Following a lively debate last night, the Utah State Senate passed HB 353 by an overwhelming 25-4 margin.

But photos taken during the Senate debate suggest that the influence of disbarred anti-game activist Jack Thompson stretched all the way from Miami to Salt Lake City, perhaps impacting the outcome of the HB 353 vote. As GamePolitics has previously reported, the bill was originally conceived by Thompson.

One of those who rose in support of HB 353 last night was Sen. Chris Buttars (R). A strong supporter of conservative causes, Buttars has been in political hot water in recent times over controversial remarks concerning African-Americans and gays.

Speaking during the debate, Buttars recounted the story of Devin Moore, the 18-year-old Grand Theft Auto gamer who killed two police officers and a dispatcher during a 2003 rampage in an Alabama police station. Jack Thompson later filed a $600 million wrongful death suit against Rockstar, Take-Two, Sony, Wal-Mart and GameStop in the case. Thompson, however, was later thrown off the case by an Alabama judge.

Buttars also commented on the developing teenage brain - another recurring theme of Thompson's. In fact, while following the live webcast of the debate, GP issued several tweets noting the apparent Thompson influence:

Sen. Buttars up now. He is Gayle Ruzicka's ally. He is telling the Devin Moore story (GTA player who killed 3 police in Alabama).

Clearly a Jack Thompson influence here. JT sued Rockstar, Sony, GameStop, Wal-Mart over the case until judge threw him off the case in 2005

Buttars now offering brain physiology lesson, also courtesy of the man from Miami.

This morning we received an e-mail from Salt Lake Tribune columnist Glen Warchol who forwarded a pair of pictures he took during the debate last night. The photos confirm the Thompson connection. In one, Buttars is seen reading from a book while addressing the Senate. In another, Jack Thompson's 2005 book Out of Harm's Way is shown resting on Buttars's desk on the Senate floor. The audio of Buttars' comments includes this verbatim quote of NIMF head Dr. David Walsh, found on page 182 of Thompson's book:

The impulse control center of the brain, the part of the brain that enables us to think ahead, consider consequences and manage urges, that's the part of the brain right behind our forehead called the prefrontal cortex. That's under construction during the teenage years. In fact, the wiring of that is not completed until the early twenties.

After reading the passage, Buttars told his Senate colleagues:

You got a problem here. You got an epidemic here... We need to pass this bill.

GamePolitics asked Thompson to comment:

I had never heard of Buttars until you wrote about him.  I have never talked with him, never communicated with him.  I'm delighted he read from my book.  Most in the legislature, I assume have read it.  I asked nobody to read from my book, and I would never do such a thing.  But it's a fabulous book, as you know.   

DOCUMENT DUMP: Grab an mp3 of Buttars channeling Thompson during last night's Utah Senate debate (3:29, 3mb).

The Christian conservative website WorldNetDaily has got its undies in a twist over an option that permits same-sex couples in Hasbro's The Game of Life.

The downloadable PC title is an update of the classic board game of the same name. WND writes:

The online version of a popular board game from many Americans' childhood includes an option for players to choose homosexual marriage and child-rearing as a way of life... even children can download and play a free trial version of The Game of Life, the first game ever created by Mr. Milton Bradley in 1860.

The player's first option in the online version is to choose a persona based on pictures that clearly depict men and women. Shortly thereafter, the game invites players to choose a spouse, regardless of the potential spouse's sex...

But, as WND notes, the modern version of the board game, created in 1960, allowed for gay unions as well:

The board game did not prevent players in any way from placing two pink or two blue pegs in the front seat [of the playing piece representing the family car], thus depicting a homosexual couple.

GP: Got this tip from none other than Jack Thompson during the course of seeking comment on last night's passage of the Utah video game bill.

Despite the Utah State Senate's passage of HB 353 by an overwhelming 25-4 margin, the bill is racing against the clock to survive.

Because the Senate amended the bill (more about that later) it now must go back to the Utah House for approval.

The catch is, that all has to happen by midnight in Salt Lake City. Which means that, as I write this, there are about 5.5 hours to get this done. The House is on a dinner break at this moment, which ends at 7:00 P.M. their time, leaving five hours of actual time to work on legislative business.

It seems doable, but HB 353 isn't listed on the House activity calendar yet, so...

UPDATE: Jack Thompson, who drafted the original version of the bill, commented on the time pressure in an e-mail to GamePolitics:

Now it's back to the House with the amended Senate bill, which applies to all sales, including Internet sales. This is fun, and the question is, does it strike midnight before we win?

UPDATE 2: HB 353 status page shows that the House has concurred with the Senate amendments. Next stop for the bill is Gov. Huntsman's desk.

It's crunch time for HB353, the video game/movie bill under consideration by the Utah State Senate.

The measure must pass the Senate by midnight or it will die. HB353 will begin the day at #26 on the Senate's to-do list.

The bill was approved 70-2 last week by the Utah House.

GamePolitics will be updating the bill's status throughout the day, and you can check for yourself, too. Here's how:

 - at this link, click S2ND, the last entry under "Location." This will tell you where the bill is in line for Senate consideration.

 - check the Senate calendar for today's date. During the hours when the senators are in session, you can watch or listen, live. It's a very nice feature that we wish all legislative bodies offered. FYI, Utah is on Mountain Time.

HB353 has been especially hot over the last few days with the ESRB and bill sponsor Rep. Mike Morley trading rhetoric and the conservative Media Freedom Project calling on Utah Gov. Jon Huntsman to opposed the measure.

For all of GP's HB353 coverage, click here.

The sponsor of a Utah bill that could punish sales of M-rated games to minors with false advertising charges has questioned the video game industry's commitment to its own rating system in an e-mail to GamePolitics.

GP readers may recall that last Friday, ESRB President Patricia Vance penned an unprecedented open letter to "Utah's parents and leaders."

In the letter, Vance took issue with HB 353, a bill originally conceived by disbarred Miami attorney Jack Thompson. The measure passed the Utah House last week by an overwhelming 70-2 majority and is now under consideration by the State Senate.

