Monday, June 27, 2011

We Won

The Supreme Court of the United States in a 7 to 2 decision - has struck-down California's violent video-games ban, and in doing so has ruled that restricting the sale of violent games to minors by force of law is unconstitutional. This is, without question, the biggest and most important American legal decision in video game history.

The most important part of the decision, in terms of future lawmaking, is in the wording of the Majority Opinion written by Justice Antonin Scalia (becoming, for the first time in his entire tenure, "cool") which specifically singles out the two most common arguments for game-censorship - that gaming's interactive nature and the un-planned-for nature technological evolution makes a "special case" for restriction - as being insufficient.

Incidentally, the decision defied the typical "liberal/conservative" split in the Court - a plurality of Justices voted to kill the ban, but Conservative Clarence Thomas and Liberal Steven Breyer were the dissenting votes.


GreyArea said...


imsmart said...

"Interactive nature?" Like because games can make people really angry?

Samuel said...

First Time Scalia is cool? What about his good work on Texas v Johnson?

Now if you excuse me, I have some american flags to burn.

Chris Byrne said...

Yeah seriously. In general Scalia is pretty good on individual rights (Roberts and Alito somewhat less so. Thomas is big on property rights, not so good on personal liberty), and frankly most of the "liberals" are not.

They are very much supportive of authoritarian police measures for example, while Scalia in general detests them.

Mischlings said...

Well, we've finally managed to get the first large victory that video games need. I'm hoping that, sometime within my lifetime, it'll be more than just a few intellectuals talking about video games as a legitimate art form (I attended a small conference about it at University of Michigan because I knew one of the people discussing a paper he wrote). Also, even though there are two opinions that say "Well, maybe a different law could be constitutional", there's still a majority that says that games deserve the same rights unconditionally.

Next up, the academics (where we've made significant progress with, at the least, graduate students) and the court of public opinion.

Ciaran Maxey said...

Can someone explain this to me. I dont understand what the problem is with not selling violent games to minors. Suely minors shouldnt be playing mature games anyway. In England, you cant buy an 18 film or game unless you are 18 and it works out fine and makes sence. Im against the idea that games cause violence but that still doesnt mean minors should play mature games.

Or have i completally misunderstood the point?

Lord Fluffy said...

@Ciaran Maxey

I think the point of this was to ban violent games period. because you still cannot buy the violent games as a minor. but the fact is they're still playing them regardless. i think what this ban was trying to do was to eliminate the entirety of the problem of minors playing these games and becoming "violent" by removing all forms of this "trigger"

hplayer97 said...

@Lord Fluffy

That's not quite correct. On paper, the law is only supposed to ban the sale of violent video games to minors. They could still be made, but no one under 18 would have been able to buy them. Basically it would have turned the ESRB rating system from something stores are advised to follow into something they have to adhere to every time some would try to buy a game. if implemented though, it would probably result in something similar to what you described. It probably would have been like what happened to comics during the Silver Age, with mainstream titles being gutted of anything "harmful" to children while a sort of underground movement would allow for more mature titles to be published.

Good to see the Supreme Court show some sense and strike this law down. Had it been upheld, we probably would have kissed the chances of video games making it as a legitimate art form goodbye.

Mischlings said...

@Ciaran -- Censorship and its enforcement in America has to be by someone other than the government. This law tried to make the government enforce censorship of video games, which is what the First Amendment is supposed to prevent.

Mads said...

Just like Mischlings said.

You still cannot buy violent videogames as a minor, since esrb ratings are mandatory to appear on store shelves of any of the shop chains that sell video games, and then, they'll only carry anything with a mature rating or less. No 18+ games at all.

So it doesn't really "change" anything from the consumers perspective, but videogame stores can now sell videogames at their pleasure. A mom and pop store could theoretically sell gta4 to 10 yearsolds, if they wanted to...without fear of fines. The idea is that if they do this, a boycott will be organized, and the market will sort them out of the picture.

Anyway, the law is important for two reasons: It establishes that games are speech, by legal precedent, which is a huge boon. It's become kosher, so to speak.

