “have become a prevalent entertainment source in millions of homes and a daily reality for millions of kids.”

Genachowski continued:

This Notice of Inquiry recognizes the importance of undertaking a comprehensive approach to assessing how children can best be served in the digital media landscape. The vital role of government in this media environment is therefore to empower parents and protect children, while honoring and abiding by the First Amendment.

Thanks2 Sean

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Law of the Game Picks Apart MSU Law Research Paper

October 26, 2009 -

Joystiq’s latest Law of the Game column breaks down the theories of a research paper released last week by a Michigan State University College of Law Professor.

The paper’s author, Renee Newman Knake, argued that videogame legislation advocates could take cues from the environmental movement and employ “ecogenerism” in their bid to improve the chances of such legislation being passed in the future.

Mark Methenitis, the author of the Joystiq piece, begins by noting that Knake’s premise “starts from the basic flawed premise that we have ‘proven’ a ‘causal’ link between media violence, specifically video game violence, and real world violence.”

Methenitis then picks apart Knake’s focus on “ecogenerism,” or controlling “pollutants” (videogames in this case) in a child’s environment. He offers multiple responses to Knake, including the following analogy:

A multi-vitamin for children, in appropriate doses, has many positive and no negative side effects, except in rare cases. However, an overdoes of vitamins can be fatal. Parents who bring home vitamins don't put them out in a dish on the floor and let the kids go nuts with them; they keep them in a childproof container and give them one a day.

Methenitis concludes that the views of this research paper are “at best, a rose by any other name,” offering:

The courts have frequently said that the activity of the bedroom is beyond the scope of government control, and I, for one, think the activity of the living room should be as well.

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Senator Yee Honored with FAC Award

October 23, 2009 -

The office of California State Senator Leland Yee (D-San Francisco) let us know that the politician has been honored by the First Amendment Coalition (FAC) with its Beacon Award.

The award recognizes Yee’s “legislation in support of government transparency and the rights of student journalists and their advisers.”

The original author of California’s videogame law, which is still sitting in appeal before the United States Supreme Court, said about the award:

There is little that I take greater pride in than our legislative efforts to increase transparency of government and protect the speech rights of California students.  With the help of the First Amendment Coalition, we have passed landmark open government laws.  Unfortunately, at times, we have also fallen victim to the Governor's veto pen.

Yee was one of four Beacon Award winners. Full details can be viewed here.

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Research Paper Offers Cues for Game Legislation Advocates

October 19, 2009 -

A research article penned by a Michigan State University College of Law Professor examines video game related legislation and asks if prompts can be gleaned from the environmental law and ethics movement in order for such legislation to have a better chance of being passed in the future.

From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations was written by Renee Newman Knake.

The heart of the matter, writes Knake, is “the disconnect between law and social science,” or the reluctance of U.S. courts to recognize (what she terms) the consequences mass media has on children.

Knake writes:

Environmentalists successfully established a regulatory framework for evaluating empirical science in the face of uncertainty and arguments questions about the validity of research. The movement to protect children from media harm can do so as well.

Knake’s paper relies heavily on the research of Barbara Bennett Woodhouse, who coined the term “ecogenerism,” or someone who thinks about child welfare as well as a wide range of other problems confronting children and society.

Thus, Woodhouse concludes that research “clearly establish[ing] but fall[ing] short of conclusively proving a causal connection between harm to children and exposure to media violence” could be relied upon by legislators in adopting regulations so long as it is rooted in science, not popular opinion.

She concludes:

The law’s continued refusal to recognize mass media and marketing harm to children has left researchers and regulators in a strange position, waiting until science might sufficiently advance to satisfy a court’s causality requirements and in the meantime engaging in a seemingly fruitless exercise of tweaking statutory language in an effort to survive First Amendment strict scrutiny.

The full paper can be downloaded here.

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Judge Able to Resist PSN Lawsuit

October 1, 2009 -

The case of a gamer who sued Sony Computer Entertainment America (SCEA) over being banned from the PlayStation Network has been tossed out of court.