Although the amended bill passed by the Utah House was substantially watered down in comparison to its original version, it is clearly still a source of concern to the video game industry, hence the Vance letter.

GamePolitics asked Utah Rep. Mike Morley (R), the sponsor of the bill, to comment on the ESRB's open letter. We received Morley's response last night and are re-printing it here, in full:

It is interesting to me, given the voluntary efforts and the pledges taken by many retailers to work with parents and children to understand the appropriateness of video game content, that a bill such as HB 353 would have any concern at all for them, particularly given the safe harbors I have provided in the bill.  It causes me concern when I see a letter such as [Vance's] which threatens to completely withdrawn efforts and leads me to believe that the video game industry is not truly committed to the standards they espouse in their advertising.

HB 353 is not punitive.  It gives safe harbor to retailers who provide training and to their employees.  This provides protection to those retailers whose practice corresponds to their stated intent of refusing to sell inappropriate materials to minors.  I would think good retailers who enforce their stated policies, as well as industry at large, would welcome this legislation.  Only those bad actors who are receiving good will for advertising family-friendly policies and then not enforcing that policy would have any potential affect from HB 353.

I applaud ESRB for their work over the past decade and a half. Certainly, their efforts to regulate the gaming industry and implement an effective rating program which is embraced by the producers of both games and gaming equipment is a significant accomplishment and provides peace of mind to parents across the nation.  As the father of eight sons who all love to play video games, I express my appreciation for their efforts.

As I have been made aware of the content – explicit sexuality, rape, murder, graphic violence, gore – contained in many of the Mature games, I have great concern about this material reaching even one child.  While there is nothing I or ESRB can do about that, we can support actions which will require accountability of those few retailers in our state who consistently disregard their own advertised policies, policies upon which parents rely for an added layer of protection for their children.

GP: HB353 is now listed on the Utah State Senate's debate calendar. If it is to be passed, that action must occur by tomorrow midnight.

PC World's Matt Peckham weighs in on HB 353, the much-discussed Utah bill originally drafted by Jack Thompson.

Peckham agrees with ESRB President Patricia Vance that the bill could prove to be a disincentive to Utah retailers to do the right thing:

The most recent amended version of H.B. 353 is a sobering bellwether of much worse to come if it passes the Utah state senate... Instead of ensuring game retailers do as they say, the bill in fact encourages them to do the exact opposite and stop promising they won't sell Mature-rated games like Fable 2 and Fallout 3 and Resident Evil 5 to underage kids and/or teens.

That's because Utah's H.B. 353 effectively criminalizes retail sales of video games to customers who don't meet a game's ratings strictures...

 

The non-cynical view: H.B. 353 is an attempt to pull game ratings under the umbrella of Utah's prevailing "truth in advertising" guidelines.

The cynical view: The bill's promoters are trying to backdoor anti-ESRB legislation by using a potentially over-broad state policy to increase governmental control of private sector activities and declare self-regulatory triumphs null and void...

UPDATE: Jack Thompson has posted a reply to Peckham's column:

All [major retailers] have publicly committed, and promised Congress, that they will participate in the game rating system and abide by it... They simply cannot now opt out of the ESRB system... Their public endorsement of the rating system is an "advertisement" under this bill...

 

[ESRB head Patricia] Vance says their is an industry "audit" which says that Utah game retailers are 94% compliant with the game ratings. She refuses to produce the audit...

GP: I must point out that Thompson's assertion that a company's merely signing on to abide by the ESRB ratings constitutes an "advertisement" seems a dubious one, at best.

The video game industry is beginning to respond - and not in a positive way - to yesterday's passage of HB353, a Jack Thompson-conceived bill, by the Utah House of Representatives.

As GamePolitics reported late yesterday, the Entertainment Merchants Association, which represents a large bloc of game retailers, remains opposed to the measure.

That news seemed to contradict bill sponsor Rep. Mike Morley's assertion during yesterday's hearing that amendments to the proposal had caused "retailers" to drop their opposition. However, Morley was apparently referring to the more general-purpose Utah Retail Merchants Association (more on that below).

The Escapist heard from Dan Hewitt of game publishers' trade group the ESA:

[HB 353 is] a solution in search of a problem. The fact is, Utah has a 94% [retailer ratings] enforcement rate when it comes to video games. Also, Utah state legislators are unfairly targeting video games. Representative Morley's anti-video game bill would expose game retailers to frivolous lawsuits if the store promotes the ESRB rating system.

The perverse effect of this bill is that Utah retailers will stop promoting the ESRB rating system, which has been applauded by media watchdog groups like the National Institute on Media and the Family and the Federal Trade Commission. In short, this is a step back for parents and undercuts the positive work of the ESRB and others who promote the tools and resources available to parents.

We caught the webcast just as it was beginning. What follows is essentially a live blogging of today's hearing...

The Utah House has just begun deliberations on HB 353, the video game/movie bill originally crafted by disbarred attorney Jack Thompson. The first order of business was to pass amendments to the measure.

With amendments passed the discussion on the bill has begun. Rep. Michael Morley, bill sponsor, is now speaking. Morley can be seen in the screenshot at left, taken moments ago from the webcast of the hearing. View it live.

So far, the legislators who have spoken are uniformly behind the measure, which appears to enjoy bi-partisan support. Speaking on behalf of the bill:

• Rep. Brian King (D)
• Rep. Sheryl Allen (R) - Allen discussed the growing importance of Utah's video game industry
• Rep. Kraig Powell (R)
• Rep. Steven Mascaro (R) - wanted clarification on how bill language affects retailers
• Rep. Susan Duckworth (D) - commended Morley for making amendments and reminded the body of parental responsibility

Rep. Morley, summarizing, said that "retailers" are no longer opposed to the bill, which indicates that the amendments may have watered down the potential impact of HB 353.  Morley said that some movie owners also have dropped their opposition.

Voting now occurring... HB 353 passes 70-2. The measure will now move to the Utah Senate for consideration.

