As GamePolitics reported yesterday, Utah Gov. Jon Huntsman vetoed HB 353, the Jack Thompson video game/movie bill that would have targeted retailers who sold M-rated games or R-rated movies to minors.

The sponsor of the bill, Rep. Mike Morley (R-UT), told the Salt Lake Tribune:

I think it's simply a result of an e-mail campaign from a lot of gamers that misrepresent the bill and [the governor's staff] has not studied it closely enough to recognize that is not the case. I think it was crafted very carefully to avoid those issues and I think they're mistaken.

However, a source close to Utah state politics told GamePolitics yesterday that Gov. Huntsman was the subject of intense lobbying from retailers. The Salt Lake Tribune reports that the Entertainment Software Association mounted a major lobbying campaign as well.

Morley complained to the Deseret News that the Guv didn't give him a courtesy call before vetoing the bill:

I would have thought that just common courtesy would have been to call me.

Legislators are now deciding whether to pursue an override of the veto.

Jack Thompson e-mailed GamePolitics a few minutes ago to say that Utah Gov. Jon Huntsman (R) has vetoed HB 353, the video game/movie bill passed overwhelmingly by the Utah House and Senate.

We've also confirmed this with another source in Utah.

According to Thompson, backers of the bill plan to seek an override of the Guv's veto.

We're hearing (not from Thompson) that the word on the street is that retailers lobbied the Guv energetically.

GP: Color me surprised. I did not think that Huntsman would buck the legislature on this one.

UPDATE: Saintless has Gov. Huntsman's explanation of his veto:

After careful consideration and study, I have decided to veto HB 353...

While protecting children from inappropriate materials is a laudable goal, the language of this bill is so broad that it likely will be struck down by the courts as an unconstitutional violation of the Dormant Commerce Clause and/or the First Amendment.

The industries most affected by this new requirement indicated that rather than risk being held liable under this bill, they would likely choose to no longer issue age appropriate labels on goods and services.

 

Therefore, the unintended consequence of the bill would be that parents and children would have no labels to guide them in determining the age appropriateness of the goods or service, thereby increasing children’s potential exposure to something they or their parents would have otherwise determined was inappropriate under the voluntary labeling system now being recognized and embraced by a significant majority of vendors.

Utah Gov. Jon Huntsman is now considering whether to sign into law HB 353, the Jack Thompson-conceived video game and movie bill. The Guv has until approximately April 1st to make that decision. In the meantime, the National Coalition Against Censorship, among others, has urged Huntsman to veto the measure.

Along that line, GamePolitics readers may recall that last month, when HB 353 was introduced into the Utah House by Rep. Mike Morley (R), we asked Prof. Clay Calvert, Co-Director of the Pennsylvania Center for the First Amendment at Penn State, to offer his view of the original text of the bill.

Since that time, HB 353 has been substantially amended along the way to passage by the Utah legislature. That being the case, earlier this week we asked Prof. Calvert to revisit the final version of the bill. If you'd like to refer to the subsections mentioned by Prof. Calvert, you'll find them by hitting the jump.

Prof. Calvert's analysis follows:

The [safe harbor] defense provision of [HB 353] (g)(i)(A) not only is vague (what constitutes a documented training program? What is required by Utah to count as such a program?  With whom must it be documented?  Utah?), but it actually is quite burdensome because it only works if a store affirmatively adopts such a training program.  

The defense provision of (g)(i)(B) is helpful to stores because it prevents liability in the case where a minor engages in fraud to purchase a game by using a fake ID. That's a positive step in this revised legislation (which is NOT to say the legislation itself is positive).

One major concern is turning what the bill specifically identifies as a "recommendation" into a mandatory command. The recommendation is made by a private party (presumably the ESRB) and the government now is employing it with the force of law.

 

The National Coalition Against Censorship makes a great point when it states that this bill, "by incorporating the private voluntary ratings system... constitutes an unlawful delegation of legislative authority to a non-governmental entity."

In particular, there is significant legal precedent for this point in the context of violent video game statutes.  In July 2006, a federal district court in Minnesota in the case of Entertainment Software Association v. Hatch... issued an injunction prohibiting that state from enforcing a law that fined those minors under 17 years of age for renting or purchasing video games rated AO or M by the ESRB...

 

A second major concern is that section (u)(ii) simply applies if one "provides that good or service to a buyer subject to the age restriction or recommendation." The law could be improved if it applied to one who "provides that good or service to buyer knowing the age restriction or recommendation on the good or service AND knowing that the buyer is under the age of the restriction or recommendation." 

He leg-wrestled Stephen Colbert and even played a Rock Band duet with the popular Comedy Central host, but freshman Utah Congressman Jason Chaffetz (R) offered GamePolitics no comment on his state's controversial video game/movie legislation.