After being banned for “multiple violations” on PSN, the Resistance: Fall of Man player Erik Estavillo had sued SCEA for violating his First Amendment rights (for the PSN ban) and for money he had invested into the PSN Wallet Fund. He sought $55,000 and an injunction that would limit SCEA from banning any players in any form on the network.

Northern District of California District Judge Ronald M Whyte ruled that there was no plausible First Amendment claim for relief stated and dismissed the case.

The Technology & Marketing Law Blog (via Gamasutra) zeroed in on one specific comment of Whyte’s, that “Sony's Network is not similar to a company town.” Blogger Eric Goldman wrote:

…this opinion emphatically rejects a meme that has become pretty popular among virtual world exceptionalists. Some exceptionalists have favored the company town analogy because it enable virtual world customers to reduce an operator's ability to run its business capriciously.

A PDF version of the Order Granting Defendant's Motion To Dismiss is also available on the aforementioned blog.

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EMA v. Schwarzenegger: Half-way Home?

September 30, 2009 -

As noted earlier this week, the Supreme Court was scheduled to look into an appeal of Entertainment Merchants Association v. Schwarzenegger yesterday, September 29.

EMA v. Schwarzenegger was not on the list of Miscellaneous Orders issued this morning by SCOTUS, which could mean that the petition was denied. When considering a petition for certiorari, SCOTUS will deny such appeals without comment, but the official outcome won’t be known for sure until Monday morning, when an Order List is issued from the Court.

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Supreme EMA v. Schwarzenegger Decision Within a Week

September 28, 2009 -

The United States Supreme Court is scheduled to address an appeal of a Californian videogame law tomorrow, September 29.

Entertainment Merchants Association v. Schwarzenegger (formerly known as The Video Software Dealers Association (VSDA) v. Schwarzenegger), revolves around a Californian law that banned the sale of certain videogames to anyone under 18 years of age. First signed into law by Schwarzenegger in 2005, the law was rejected again in February of 2009 by the 9th Circuit Court of California, which upheld an earlier 2007 ruling that deemed the law unconstitutional.

Schwarzenegger and California Attorney General Jerry Brown appealed to the Supreme Court in May of this year, marking the first time a case involving the restriction of violent game sales to minors has ever been considered by the top court of the United States.

As part of the proceedings, The Supreme Court will also decide whether to accept the amicus brief filed by California State Senator Leland Yee (D) in July of 2009. In the brief, Lee, who authored the original statute at the center of the whole case, argues why the Supreme Court should approve the state of California’s petition for a full hearing. He was supported in the brief by the California Psychiatric and California Psychological Associations.

The Supreme Court’s decision could take a few days or more. A final decision should be made public by next Monday, October 5.

Update: Just to clarify, The Supreme Court did consider a similar topic when ruling on American Amusement Machine Association et al. v Kendrick et al. in 2001, when it denied the City of Indianapolis' petition for certiorari. That case centered on an attempt by the city to limit the display and operation of currency-based machines deemed harmful to minors.

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ESA Releases Annual Report

August 28, 2009 -

Video game publishers group ESA has released its annual report for the 2009 fiscal year, which concluded at the end of March.

As noted by Venture Beat,

The ESA fought 43 bills aimed at regulating content or controlling access to video games and none became law... Meanwhile, five states enacted tax incentives for the creation of game development jobs. Another 17 states are considering enacting the incentives.

The group said that it will be hard to get the attention of the federal government and Congress, which is preoccupied with issues such as climate change and healthcare. The ESA wants more done to stop piracy of games...

U.S. Supreme Court: Video Game Biz States its Case in California Violent Video Game Law Appeal

July 23, 2009 -

Sometime this fall, the U.S. Supreme Court is expected to review California's appeal of lower court rulings striking down its 2005 violent video game law as unconstitutional. Yesterday, the video game industry submitted its position to the Court.