Thompson has just e-mailed a comment:

70-2. This is a huge victory for parents everywhere.  The bill, by the amendments we fashioned, is better. Now we go on to the Senate, where I expect passage, with the Governor then likely to sign it into law!  

UPDATE: The amendments link has been updated to incorporate the most recent changes (Feb. 27).

UPDATE 2: We have learned that the Entertainment Merchants Association, which represents video game retailers, remains opposed to the bill. Morley's comment concerning retailers dropping their opposition was likely referring to the Utah retailers' trade group.

As GamePolitics has previously reported, Jack Thompson is challenging his lifetime disbarment by taking his case to the U.S. Supreme Court.

Thompson was disbarred last October by the Florida Supreme Court. The Court was acting upon the recommendation of Judge Dava Tunis who Tunis presided over a nine-day trial on misconduct charges brought by the Florida Bar in late 2007.

Last month, Thompson filed a petition for a writ of certiorari with the U.S. Supreme Court, essentially an appeal. To decide whether cert petitions go any further, the Supreme Court Justices vote in private conference. If four justices vote for Thompson's petition, it will move on in the process. Without four votes, the case goes no further. At that point, Thompson would seem to have exhausted his options.

According to the SCOTUS docket, Thompson can expect a decision on his cert petition by March 25th.

GamePolitics has obtained a copy of Thompson's cert petition from the Florida Bar. We requested a copy from Thompson, but he declined to provide it.

For those who have followed the long-running Thompson saga, there's little in the cert petition that hasn't been heard before. The disbarred attorney blames the usual suspects for his troubles: Take-Two Interactive, the video game industry, the Florida Bar and its supposed "radical gay agenda," law firm Blank-Rome, Judge Moore from Alabama (who threw Thompson off the Devin Moore case), shock radio, the justices of the Florida Supreme Court and, of course, Judge Dava Tunis.

DOCUMENT DUMP: Grab your copy of Jack Thompson's cert petition here.

Earlier this week GamePolitics posted exclusive transcripts of testimony at Monday's hearing before a Utah House committee which was considering Jack Thompson's video game bill.

Among those appearing before the committe was Thompson ally Gayle Ruzicka, the politically formidable head of the ultra-conservative Utah Eagle Forum.

As we reported, Ruzicka, in an urgent tone, beseeched the committee to approve the Thompson bill: 

These [games] are the kind of things that are training our children. This is the vile stuff. The Grand Theft Auto games are cop-killing murder simulators. And when [Devin Moore] was faced with being arrested he knew exactly what to do. He knew how to aim... at the head and each time killed these [officers]. We don't want this for our children. Not at all. Please, please vote yes today on this bill.

 

Anything we can do to protect our children from the violence, from the filthy pornography that the only way they can get into the pornography is being good at the game. They work hard and get to certain levels and when they get to the high enough levels then they get into the pornography - filthy, vile stuff that you would be appalled and never want your children to see. And then as a reward, they get to kill the women...

Ruzicka's protestations caught the attention of game design blog Third Helix where the author tackled her claims, point by point:

...our industry never steps up to defend ourselves in light of their lies. [Ruzicka is] referring to the Grand Theft Auto games, of course, and her inaccuracies are numerous:

    * There is no pornography in GTA, unless your definition of pornography is “any sexual content or reference of any kind”. The closest thing you’ll get is the Hot Coffee mod for GTA:SA, and the (brief) male nudity in The Lost & The Damned. The comically-low resolution of the former, and the non-sexual nature of the latter, clearly distance them from any generally-accepted concept of pornography.

 

    * GTA does not have “levels”, as it is primarily a sandbox game. The closest analogue is “missions”, which do not always have a strictly linear progression, and the games’ content does not become any more explicit as players progress.

 

    * Explicit content is not used as a reward for gameplay. It is simply the overall tone of the games, and many well-regarded movies do exactly the same thing.

 

    * Killing the prostitutes is not a reward for anything at all, nor is it encouraged. It does provide a marginal “reward” in that you gain a small amount of cash — should you choose to pick it up — but this amounts to virtually nothing in the overall game economy and is not generally worth doing.

I understand that people like Ms. Ruzicka are concerned about their children (and other people’s children, too, apparently). But it would be nice if the things such people are afraid of were actually real, and not inventions of rumor and fevered imagination...

He wasn't on hand to testify and his name wasn't mentioned, but the influence of disbarred Miami attorney Jack Thompson was apparent in yesterday's meeting of the Business and Labor Committee of the Utah House of Representatives.

By a 10-3 vote, committee members approved H.B. 353, a bill drafted by Thompson and sponsored by Rep. Mike Morley. The measure targets the video game and film industries by amending Utah's current Truth in Advertising law. Retailers and movie theaters which advertise that they don't sell M-rated games or R-rated movie tickets to underage buyers and then do so would be liable for fines of $2,000 per incident.

Those testifying on behalf of the bill included Alan Osmond, the most senior of the Osmond Brothers vocal group and Gayle Ruzicka, the politically powerful head of the ultra-conservative Utah Eagle Forum.

For his part, Osmond, read into the record verbatim passages from an e-mail circulated earlier yesterday by Thompson. Osmond, however, did not identify Thompson as the author:

This link shows a montage of sex scenes from the Grand Theft Auto IV game which has been sold and is presently being sold at BestBuy.com, WalMart.com, Target.com, GameStop.com, and at other retailers’ sites, with no age verification whatsoever.

As you can see, there are graphically depicted lap dances in a “gentleman’s club” in this game, including simulation of oral/anal sexual intercourse between women.  The hero in the game then has intercourse, clearly depicted...  The hero then kills the woman by gunfire and running her over with his car.

Now that’s entertainment...

Utah must do something about these major retailers who are flat-out lying to the public when they assert they are not selling this and other similar pornographic “games” to kids when in fact they are...