The measure is now on Gov. Jon Huntsman's desk, awaiting signature.

GamePolitics tracked Rep. Chaffetz down on Twitter, where he is jasoninthehouse. To be fair, since he is a federal legislator and HB 353 is a state bill, we didn't really expect he'd be fully briefed - and he wasn't. But the media-savvy - and tech-savvy - Chaffetz is a good sport, as our private Twitter exchange demonstrates:

GamePolitics: Hey, Rep. Chaffetz, any thoughts on HB 353, video game/movie bill now on Gov. Huntsman's desk for signature?

jasoninthehouse: Just not familiar with it... State bill... I have been focused on the federal ones

GamePolitics: Fair enough, but what if I told you that among its provisions was a ban on leg-wrestling with fake news show hosts?

jasoninthehouse: That is funny. I should abide by this and not do any more leg wrestling....I am obviously not very good at it.

GP: For the record, I must point out that the text of my direct messages to Rep. Chaffetz disappeared into the Twitter ether, so I've paraphrased them from memory. Rep. Chaffetz's responses are verbatim. Beyond that, it's nice to see an approachable Congressman on Twitter - especially one with a sense of humor.

Joining those who have called upon Utah Gov. Jon Huntsman to veto HB 353 is the National Coalition Against Censorship.

A post on the NCAC website says that the Jack Thompson-conceived bill "takes a voluntary effort by manufacturers to provide consumers with information about their products and turns it into a mechanism to deprive minors of their First Amendment rights."

More from the NCAC:

This bill would hold retailers responsible for selling minors material labeled for mature audiences.  Sellers of books, movies, video games, and music could be penalized up to $2000 for “violating” age guidelines created voluntarily for informational purposes only.

This bill takes a voluntary effort by manufacturers to provide consumers with information about their products and turns it into a mechanism to deprive minors of their First Amendment rights.  By incorporating the private voluntary ratings system, it also constitutes an unlawful delegation of legislative authority to a non-governmental entity...

 

The bill may result in consumers getting less information.  Stores not willing to risk lawsuit or fines for violating age restrictions may simply decide not to display ratings information.  The industry as a whole could even consider dispensing with its voluntary rating system if the result is to make retailers vulnerable to lawsuits and judgments.

We urge Governor Huntsman to veto this problematic bill.

UPDATE: The NCAC has written a letter to Gov. Huntsman urging a veto of HB 353.

A Utah mom has come out swinging against HB 353. The Jack Thompson-conceived bill, overwhelmingly passed by the Utah House and Senate, is currently just a stroke of Gov. Jon Huntsman's (R) pen away from becoming law.

Misty Fowler (left) is a software developer, mother of two and activist Democrat.

She also pens the politically-oriented Saintless blog.

Fowler writes:

I didn’t feel like [Utah Senate sponsor Margaret] Dayton [R] and [Utah House sponsor Mike] Morley [R] came out to share details of the bill, but to introduce it with the idea that this isn’t a punitive bill, so that maybe we would all have warm fuzzies about how good this was for our children. Because really, think of the children, will you?...

As a parent, I feel very strongly that it’s my responsibility to my children to educate them about what they can play, and why...

The ESRB is accomplishing what it should... The Utah Legislature seems to be approving of ESRB by trying to enforce it...

I don’t want this law passed. Not because I don’t want to protect children. But, because I think it’s a bogus attempt to regulate the ESRB, and won’t do anything for our children. It will cost local businesses money, and is likely to remove some great tools I have in making decisions about video games as a parent.

Ask Governor Huntsman to veto it.

Fowler also questions the bill, given Jack Thompson's involvement.

UPDATED

Having been passed overwhelmingly by the Utah House and Senate, HB 353, the Jack Thompson-conceived video game/movie bill, is now with Gov. Jon Huntsman (R).

The Guv can decide to sign the measure into law or veto it. He may also do nothing, in which case the bill will automatically become law. Given that Utah conservatives have portrayed the bill as protective of children and Huntsman is rumored to have 2012 presidential aspirations, it's highly unlikely that he will exercise his veto power.

With HB 353 landing on Huntsman's desk, game publishers' lobbying group the Entertainment Software Association has upped the pressure ante a bit. The ESA-owned Video Game Voters Network is running an e-mail campaign which urges Huntsman to veto HB 353.

ESA VP of Communications and Industry Affairs Rich Taylor also criticized the bill in an interview with Salt Lake City public radio station KCPW:

Essentially, what it does it has the unintended consequence of creating liability exposure which could force many retailers to either abandon their voluntary policies to enforce video game rating systems, or maybe perhaps choose not to sell video games at all.