And it establishes that anti game legislation will always be illegal. This is perhaps the bigger one. No politician can ever again run on being against games, unless they want to run on breaking the constitution and costing their state or country millions in ultimately pointless court procedings. If there's no votes to be gotten on slamming videogames, then it cannot be used as a political wedge issue, which means people won't be polarized by such use. This will create a much friendlier videogame environment.

Well theoretically. Some politicians are actually running on wanting to overturn roe v. wade, which is another supreme court decisions, basically making those politicians platoforms unconstitutional. So...yeah, there's that. It still makes it a markedly less useful wedge issue.

Laserkid said...

This is awesome, and I am very pleased as Bob said this didn't even hit down on typically liberal or conservative lines in the supreme court.

Because I do see some people who are not from this country don't get what the big deal is here, there's a bit of American culture to explain. Specifically in regards to retailer culture. Once the government steps in and threatens fines if something is sold to a minor the vast majority of retailers will not carry those items out of fear of a lawsuit.

This is the very same reason AO games are not sold even in "Video Game Stores".

To sell that to a minor would get a store in serious legal trouble because of the pornographic content being sold to a minor. Why spend tons of money training your employees and praying to the god of your choice they listen when you can far easier just not carry it?

So, if some government board could decide such and such game is illegal to sell to minors, stores by default will not carry them because of the legal risk of some idiot clerk not paying attention is too damn high. This will make these games a LOT less likely to be made creating a De Facto censorship of videogames, even if not De Jure. Yes I used fancy words. Ooooo. :P

That is why this was so imporant that it was defeated, if it was upheld there would be a huge regression in the types of games made. Now while I contend most "mature" games are anything but - if gaming development is not allowed to go through its stupid teenage years it will NEVER reach true intellectual status.

There's always the risk that can happen anyway, of course, but thats the risk you take when you try to grow.

In short, while this law would have rid the world of some really retarded games (for the sake of not starting a flame war I'll just let you imagine them), it would also stifle not just free speech (which is bad enough) but the possibility of games to reach any artistic height ever.

Arturo said...

This calls for me getting drunk tonight

John M Osborne said...

@Ciarin, the argument that was made FOR the law basically said that Video Games are a different type of speech and therefore excepted from the 1st amendment. In other words, violent video games should be considered as dangerous as alcohol or pornography, laws can and should be made to fine or abolish the sale.

That's the problem. It's saying that R-rated movies are okay, because there's no law saying a movie theatre cannot sell to a minor, but video games are worse somehow.

How do you make such a legal differentiation?

Also, the UK has a different standard for freedom of speech, as do most European countries.

imsmart said...

I read a pretty plausible theory that the law was motivated by four things. First, that the video game industry is very rich. Second, that much of the video game industry is in California. Third, that California is very broke. Fourth, that the punishment consists entirely of fines which are not especially large, and go straight into California's coffers.

a said...

Here's my thoughts on the landmark vote.

Laserkid said...
This comment has been removed by the author.
Anonymous said...

Dude, talk about Operation Rainfall. I'd love to hear a Nintendo fanboy justify NoA's clusterfuck there.

Anonymous said...

As for the decision, what people are confused about hear is that in the United States, it's illegal to ban minors from viewing content so as long as such content is not considered obscene. The MPAA ratings for motion pictures along with its enforcement are often mistaken to be government mandated, when in fact it's something the major film studios impose on theatres and video stores through the threat of blacklisting. In some ways, corporate compulsion is actually WORSE than government compulsion in that governments that impose unpopular restrictions are accountable to the people through the ballot box, through direct pressure on elected official, and through various extra-electoral activities whereas corporate interests do not have to answer to such pressures.

Phobos said...

Disappointed Jon Stewart has a problem with the decision. Obviously his researchers had time to find a violent game, but not enough time to work out that the game is not freely available for sale to kids as the industry won;t allow it. The case was saying that it was not the job of the government to decided this. Very disappointing.

Jay said...

The next battle should be interesting. Namely, it's both the PIPA and "10 Strikes" bills that are currently getting gamers miffed.

It would be interesting to see the overthinker do a show on those.

ptwin77 said...

Actually, I think it's the biggest video game based decision in supreme court history, as opposed to being the other way around. This is big for games, but there has to be bigger cases in 30 years (Row v. Wade, etc.)