Conservative power broker Gayle Ruzicka also testified on behalf of the bill with a Thompson-esque flavor, mentioning Devin Moore, the GTA-playing Alabama teen who murdered three police officers in 2004. Thompson, representing the officers' families, subsequently brought suit against Rockstar Games, Sony and others before being thrown off the case by an Alabama judge for professional conduct violations in November, 2005.

For those familiar with Thompson's anti-GTA crusade, Ruzicka's testimony had a familiar tone:

These [games] are the kind of things that are training our children. This is the vile stuff. The Grand Theft Auto games are cop-killing murder simulators. And when [Devin Moore] was faced with being arrested he knew exactly what to do. He knew how to aim... at the head and each time killed these [officers]. We don't want this for our children. Not at all. Please, please vote yes today on this bill.

 

Anything we can do to protect our children from the violence, from the filthy pornography that the only way they can get into the pornography is being good at the game. They work hard and get to certain levels and when they get to the high enough levels then they get into the pornography - filthy, vile stuff that you would be appalled and never want your children to see. And then as a reward, they get to kill the women...

Dick Cornell of the Utah Association of Theater Owners was among those who testified against the bill:

A committee of the Utah House of Representatives will conduct a hearing today on video game legislation drafted by disbarred Miami attorney Jack Thompson.

As GamePolitics has reported, HB 353, sponsored by Rep. Mike Morley (R), would amend Utah's truth in advertising law. Retailers who advertise that products such as M-rated video games or R-rated DVDs will not be sold to underage buyers could face liability if they fail to uphold that standard.

The House Business and Labor Standing Committee will meet at 4:10 local time today to consider the measure.

For more on the background of the bill, check out GP's revealing interview with Rep. Morley.

As GamePolitics reported in January, disbarred Miami attorney Jack Thompson hopes to have his professional status reviewed by the U.S. Supreme Court.

To that end, Thompson filed a petition for writ of certiorari with the U.S. Supreme Court late last week.

Thompson nonetheless faces an uphill struggle. According to its website, the Supreme Court receives petitions to consider about 10,000 cases per year. Only about 100 of those will be granted a hearing.

DOCUMENT DUMP: You can grab a copy of the certificate of service for Thompson's cert petition here. We do not have the actual petition at this time, although we are working to acquire it.

UPDATE: According to the SCOTUS docket, Thompson is due to receive a response to his petition on March 25th.

There was supposed to have been a hearing this morning in the Utah House of Representatives on HB 353, the video game/movie bill authored by disbarred attorney Jack Thompson and proposed by Rep. Mike Morley (R).

Late yesterday, however, the hearing was postponed.

We're speculating, but the reason for the delay may be related to the availability of Thompson ally Gayle Ruzicka (left) of the ultra-conservative Utah Eagle Forum.

The influential Ruzicka, who supports Thompson's bill and would almost certainly have appeared on its behalf, will likely be tied up this morning in an attempt to salvage the political career of another ally, Utah State Sen. Chris Buttars (R). Buttars is in hot water with Senate leadership over some ugly remarks he made about gay people for a documentary film. Buttars has been quoted as saying:

[Gay rights activists are] mean. They want to talk about being nice. They're the meanest buggers I have ever seen... It's just like the Muslims. Muslims are good people and their religion is anti-war. But it’s been taken over by the radical side.

What is the morals of a gay person? You can't answer that because anything goes... [The radical gay movement is] probably the greatest threat to America going down I know of.

Last year, Buttars caused similar outrage in the African-American community after he made offensive comments on the Utah Senate floor. Referring to an education bill then under consideration, Buttars said:

This baby is black... this is a dark, ugly thing.

In recent weeks GamePolitics has devoted a substantial amount of ink to H.B. 353, the video game bill currently under consideration in Utah.

Yesterday, GP spoke with Rep. Mike Morley (R), the sponsor of the measure in the Utah House of Representatives. Morley offered his take on the proposal, which would amend the state's existing truth in advertising law to encompass products such as video games and movies which have age-based content recommendations.

Under Morley's bill, retailers who advertise that they won't sell certain types of content to minors and then do so would be at risk for false advertising claims.

Things got rather strange after the interview, as you will see. It's an instructive lesson in Utah power politics, among other things.

PART I: THE INTERVIEW

GP: Rep. Morley, can you address the origins of H.B. 353?

MM:  I think that there’s a general concern that there are mature video games that are not appropriate for children but somehow end up in the hands of children, even despite best efforts of parents. And I think other friends and peers talk about some of [the games] that would be very inappropriate and they go in and purchase those. So the idea is simply to try to encourage retailers to live by their own policies, if they have those policies in place, and monitor that to the best of their ability.

It’s a small incremental step, and it’s not  - I think we’ve taken it in a direction that I don’t know has been taken before. And it’s not, I don’t think it encroaches into the free speech or any of those areas. We’re not saying that, if a video retailer has a policy to go ahead and sell to minors, then that’s fine, there’s nothing that we can do about that. But if they purport to not sell to minors and they do that as a matter of practice I think that this just calls attention to that.

GP:  What would be the penalties under the proposal if, for example a company said that they wouldn’t sell an M-rated game to a minor and one did get sold. What would be the penalty for that?

MM: Well, I don’t know if one got sold, I think we’re looking at it as a matter of practice. But it’s not trying to be a sting operation. What it does is that it basically opens [game retailers] up to the same code and the same civil penalties – it’s not a criminal action.  So it would be the same penalties that they would be subjected to if they engaged in any other truth in advertising problem or claim. I’m not certain what the penalty is but it would be the same as any truth in advertising claim in Utah.

GP: I track the video game industry on a daily basis. They have made some strides over the last few years in their enforcement levels as measured by the Federal Trade Commission in enforcing their ratings. I think it was up to [an] 80% success rate in the most recent FTC report, and that's been increasing every year. Is there a concern that if now they have to feel like they are on the hook for this [new law], they may just not participate, [they may not bother to] say that they don’t sell games to minors. Is there a concern about that?