Here you have broadly drawn legislative language that seeks to address a fairly small instance of retailers failing to enforce their policies as promoted. The vast, overwhelming majority of retailers are complying, but now they fall within this swinging sight of harm that this legislation introduces.

For his part, Jack Thompson has challenged ESA CEO Mike Gallagher to a debate on the bill, but that's an unlikely occurrence.

Assuming that Huntsman signs the bill into law, it will take effect on January 1, 2010. If and when Huntsman signs, the video game industry will decide whether to challenge the measure in federal court.

Also unclear at this point is where the motion picture industry stands on HB 353. If the ESA and EMA (game retailers) sue, will the MPAA join in?

UPDATE: An industry executive who has been actively involved in the fight against HB 353 assures GamePolitics that the MPAA and the National Association of Theatre Owners are fully engaged in opposition to the bill.
 

Rep. Mike Morley (R) of the Utah House of Representatieves is apparently getting a lot of e-mail from gamers.

They're not happy.

Morley, of course is the sponsor of HB 353, the Jack Thompson-conceived video game/movie rating enforcment bill which passed overwhelmingly in both the Utah House and Senate.

The Deseret News reports that "various groups" are e-mailing Morley. The legislator told the newspaper:

I was told that there might be some crazies out there... I actually talked to some of these people who sent me crazy e-mails (from Facebook), and everyone one I talked to, after I explained the bill and asked them to read it, didn't think that it would do [what various Web sites said it would]...

 

This is not the end of the world for video-game sales," Morley says. "We are not creating a litigious situation. No one should be concerned.

HB 353 is now before Utah Gov. Jon Huntsman (R), who has 20 days (from March 12th) to sign the bill into law or veto it.

GP: It seems likely that the Guv will sign HB 353 into law. After that, the next move will be up to the ESA (publishers) and EMA (retailers). Will they pursue a federal court solution? That's unclear at this point because HB 353 is a different kind of animal than previous legislative efforts aimed at video games.

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).

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.

Following a lively debate, the Utah State Senate has passed HB 353 by a 25-4 margin.

The bill, originally drafted by disbarred Miami attorney Jack Thompson, was amended in the Utah Senate prior to this evening's vote.

Because the bill was amended by the Senate, it now goes back to the Utah House which must approve the changes. That step must be completed by midnight when the current legislative session ends.

Sen. Margaret Dayton (R), the measure's sponsor in the Senate, is seen at left speaking about HB 353 during the just-completed debate.

During the debate, Sen. Scott McCoy (D) called the bill a square peg in a round hole. While saying that he personally found Grand Theft Auto disgusting, McCoy also feared that the measure is an inappropriate use of Utah's Truth in Advertising statute and that it will be subject to challenge on constitutional grounds.

Speaking in support of HB 353 was Sen. Chris Buttars (R). The controversial Republican cited the well-known case of Devin Moore, a GTA player who killed two police officers and a dispatcher in 2003. Before being removed from the case by an Alabama judge, Jack Thompson was involved in a wrongful death lawsuit against Rockstar, Sony, Wal-Mart and GameStop based on Moore's rampage. 

Assuming that the House approves the Senate amendment, which seems likely, the measure will proceed to Gov. Jon Huntsman. The Governor may sign it into law or veto the measure.

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.

Terming it a "give away to trial lawyers," a conservative media watchdog group has called upon Utah Gov. Jon Huntsman (R, at left) to oppose HB 353, which is currently under consideration by the State Senate.

The measure would make retailers who advertise that they abide by age restrictions for video games and movies potentially liable under Utah's truth in advertising law. As reported on GamePolitics, HB 353 passed the State House by a 70-2 margin last week.

Derek Hunter, executive director of the Media Freedom Project, wrote to Huntsman yesterday:

In a state famous for hosting the Sundance Film Festival, amending the [law] to include [video game and movie] transactions would have a chilling effect on the film industry, as well as other retail businesses, and further damage an already ailing economy.

 

Specifically, the Media Freedom Project strongly opposes opening up businesses to lawsuits for underage video game or movie sales. This give away to trial lawyers won’t make kids safer, but will build in dramatically higher costs for small businesses who are already working on strategies to keep kids safe...

 

No crisis exists. Parents are not clamoring for government intervention into the lives of their children...

Should the Utah State Senate pass HB 353 (and they have until Thursday midnight to do so), it would be up to Gov. Huntsman to sign the measure into law or veto it.

Sourcewatch reports that the Media Freedom Project is an offshoot of Grover Norquist's Americans for Tax Reform.