In a 41-page brief compiled by attorney Paul Smith of Jenner & Block, the game industry relies heavily on precedents set by a history of failed attempts by state and local governments to impose age-based restrictions on video games. Indeed, the game biz has never lost such a case and Smith has been their successful point man for many years. From the brief:

Despite [California's] efforts to conjure up some argument for review of the Ninth Circuit’s decision, in reality the decision is a routine application of established First Amendment principles to a content-based ban on protected expression.

Petitioners offer no persuasive reason for the Court to review this ruling. There is no split of
[past decisions] on the questions presented. To the contrary, the lower courts are unanimous as to the constitutionality of bans on distribution of violent video games. That is unsurprising...

California was not the first state to try to restrict distribution of video games it considered too violent for minors. Such laws have proved politically popular, but every one has been struck down under the First Amendment...

Smith and his fellow attorney also dig into California's assertion that children should be legally shielded from violent video games as they are from obscenity. California's causation arguments, which attempt to link violent video games to violent behavior, are also taken to task.

DOCUMENT DUMP: Grab a copy of the game industry brief here (41-page PDF)...

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What the CTA Ad Ban Has to Say About Violent Video Games

July 23, 2009 -

As GamePolitics and other news outlets have reported, the ESA is suing the Chicago Transit Authority over the agency's ban on M and AO-rated video ads.

Here are excerpts from the justification section of CTA Ordinace 008-147, the document at the heart of the ESA lawsuit:

WHEREAS... the Chicago Transit Board established advertising guidelines permitting certain advertising in or upon Chicago Transit Authority vehicles and facilities; and

 

WHEREAS, According to an August 2008 Chicago Sun Times article at least 36 Chicago public school students have been killed since September 2007; and

 

WHEREAS, There is a demonstrable correlation between intensely violent video or computer games and violent or aggressive behavior (see "Video Game Violence and Public Policy" by David Walsh, Ph.D. and "The Effects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School Performance" by Gentile, Lynch, Linder and Walsh; and

 

WHEREAS, There is evidence that many of these violent video or computer games are marketed toward children under 17 years of age (see Federal Trade Commission study, September, 2000)...

The 2000 FTC report is, indeed, an indictment of video game industry marketing practices. On the other hand, the industry has made remarkable strides since then in restricting the access of minors to violent games.

In its May, 2008 report, the FTC found an 80% overall compliance rate in retail ratings enforcement, with top performer GameStop achieving a 94% compliance rate. Given that the CTA ordinance was passed in November, 2008, it's unclear why the 2000 data was used.

The full CTA ordinance may be found as "Exhibit 2" in the ESA's lawsuit. Click here for a copy of the 70-page PDF.

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Faced with ESA Lawsuit, CTA Defends Ban on M-rated Game Ads

July 23, 2009 -

A spokeswoman for the Chicago Transit Authority has commented on the federal lawsuit filed against the agency's ban on M-rated video game ads yesterday by the Entertainment Software Association.

Kotaku reports:

Reached for comment... Wanda Taylor, a spokeswoman for the Chicago Transit Authority, told Kotaku that the authority has not yet been served with the suit but that they feels that the ordinance is defensible.

"The CTA does not allow advertising for alcohol or tobacco products and this ordinance is consistent with that long-standing policy," she said...

Taylor pointed out that they have a number of guidelines in place for determining if an advertisement can run on the CTA. The guidelines, she said, require ads to be truthful and not directed at inciting imminent lawless action. The ads cannot be legally obscene, sexually explicit, depict nudity or portray graphic violence nor can they incite lawless illegal action.

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Media Coalition Gets Behind Game Biz Lawsuit Against Chicago Transit Authority

July 23, 2009 -

As GamePolitics reported yesterday, the Entertainment Software Association has filed suit against the Chicago Transit Authority. The video game publishers' lobbying group hopes to overturn the CTA's ban on ads for M and AO-rated games on its vehicles and facilities.