MM: I don’t think so. I think that most all retailers, in fact most all of the large ones have entered into a pledge not to do that. I think it encourages them to enforce their own standards and encourages them to be a little bit vigilant and say, hey, let’s not do this. But obviously, if they decide that [promising not to sell to minors] is too onerous, and they decide that that’s not a claim that they want to make, then, there would be no penalty under this provision.

(hit the jump for the rest...)

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?

Yes. 

 

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.

Utah Rep. Mike Morley has officially introduced video game legislation drafted by disbarred Miami attorney Jack Thompson.

As GamePolitics previously reported, H.B. 353 would amend Utah's current Truth in Advertising statute. If passed, retailers who claim that they don't sell M-rated games to underage buyers could be held liable if they did. The measure would also apply to R-rated DVDs as well as tickets to R-rated movies.

The language of the amendment has changed slightly from that which GP reported on Sunday. It now reads:

[Deceptive trade practices occur when, in the course of a person's business, vocation, or occupation that person:]

 

(u) (i) advertises that the person will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation; and (ii) sells that good or service to a person under the age restriction or recommendation.

For his part, Thompson issued a press release this morning which says that the purpose of the bill is to "punish major American retailers who falsely claim they do not sell Mature-rated video games and R-rated movies and movie tickets to kids under 17."

While Thompson claims that H.B. 353 has no free speech implications, that remains to be seen; the bill clearly targets certain types of media content.

As GamePolitics readers may recall, Thompson also claimed that his 2006 Louisiana bill was constitutional (it wasn't) and that Grand Theft Auto: Vice City was a "device," not a form of speech, (he was wrong about that, too).

So, please excuse us while wait for a real constitutional expert to weigh in.

Hearings on the proposal may begin as early as next week.

GP: Thanks to Nathaniel Edwards of LegalArcade.com for the artwork.

Dr. Cheryl Olson, co-author of Grand Theft Childhood, dropped GamePolitics a line to say that she and her husband/writing partner Dr. Lawrence Kutner will appear in an upcoming Penn & Teller: Bullshit! episode which examines the video game violence controversy.

As we reported last September, disbarred Miami attorney Jack Thompson was also interviewed for the show.

A Penn & Teller producer indicated that the game violence episode would likely air in the summer, but could not provide a specific date.

Penn Jillette twittered briefly about the filming of the episode earlier this week:

We're taping "Video Game Violence" BS. A first-person shooter game where you get to be BS "Penn". My Father-in-law got to get shot.

Olson also mentioned to GP that a Korean language version of Grand Theft Childhood is being published.

Disbarred Miami attorney Jack Thompson and Gerard Jones (left), author of Killing Monsters: Why Children Need Fantasy, Super Heroes and Make-Believe Violence, will debate the video game violence topic in late March, according to Shenandoah.com.

The debate, which is free and open to the public, is scheduled for Bridgewater College (northwestern Virginia) on Thursday, April 2, at 7:30 p.m.

Thompson and Jones previously debated in 2007 at a college in Pennsylvania. That debate was marred by a student (and, unfortunately, GP reader) who behaved rather badly toward Thompson.

GP: Big thanks to: GamePolitics reader Maxamegalon2000 for the tip!

UPDATE: We've been notified that the date was changed to Thursday, April 2nd.

A proposed amendment to Utah's Truth in Advertising Law may have little impact on the sale of M-rated games to minors, according to its sponsor.

Rep. Mike Morley (R) discussed the measure, which was conceived by disbarred Miami attorney Jack Thompson, with Salt Lake Tribune reporter Glen Warchol:

Morley tells me his bill... takes a radically different approach than ill-fated past proposals... It would work like this: A store, Target for instance, could advertise that it takes precautions not to sell mature-content games to kids, presumably to attract business from concerned parents. But if one of its clerks did sell an inappropriate game to a kid—the parents could sue the store...

 

Of course, the stores can simply [decide to] not make any such advertising promises.

If this doesn't sound to you like a rigorous way to control video game sales, you're right. Morley acknowledged as much to me:

    This approach is constitutional. Will it be effective? Maybe not.

Morley assures me the Legislature has plenty of time to deal with pointless bills like this and still take care of the people's real business.

Morley made similar comments to Utah's Deseret News:

[Morley] acknowledged that his proposal was relatively limited in scope and would have little to no effect on some segments of the video game industry.

"If they're one of those places that thinks, 'Well, as long as they have a heartbeat and some money we'll sell to them,' then this won't have any impact on them," Morley said.

 

Morley said he hasn't been able to get a feel for the level of enthusiasm among House Republicans for yet another bill directed at the video game industry.

GP: Hardly a ringing endorsement from Rep. Morley for his own legislative proposal...

Despite a decade-long string of legal victories against video game legislation, the game industry appears headed for a fierce political battle in Utah.

As GamePolitics reported earlier this week, State Rep. Mike Morley (R) will soon introduce a new bill written by longtime game biz nemesis Jack Thompson. Having apparently abandoned past efforts to have violent games declared harmful to minors (an approach that he swore was constitutional), Thompson's new legislative angle would put retailers at risk of false advertising charges if they sell mature-themed games or films to minors.

While there is a tendency in the game community to automatically dismiss any legal theory proposed by the permanently disbarred Thompson, the reality is that Utah could prove to be a battleground state for the video game industry. A lobbyist who is familiar with media content issues explained to GP that Utah's ultra-conservative political landscape offers Thompson a window of opportunity:

This year the industry may face a tougher fight in Utah even with Attorney General Mark Shurtleff's help. The reason is that the conservative wing of the [Utah] Republican Party deposed the moderate Republican Senate President, John Valentine, and replaced him with the conservative Senate President Michael Waddoups. 

 

[For example,] one of Waddoups most recent victories was defeating the Governor's effort to modernize Utah's antiquated liquor laws. Waddoups defeated the bill because he opposed "kids being able to see adults pour drinks."  Well, if he thinks seeing a drink poured in a restaurant is going to corrupt a kid, what will he think about your average video game?