GP: Especially fascinating about the Media Freedom Project's involvement is that they are a conservative group lobbying against a bill that was proposed by a conservative legislator, Rep. Mike Morley, in the most conservative of states, Utah. Moreover, the bill enjoys the backing of the ultra-conservative Utah Eagle Forum and was originally drafted by another conservative, disbarred Miami attorney Jack Thompson.

DOCUMENT DUMP: Grab a copy of the MFP's letter to Gov. Huntsman here.

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.

While the Utah State Senate mulls HB 353, a bill which would add age rating offenses to the state's existing Truth in Advertising law, ESRB President Patricia Vance has penned an open letter to "Utah's parents and leaders."

Vance called HB 353 a "grave mistake" and warned that it could undo years of effort by the ESRB and video game retailers to keep inappropriate content from underage players:

So why is this bill likely to put an end to those very efforts it seeks to support? On its face such an amendment makes good sense; after all, if a retailer says they’re going to do something, they should do it, right?

 

While the intent of this legislation would be to hold retailers accountable for compliance with their stated policies – presumably in that negligible 6% of instances where they fail to comply – the unfortunate reality is that it would introduce a liability that will likely force many retailers to seriously consider abandoning their voluntary policies and ratings education programs, undoing years of progress made on behalf of parents and their children.

The bill passed the Utah House, albeit in a somewhat diluted fashion, last week by a 70-2 margin.

For the full text of Vance's letter, hit the jump.

Earlier today, GamePolitics spoke with Dave Davis of the Utah Retail Merchants Association.

Davis argued against the original, Jack Thompson-authored version of HB353 during a committee hearing last week. But amendments subsequently added by sponsor Rep. Mike Morley (left) persuaded Davis to drop his group's opposition:

We went from adamantly opposed to the bill to a position of neutrality. We still weren't supporting the bill but we had dropped our opposition based on the fact that [Rep. Morley] had made several favorable amendments for our retailers...

 

The bill was rolling forward and in its first form, it was completely unacceptable. Rep. Morley and the legislature could have very well - and probably would have - passed it in its original form. What we were able to do was secure some safe harbor exemptions for retailers.

Although Davis didn't suggest it, GP asked if the practice of age-gating M-rated game content on websites might offer a measure of protection from HB353's penalties for online retailers:

[Under the amended bill] if a buyer intentionally misrepresents their age, then the retailer wouldn't be subject to penalty. Keep in mind that this statute only applies to retailers who are advertising that they don't sell M-rated games or R-rated movies to underage people.

 

You would have to have a specific [advertisement] that you do not sell the age-restricted product to underage people... Just discussing the [existence of the] rating system would not bring [retailers] under the auspices of "advertising..."

 

If [a retailer] had an incident with one of their clerks, we've now provided a safe harbor where, if they've provided some training for that clerk on how to handle those age-restricted products, they would not be liable...

Davis expects the measure to pass its next hurdle, the Utah State Senate.

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.

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.

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.

"Advertises that a good or service will not be sold to a certain age group when it is."

That single phrase is the essence of the much-talked about Jack Thompson video game legislation currently under consideration in Utah.

Thompson has forwarded GamePolitics a draft of the measure, dated January 27th. As previously reported, Rep. Mike Morley (R) will sponsor the bill in the legislature (although, based on recent local news reports, Morley doesn't sound especially enthusiastic about the prospect).

Thompson's proposal seeks to amend Utah's existing Truth in Advertising law. If it is successful, game retailers who advertise that they don't sell M-rated games to underage buyers would be at risk if they did.

Although Thompson often complains that online retailers don't properly age-gate video game buyers, the current language of the proposal does not address Internet sales.

Document Dump: Grab a copy of the draft legislation here.

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...

Stephen Colbert and freshman Congressman Jason Chaffetz (R-UT) play the Rock Band version of Colbert's own Charlene (I'm Right Behind You).

Chaffetz, who has previously leg-wrestled Colbert, earns a disappointing 24% score for the song's guitar track, while Colbert racks up a perfect score on vocals.

Still, credit to Chaffetz where it's due. How many Congress types would be willing to try Rock Band on national TV?

Via: Layton Shumway, games guru of the Deseret News

UPDATE: Glen Warchol of the Salt Lake Tribune finds Chaffetz's antics "excruciatingly mortifying:"

Is there a[n] information medium that freshman Utah Rep. Jason Chaffetz won't exploit?

Besides Twittering and participating in a CNN reality show on life as a rookie congressman, Chaffetz allowed faux political pundit Stephen Colbert to humiliate him in leg wrestling, Rock Band and even subject him to a facial. Warning: Watch at your own risk. It is so excruciatingly mortifying, you may want to crawl under a chair for C[h]affetz.

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.