The Media Coalition, an association that defends the First Amendment rights of producers and consumers of First Amendment protected material, has issued a press release announcing its support for the ESA in the case. Executive Director David Horowitz commented on the situation:

Ex-[Illinois] Governor Blagojevich spent hundreds of thousands of dollars unsuccessfully to defend a law that barred minors from buy or renting similar video games before it was struck down as unconstitutional. The Chicago Transit Authority should repeal this ill-conceived ordinance rather than using scarce resources to fight this in court and get the same result.

The ESA, which represents U.S. video game publishers, is a Media Coalition member as is the Entertainment Merchants Association, which represents video game retailers.

The Entertainment Consumers Association, which represents the interests of gamers, is also a Media Coalition member.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

ESA Sues Chicago Transit Authority over Ban on M-Rated Game Ads

July 22, 2009 -

The Entertainment Software Association has filed a federal lawsuit against the Chicago Transit Authority, challenging a 2009 CTA ordinance which prohibits ads for games rated M (17+) or AO (18+) from appearing on its vehicles and facilities. 

GamePolitics readers may recall that in April, 2008 the CTA ordered ads for Grand Theft Auto IV removed from buses even before the game was released. The CTA action followed local news coverage of a rash of shootings in Chicago.

Shortly thereafter, GTA IV publisher Take-Two Interactive sued the CTA, charging that the agency had broken a $300,000 contract for the campaign. The parties settled the case later in 2008, with the CTA granting T2 a six-week GTA IV ad run. However, CTA officials moved to block future ads for M-rated games by passing the new ordinance, which took effect on January 1st and prompted today's legal action by the ESA.

ESA boss Mike Gallagher commented on the lawsuit in a press release: 

The CTA’s ordinance constitutes a clear violation of the constitutional rights of the entertainment software industry. Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment. The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.

The press release also explains some of the legal rationale behind the suit:

The ESA’s suit contends this new ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” In addition, the Complaint argues that the ordinance impermissibly discriminates on the basis of viewpoint and ignores less restrictive means of achieving the supposed ends of the ordinance.  

The ESA also stated that the CTA’s ordinance is unnecessary because game-related marketing is already subject to the Entertainment Software Rating Board’s Advertising Review Council (ARC), which strictly regulates computer and video game advertisements that are seen by the general public.  The Entertainment Software Rating Board (ESRB) assigns content ratings to computer and video games, which, in turn, are displayed on the advertisements for those games.

As GamePolitics has reported, the Massachusetts Bay Transit Authority has a similar ban on M-rated game ads, likening them to X-rated movies. It is unclear at this time whether the ESA will pursue a similar action against the MBTA.

While the lawsuit also encompasses AO-rated games, as a practical matter, such titles are virtually non-existent in the U.S. market.

DOCUMENT DUMP: Grab a copy of the lawsuit here (70-page PDF)...

Yee, Pysch Associations Will File Amicus Brief with Supreme Court on California Violent Video Game Law Appeal

July 21, 2009 -

Via press release, GamePolitics has learned that California State Sen. Leland Yee (D) will be joined by a pair of mental health organizations in filing an amicus curiae (friend of the Court) brief with the United States Supreme Court tomorrow in support of the state's petition to overturn a 9th Circuit Court ruling that California's 2005 violent video game law - drafted by Yee - is unconstitutional.

The official announcement will be made at 10:00 A.M. Pacific Time by Yee and representatives of the California Psychiatric and California Psychological Associations. Sen. Yee is a child psychologist by trade.

GamePolitics will have more - including a copy of the brief - in our Wednesday coverage.

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First Amendment Expert Rips California's Violent Video Game Law

July 14, 2009 -

A veteran First Amendment attorney has ripped California's 2005 violent video game statute along with Gov. Arnold Schwarzenegger, who signed the measure into law.

As GamePolitics has extensively reported, in May California petitioned the U.S. Supreme Court to review lower court rulings which held that the measure is unconstitutional. The Court is expected to announce its decision in the fall.

Broadcasting & Cable reports on criticisms of the California law penned by Robert Corn-Revere (left):

In 2009, the killer cyborg turned governor has materialized in the present from the past in a plot to undermine the First Amendment.