 

Moreover, [Jack Thompson's] new approach targeting false advertising could encourage and energize legislators to try yet again to pass a [video game] law that would survive judicial review.  

In reality, [Thompson's proposal] is unlikely to withstand judicial review, as it would chill protected speech. However, legislators may be willing to roll the dice one more time. It is not their money.

Utah Attorney General Mark Shurtleff (R), whose office is currently reviewing video game legislation drafted by disbarred Miami attorney Jack Thompson, received a campaign contribution from the video game industry in 2008, according to public records obtained by GamePolitics.

The Entertainment Software Association, which represents the interests of U.S. video game publishers, made a $3,000 donation to Shurtleff in May of 2008. The popular, moderate Republican would go on to win an unprecedented third term in November's election.

At the same time, the ESA also made lesser contributions to a pair of state senators, Ross Romero (D) and John Valentine (R).

For his part, Shurtleff has been no stranger to video game issues in recent years.

- In 2005 he called for a boycott on Eidos's cops-and-robbers shooter 25 to Life.

- In 2006 he appeared in a public service announcement advocating the ESRB rating system.

- In 2007 he advised the Utah Legislature to delay consideration of an earlier Jack Thompson-authored bill while a federal court considered the legality of a similar measure in Oklahoma. Afterward, Thompson called for Shurtleff's impeachment. The Oklahoma law was eventually ruled unconstitutional.

UPDATE: In the original version of this article, Sen. Ross Romero was mistakenly listed as a Republican. He is a Democrat and that correction has been made.

The Salt Lake Tribune has confirmed that a Republican state legislator will introduce a video game bill crafted by Jack Thompson.

Trib reporter Glen Warchol tracked the story down this afternoon at the State Capitol in Salt Lake City. As GamePolitics recently predicted, Gayle Ruzicka, a Thompson ally and head of the ultra-conservative Utah Eagle Forum, found a legislator to propose the disbarred attorney's bill.

Warchol writes:

Eagle Forum President Gayle Ruzicka is remote controlling Rep. Mike Morley [left] to introduce yet another bill to regulate those cop-killing video games...

Morley is picking up where other lawmakers have failed. (Yes, I checked and his pupils appear to be dilating properly...)  Florida-based wingnut crusader and disbarred lawyer Jack Thompson apparently has roughed out the bill for Gayle...

I talked to Attorney General Mark Shurtleff [who] says he has been told the bill will be completely different from earlier versions, but "They keep changing the language." He says the evidence that Thompson keeps quoting hasn't stood up in court. Looks like Thompson will have to call for Shurtleff's impeachment again.

GP: In 2007 Thompson demanded the impeachment of Utah Attorney General Mark Shurtleff after the A.G. suggested that a video game bill proposed by the anti-game activist was unconstitutional.

In an op-ed for today's Deseret News, disbarred Miami attorney Jack Thompson writes about the Utah video game legislation that he has been promising for several weeks.

Here's the bill in Utah: It doesn't define what content is "harmful to minors," so we avoid the phony First Amendment arguments Hollywood loves to make. The bill simply states: If you promise the public you don't sell adult-rated entertainment to kids, then you had better be telling the truth, because if a parent catches you selling this stuff to his or her kids, then you're guilty of fraud under the Truth in Advertising Law.

 

The Entertainment Software Association bragged this week that it spread $4.2 million around to "lobby" politicians at the federal level, with more spread around to state politicians...

Despite Thompson's assertion, we don't remember the tight-lipped ESA mentioning its lobbying expenditures at all, much less "bragging" about them. The $4.2 million lobbying figure which Thompson refers to was tracked down by Gamasutra via a public records search and subsequently detailed in a recent news report.

Since we've been unable to locate Thompson's measure on the website of the Utah legislature, GamePolitics asked Thompson to identify the bill and its sponsor. He declined, saying only:

I have a sponsor and a bill, and [the video game] industry is in trouble.

Layton Shumway, who pens a video game column for the Deseret News, suggests that HB14 might be the Thompson bill, but that seems unlikely. In a comment to his op-ed, Thompson offers what could be a carefully-worded hint on the future of the mysterious bill:

I look forward to returning to Utah, possibly this week, to testify for the passage of this bill. I met with state government officials last month in Salt Lake, and there is great enthusiasm for this approach...

Of course, returning to Utah "possibly this week" also means possibly not this week, or possiby not even during the current legislative session.

From Thompson's description, his bill seems aimed at movies as much as video games. Indeed, he cites poor R-rating enforcement by movie theaters but fails to mention the video game industry's significant, FTC-documented progress at stopping M-rated sales to minors.

We note also that Thompson is identified by the Deseret News as "a former practicing attorney," which does not seem to fully convey his permanently disbarred status to readers of the Utah newspaper. 

It appears that investigators in Portland, Oregon are not focusing on rampage shooter Erik Ayala's fondness for violent video games.

The Portland Mercury spoke with Detective Mark Slater of Portland P.D., who commented on reports that linked linked the 24-year-old Ayala to Left 4 Dead and Resistance: Fall of Man:

[Local newspaper] The Oregonian prompted controversy on Monday, January 26, when it reported that "one of the things that bought Ayala joy" was playing violent videogames. Slater said a copy of the videogame Grand Theft Auto III was found at Ayala's apartment, but said police were not pursuing a link between videogames and the shooting.

"There were a lot of videogames in the apartment," said Slater. "Of a wide variety of the kind you might find in any 24-year-old's apartment."

In regard to the video game angle, GamePolitics has learned that anti-game violence activist Jack Thompson unsuccessfully attempted to involve himself in the Ayala case. Thompson forwarded GP a copy of a January 26th e-mail in which the disbarred attorney complained to Portland Police Chief Rosie Sizer that detectives weren't acting on his theory that video games prompted the rampage:

Dear Chief Sizer:

I have information that would be useful to establish further the apparent causal link between the violent video game play of alleged killer Ayala and the recent incident at the teen club.

Some detective in the Bureau with whom I spoke has been compromised by the video game industry, and he was anticipating my call.