In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that 'excessively violent' material-whatever that may be-'deserves no constitutional protection.' It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to "reasonable inferences" and legislative judgments.

If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.

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Video Games and the First Amendment

July 10, 2009 -

Over at GameTopius, paralegal-in-training Nikhil Baliga (who also has degrees in Political Science and Psychology) serves up a look at First Amendment issues as they relate to games.

While Baliga does a nice job of tracing some of the major case law, the article's main points could be stated with more clarity. This paragraph, for example, seems to imply that video games are not necessarily constitutionally-protected speech (they are):

What well intentioned, but usually ill informed, video game advocates often assume is that video games are constitutionally protected free speech. While there can be no doubt that video games are speech, the Supreme Court has stated that not all speech is constitutionally protected.

Later, Baliga explains that this is a reference to video games which might be considered legally obscene under the so-called Miller Test. The fact is, however, that the likelihood of that happening in the U.S. market, given the ESRB rating system, console licensing requirements and screening by major retailers, is roughly nil.

While there could be a non-commercial game or import (say, RapeLay) that might - might - meet the Miller obscenity standard, implying that commercial video games are not protected speech is roughly akin to saying that Hollywood movies aren't necessarily protected speech because there are also kiddie porn films.

Still in all, worth a read.

GP: Readers should note that Baliga is not a lawyer and neither is GP. So, take both opinions with the appropriate grain of salt.

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Video Games Are Equivalent to Fighting Words, Conservative Group Argues in Supreme Court Brief

June 26, 2009 -

The conservative Eagle Forum has filed an amicus (friend of the Court) brief with the United States Supreme Court in support of California's 2005 violent video game law.

As GamePolitics reported last month, California Attorney General Jerry Brown petitioned the High Court to review a U.S. District Court ruling that the state's 2005 law blocking the sale of violent games to minors is unconstitutional. A three-judge panel of the 9th Circuit Court upheld the District Court decision in a February ruling.

The family values group, founded by conservative Phyllis Schlafly (left) in 1967, filed the brief on Monday. The document was authored by Andrew Schlafly, son of Phyllis and founder of Conservapedia (sort of the anti-Wikipedia). In the amicus brief, the Eagle Forum lays an array of societal problems at the feet of violent video games: bad grades, violent behavior, poor graduation rates, school shootings, game addiction and even sudden death.

We'll let the Eagle Forum's laundry list speak for itself (with a little help from GP's trusty red pen):

The First Amendment does not render our nation’s youth defenseless against the predatory, billion-dollar video game industry that churns out increasingly graphic blood and gore for impressionable minds to imbibe...

 

The corruption of our nation’s youth with increasingly deviant video games is a matter of national importance. Our nation’s youth is in crisis, by any measure. A calamitous 30% of our nation’s youth fail to graduate from public high school, and only 32% of those who attend public high school are ever qualified to attend a four-year college...

 

A substantial percentage of teenagers are hooked on these disturbing video games, and spend many hours each week playing them. Moreover, mass killings perpetrated by youngsters are frequently linked to addiction to violent video games...

 

The First Amendment does not forbid state legislatures from keeping this harmful material from children. The California legislature, not known to be conservative, protected its youth against the predatory video game industry. It was an error with national implications for the Ninth Circuit to invalidate the California statute...

Violent video games hurt children in two ways. Their increasingly realistic and disturbing images burn into children’s impressionable minds much as pornography does, and the role-playing inherent in a video game causes the child to buy into the rampages of murder and other heinous crimes that he is acting out...

 

The early market leader in video games was Nintendo, which adopted a policy against “excessive blood and violence,” but it was trounced in sales by a 3 to 1 margin by more gory material produced by Sega, and Nintendo learned the message that “violence sells video games to children...”

 

Numerous studies confirm the obvious: violent video games do cause addiction and harm... There has never been a full First Amendment right to flash highly objectionable and disturbing images specifically at children, or to entice them to participate in destructive role-playing behavior...

Displaying a shocking image to a child is conceptually identical to the utterance of “fighting words” to an adult, which this Court famously held to be out-side of First Amendment protection...

The stress attributed to violent video games can even be physically harmful. Eighteen-year-old Peter Burkowski, an avid video gamer, collapsed and died of a heart attack while playing games in an arcade...

 

Children who play violent video games have difficulty obeying authorities, treating peers properly, and succeeding in school...

DOCUMENT DUMP: Grab a copy of the Eagle Forum's amicus brief here.

250 comments

T2 CEO: Government Should Not Determine the Games You Buy

June 24, 2009 -

Eurogamer caught up with Take-Two Interactive CEO Ben Feder for a wide-ranging interview which is now available on the site.

While much of the conversation deals with various T2 games, Feder did touch upon the Manhunt 2 controversy and the notion of government censorship of games:

We firmly believe that games are art. A), we have the right to produce art. B), the consumer should have the right to make their own choices, providing the labelling on the package is clear about the content of the game.

Apart from that, I don't think it's the role of governments to determine what you or any of your readers can, or should, buy. They should be able to make their own choices. Government has no role in that at all...

Asked whether the interactive nature of games requires them to be viewed apart from, say, movies, Feder said:

It's not a difference with distinction... It's as if to say art as a painting is different than art as a sculpture. For sure they're different art forms and they use different mediums, but they're art nonetheless - they're forms of expression.

That, at least in the United States, is something that's guaranteed by the constitution, and in democracies in Western Europe there are very similar concepts about the ability for individuals to express themselves. If you stifle that, then society and the economy pay a pretty heavy toll.

Of particular interest given the ongoing RapeLay controversy, Feder was asked whether T2 might theoretically permit edgy developer Rockstar to create a game featuring sexual violence or abuse of children, Feder commented:

Look, I suppose there's a line somewhere. I don't think we've even come close to it. At the end of the day, we're also a commercial enterprise and we do intend to turn a profit with our games. That, in and of itself, provides a certain boundary beyond which we won't go.

I suppose there are more lines [beyond] which we'd be uncomfortable, but I don't think any of our games in the past, or any of our games that I've seen in development, come even close to that.

27 comments

With California Video Game Law Before the Supreme Court, Nominee Sonia Sotomayor Has Mixed Record on Free Speech

May 28, 2009 -

Now that California has asked the U.S. Supreme Court to consider whether its 2005 violent video game law is constitutional, President Obama's recent nomination of Judge Sonia Sotomayor to the Court takes on added significance for the video game industry.

That being the case, where does Sotomayor stand on free speech issues? Her record appears to be  mixed, according to a source with knowledge of the legal issues involved in the California appeal.

On the plus side for the video game industry, Sotomayor dissented from a majority of her colleagues on the 2nd U.S. Circuit Court in Pappas v. Giuliani. In her dissent, Sotomayor wrote that an NYPD officer should not have been fired for responding, off-duty, to an e-mail request for a charitable donation with a racist and bigoted language. As SCOTUSblog reports:

She acknowledged that the speech was 'patently offensive, hateful, and insulting,' but cautioned the majority against 'gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.'

On the other hand, Fordham Prof. Paul Levinson - who has argued free speech issues with Jack Thompson - writes that Sotomayor should be disqualified from the High Court over a what he calls a "bad 1st Amendment Decision."

In the case, Doninger v. Niehoff, Sotomayor and her 2nd Circuit colleagues supported high school officials who barred a student from holding class office after the young lady referred to school officials as "douchebags" in an off-campus blog. While the courts have traditionally given school officials some degree of leeway in maintaining order, Levinson remains concerned about Sotomayor:

[Retiring Justice] David Souter was a surprise to the Republicans who appointed him... His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.

We cannot afford or risk a Souter in reverse with this new appointment - a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

Meanwhile, the California appeal has been docketed by the Supreme Court. The video game industry has until June 22nd to submit its response to California's petition.