I think your Bureau and you put public safety ahead of the pro-video game bias and gaming activities of this detective.

Please have some responsible detective contact me on this, as these incidents tied to games are popping up all over the place.  Thanks.

As GamePolitics has documented over the years, Thompson characteristically makes contact with law enforcement personnel in the wake of shooting rampages to suggest that violent video games played a role.

Those contacts between Thompson and law enforcement officials have at times become contentious.

In 2007, for example, Thompson sued the Omaha Police Department for information concerning a troubled 18-year-old who opened fire at a local mall. Last year, Thompson threatened to sue the Public Safety Department of Northern Illinois University following a campus shooting spree committed by a 27-year-old man with a history of mental health problems. In both cases, the disbarred attorney sought evidence of video game play on the part of the shooters.

GP: Thanks to GP reader Cabel Sasser for the link to the Mercury story!

A live blog of Jack Thompson's Saturday morning keynote address to the ultra-conservative Utah Eagle Forum has been published at Mormon Bloggers.

Judging by the post, Thompson delivered his standard anti-video game rap. The disbarred attorney apparently also laid out his latest strategy to legislate games:

The impact of aggressive, violent, and pornographic videos simply can’t be denied. Jack cited case after case in which people like a young Devin, immersed in things like Theft in the City, went home and shot his parents, saying to the police,  something to this effect: “Everybody has to die, just like in video games.”

 

The man who killed on Trolley Square, said Jack Thompson, was apparently training on Theft in the City or something similar.  One part of that violent video illustrates an individual going to a high point in a mall and shooting in random people he doesn’t know.  This training ground has made victims in Columbine, in Miami, in  Paduka [sic], and needs to stop here.

 

Jack Thompson– attorney, crusader in fighting the entertainment media’s marketing of violent materials to minors, and  author of Out of Harm’s Way–is supportive of an upcoming a bill, which if drafted properly and put in the hopper here in Utah will stop the sale of these games to minors.

 

Currently, the Fraud and Deceptive Trade Pact Act says that if you sell a product and misrepresent what it does or is, it is simply fraudulent.  Walmart, Target, Best Buy assert in corporate sites, statements, and press releases that they will not sell a mature-rated violent to a minor.  Age verification software, though available through Ideology and other programs, are dismissed by these companies.  This is something we can enforce.

 

If you’d like to know more, check with Eagle Forum.  If you are informed and are willing to make a call, please let your legislators know that this bill should be passed.

GP: Couple of points here... The blogger characterizes Thompson as an attorney, but as GamePolitics readers know, he was disbarred for life by the Florida Supreme Court in October. As we pointed out last week, the agenda for the Utah Eagle Forum event also lists him as an attorney. At this time it is unknown whether the audience for Thompson's keynote address was told of his permanently disbarred status. If so, the blogger makes no reference to it.

Clearly unfamiliar with video game issues, the live blogger also gets a few of the details wrong. But that's not unexpected as Thompson was apparently going on about several cases in which he blames video games for violent crimes. The "Devin" mentioned by the blogger, for example, would be Devin Moore, who killed two police officers and a dispatcher in Alabama, not his parents.

Most amusingly, "Theft in the City" would be Grand Theft Auto, of course.

UPDATE: In relation to Thompson's scheme to legislate games in Utah, the question now becomes whether the disbarred attorney has any state legislators on board. We would suspect that Gayle Ruzicka, the politically influential president of the Utah Eagle Forum and an ally of Thompson's, will be able to persuade someone in the legislature to introduce Thompson's bill.

Could the sponsor end up being one of three Utah legislators who also spoke at the UEF convention? Those would be the controversial Sen. Chris Buttars (R) as well as Reps. Carl Wimmer (R) and Christopher Herrod (R).

UPDATE 2: In its coverage of the UEF convention, the Deseret News makes no mention of the proposed video game legislation, but quotes Thompson's verbal shot at President-elect Barack Obama:

Outside of social issues, conventioneers and speakers alike expressed concern about the upcoming term of President-elect Barack Obama.

 

"On Jan. 20 we are entering what I believe will be a time of peril for this country," said speaker Jack Thompson. "And that is Barack Obama."

UPDATE 3: Thompson e-mailed GP to assert that he made his disbarment known to the UEF convention audience:

I told everyone there I was disbarred, and said in my first speech that I was a 'recovering attorney.'

GamePolitics received a press release from disbarred Miami attorney Jack Thompson this morning in which he claimed to be "working with" state officials in Utah to pass video game legislation.

Regarding the supposed legislation, Thompson writes:

Thompson will be in Utah this coming week to work with Utah state officials to pass a new state law that will stop, dead in its tracks, the continuing marketing and sale of “Mature” video games to kids. Utah’s new approach to this problem will be constitutional and it will become a model for other states to follow.

A bit of digging shows that Thompson is scheduled to be in Utah next Saturday, where he will be the keynote speaker at the annual convention of the ultra-conservative Utah Eagle Forum. Indeed, the group appears to be a significant part of Thompson's ongoing connection to Utah. A convention agenda mentions that Thompson:

...will be talking about the research proving exposure to graphic violence leads to violent children and this year's legislation to prevent it.

We also note that, despite his disbarment, Thompson remains listed as an attorney in the program.

Via e-mail, we asked Thompson if he was talking to any specific legislators about a game bill and whether he could elaborate on what he meant by "working with." So far, we have received no response.

Still, given the local clout wielded in Utah by the UEF and its president, Gayle Ruzicka, we wouldn't doubt that some type of Thompson-authored legislation will surface there. Indeed, four state legislators are also scheduled to serve as speakers at the UEF convention.

To be sure, Thompson has quite a history with Utah:

In 2006, then-State Rep. David Hogue (R) tried - and failed - to pass a bill equating violent video games with pornography. Language used by Hogue during legislative hearings mimicked Thompson's frequent comments on game violence. Gayle Ruzicka spoke out in favor of the bill.