UPDATE: Paul Smith of Jenner Block, who has been the video game industry's lead attorney in challenging video game legislation over the years, discusses the cases mentioned here on Talk Radio News and describes Sotomayor as:

She's a careful person who could go either way, but is focused on not just broad doctrine but how the doctrine applies to particular factual situations. Certainly that's true in the First Amendment free speech area.

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MaskedPixelanteNumber 3: Night Dive was brought to the attention of the public by a massive game recovery, and yet most of their released catalogue consists of games that other people did the hard work of getting re-released.04/17/2014 - 8:46pm
MaskedPixelanteNumber 2: If Humongous Entertainment wanted their stuff on Steam, why didn't they talk to their parent company, which does have a number of games published on Steam?04/17/2014 - 8:45pm
MaskedPixelanteNumber 1: When Night Dive spent the better part of a year teasing the return of true classics, having their big content dump be edutainment is kind of a kick in the stomach.04/17/2014 - 8:44pm
Matthew Wilsonhttp://www.giantbomb.com/articles/jeff-gerstmann-heads-to-new-york-takes-questions/1100-4900/ He talks about the future games press and the games industry. It is worth your time even though it is a bit long, and stay for the QA. There are some good QA04/17/2014 - 5:28pm
IanCErm so they shouldn't sell edutainment at all? Why?04/17/2014 - 4:42pm
MaskedPixelanteNot that linkable, go onto Steam and there's stuff like Pajama Sam on the front-page, courtesy of Night Dive.04/17/2014 - 4:13pm
Andrew EisenOkay, again, please, please, PLEASE get in a habit of linking to whatever you're talking about.04/17/2014 - 4:05pm
MaskedPixelanteAnother round of Night Dive teasing and promising turns out to be stupid edutainment games. Thanks for wasting all our time, guys. See you never.04/17/2014 - 3:44pm
Matthew WilsonAgain the consequences were not only foreseeable, but very likely. anyone who understood supply demand curvs knew that was going to happen. SF has been a econ/trade hub for the last hundred years.04/17/2014 - 2:45pm
Andrew EisenMixedPixelante - Would you like to expand on that?04/17/2014 - 2:43pm
MaskedPixelanteWell, I am officially done with Night Dive Studios. Unless they can bring something worthwhile back, I'm never buying another game from them.04/17/2014 - 2:29pm
PHX Corphttp://www.msnbc.com/ronan-farrow/watch/video-games-continue-to-break-the-mold-229561923638 Ronan Farrow Daily on Video games breaking the mold04/17/2014 - 2:13pm
NeenekoAh yes, because by building something nice they were just asking for people to come push them out. Consequences are protested all the time when other people are implementing them.04/17/2014 - 2:06pm
Matthew Wilsonok than they should not protest when the consequences of that choice occur.04/17/2014 - 1:06pm
NeenekoIf people want tall buildings, plenty of other cities with them. Part of freedom and markets is communities deciding what they do and do not want built in their collective space.04/17/2014 - 12:55pm
Sora-ChanI realize that they have ways getting around it, but one reason might be due to earthquakes.04/17/2014 - 4:42am
Matthew WilsonSF is a tech/ economic/ trade center it should be mostly tail building. this whole problem is because of the lack of tail buildings. How would having tail apartment buildings destroy SF? having tail buildings has not runed other cities around the US/world04/16/2014 - 10:51pm
Matthew WilsonAgain the issue is you can not build upwards anywhere in SF at the moment, and no you would not. You would bring prices to where they should have been before the market distortion. those prices are not economic or socially healthy.04/16/2014 - 10:46pm
ZippyDSMleeYou still wind up pushing people out of the non high rise aeras but tis least damage you can do all things considered.04/16/2014 - 10:26pm
ZippyDSMleeANd by mindlessly building upward you make it like every place else hurting property prices,ect,ect. You'll have to slowly segment the region into aeras where you will never build upward then alow some aeras to build upward.04/16/2014 - 10:25pm
 

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