In 2007, Rep. Scott Wyatt's Thompson-authored bill failed as well, but not before Thompson called for the impeachment of Utah's popular Republican Attorney General Mark Shurtleff. Shurtleff's offense? He had the temerity to offer a legal opinion that Thompson's bill was unconstitutional.

In 2008, only weeks after a referee recommended to the Florida Supreme Court that Thompson be disbarred for life, the controversial anti-game violence campaigner was honored with a Freedom Award at the annual America's Freedom Festival in Provo. Given the circumstances, we found his selection a curious choice.

Jack Thompson is hoping that the United States Supreme Court will consider his appeal of the Florida Supreme Court ruling that disbarred him for life.

In mid-December the anti-game attorney requested from the U.S. Superme Court an extension of a Christmas Eve deadline in which to file what is known as a petition for a writ of certiorari.

Supreme Court Justice Clarence Thomas has granted Thompson's request, meaning that the embattled anti-game violence advocate will have until February 18th to petition for cert with the Supreme Court.

While the extension is a positive development for Thompson, he nonetheless faces an uphill struggle. According to its website, the Supreme Court receives petitions to consider about 10,000 cases per year. Only about 100 of those will be granted a hearing.

Document Dump:

1. Thompson's request for extension
2. SCOTUS letter granting request

Is God behind the recent plunge of Take-Two Interactive's stock price?

When it comes to business, should one's religious beliefs even matter?

For the controversial, disbarred attorney Jack Thompson, the answer to these questions would seem to be yes.

On Friday, GamePolitics reported on Thompson's claim that he planned to lead a stockholder revolt aimed at ousting Take-Two chairman Strauss Zelnick.

While Thompson says that he wants to hold Zelnick accountable for T2's tumbling share price, his comments must be weighed in light of the disbarred attorney's oft-expressed distaste for Take-Two and its chairman.

As to the would-be shareholder revolt, it brought to mind a recent e-mail exchange between GP and  Thompson which may shed some light on the anti-game activist's apparent belief that divine retribution of the Christian deity is behind Take-Two's depressed stock price. Those e-mails follow:

--------------------------

From: Jack Thompson
Sent: Thursday, December 18, 2008 6:44 AM
To: Dennis McCauley
Subject: Spin this, Strauss...

GOD STRIKES TAKE-TWO DOWN

Take-Two dropped $2.35 to $9.72 in extended trading after the announcement and fell as low as $9.60. The shares... have declined 35 percent this year. The results contrast with comments Zelnick made in an interview on Nov. 3, when he said sales of the company’s video games hadn’t been hurt by the recession...

-------------------------

From: Dennis McCauley
To: 'Jack Thompson'
Sent: Thursday, December 18, 2008 6:52 AM
Subject: RE: Spin this, Strauss...

So, if T2’s business reverse was God’s vengeance, does that mean that God struck you down too when you were disbarred?...

--------------------------

From: Jack Thompson
Sent: Thursday, December 18, 2008 9:10 AM
To: Dennis McCauley
Subject: Re: Spin this, Strauss...

...If you had any understanding of the Bible and of God you would understand that persecution comes Christians' way, and we are blessed by it.  There is no blessing for Zelnick, who is not a Christian, when he gets what he deserves...

---------------------------

From: Dennis McCauley
To: 'Jack Thompson'
Sent: Monday, December 29, 2008 6:54 AM
Subject: in relation to your Take-Two shareholder revolt...

...Are you saying that problems for Christians are blessings, while problems for non-Christians are vengeance from the Almighty? Also, how do you know what Zelnick’s religion is?

---------------------------

From: Jack Thompson
Sent: Monday, December 29, 2008 7:11 AM
To: Dennis McCauley
Subject: Re: in relation to your Take-Two shareholder revolt...

Here's another passage of Scripture that you don't understand and never read:  "All things work to the good for those who love the Lord and are called according to His purpose."  That group would include me and not Zelnick.  Zelnick is not a believer in the Gospel.  How do I know?  Because the man who got us together [secretly, in Manhattan in 2007] is a Christian, with a massive ministry in Hollywood and the rest of the entertainment industry.  It was because of the spiritual aspect of this struggle that he got the two of us together, and Zelnick failed the test. 

If you knew anything about the Gospel, you would understand further that Paul, whose writings are considered part of the canon, tells Christians, not unbelievers, that we are to "count it all joy" when trials and tribulations come our way. 

I have been persecuted for my faith, not because I did anything wrong, by those committed to evil.  Glad to clear it up for you.  And as it now stands, Mr. Zelnick's problems at Take-Two are minuscule [sic] compared to the eternity of punishment that is coming his way unless he repents and accepts Christ as I did 32 years ago this month.  You might do well to read the Gospel of John yourself.  Come to think of it, I'll write Strauss about all this and send you a copy...

---------------------------

Thompson did not respond to GP's request to name the man who supposedly brokered the 2007 meeting with Zelnick. The letter to Zelnick which Thompson mentions can be viewed here.

GP: Serious consideration was given as to whether to publish this story as I realize that some will  find Thompson's comments about non-Christians offensive. Ultimately, in deciding to publish, the opportunity to provide an insight into Thompson's mindset outweighed the other issues.

Disbarred attorney Jack Thompson says that he plans to lead a shareholder revolt against Take-Two Interactive chairman Strauss Zelnick.

Of course, disbarred attorney Jack Thompson says a lot of things...

In this case, Thompson claims in an e-mail that he just scooped up some T2 shares at their current, distressed price:

TTWO is today trading at about $7 per share.  Zelnick blew it.  Thompson today bought a bunch of Take-Two stock at the $7 figure.

The reason Thompson has done this is to lead the effort by Take-Two shareholders to dump Zelnick.  It is long overdue, and there are already rumblings that Zelnick’s tenure at Take-Two has been a disaster, as anyone still holding stock that could have been sold at $26 and is now worth $7 and falling, can attest.

In the letter, Thompson refers to the Z-man as an "incompetent, reckless goofball," which is pretty funny, coming from someone with Thompson's track record.