If We Ban Violent Video Games, Why Not Violent Theme Park Attractions?

by on July 12, 2010 · 8 comments

I’m hoping to get some input from readers as I look to finish up an amicus brief for the forthcoming Schwarzenegger v. EMA video game case. (Respondent briefs are due in mid-Sept and the State of California just filed its brief with the Court today). You will recall that the Supreme Court accepted the case for review in April, meaning it will be the first major case regarding video game speech rights heard by our nation’s highest court. It raises questions about the First Amendment status of games and what rights minors have to buy or play “violent” video games.  One section I hope to include in the brief I’m working on deals with how other forms of media content are increasingly intertwined with video game content. In it, I explain how video games are less of a discreet category of visual entertainment than they once were. I’d welcome ideas for other examples to use relative to the ones you see below.

I begin by discussing games that were inspired by major motion pictures, such as both the recent Star Wars and Lord of the Rings movie trilogies, for example.  I also note that many games were inspired by notable books, such as the LotR games being inspired by Tolkien, and The Godfather video games that were inspired by Mario Puzo’s novel of the same name. I also make mention of The Terminator movies starring California Governor Arnold Schwarzenegger, which inspired a wide variety of video games, many of which featured his likeness.

More importantly, I highlight how many video games are now inspiring movies, music, books, and comics, including: Prince of Persia, Max Payne, Resident Evil, Tomb Raider, Doom, Final Fantasy, Halo, and Gears of War. The characters and storylines in the books, comics, and movies based on these games often closely track the video games that inspired them.  Increasingly, therefore, games are developed along parallel tracks with these other forms of content. Thus, to regulate games under the standard California proposes in this case raises the question of whether those other types of media should be regulated in a similar fashion.  Should every iteration of the original game title be regulated under the standard California has suggested if those books, comics, or movies contain violent themes?

If so, it raises profound First Amendment issues—especially for novels and comics. Moreover, to not regulate those other forms of media while regulating game content raises its own set of First Amendment issues. “[T]his type of facial underinclusiveness undermines the claim that the regulation materially advances its alleged interests,” argued the U.S. District Court for the Middle District of Louisiana in ESA v. Foti (2006). After all, what good does it do to merely regulate “a tiny fraction of the media violence to which modern American children are exposed” if all other forms of expression remain available? (See, AAMA v. Kendrick, 2001)

So, again, I’d welcome more (or better) examples to include in this short section of my brief to help me drive this point home to the Court.

I might also make mention of another type of entertainment that could be impacted by this decision and which no one else seems to be thinking about: theme park attractions. Ironically, just a few months ago, my wife and I took the kids on a vacation to Universal Studios in Orlando, Florida.  One of the attractions that my kids — ages 8 and 5 — enjoyed most was “Terminator 2: 3D.” It was their second favorite after the spectacular SpiderMan ride.

But here’s the thing about that Terminator 2 attraction at Universal Studios: it was a surprisingly intense and seriously violent experience. The show features cinematic action combined with real-life actors who run throughout the arena firing shotguns at cybernetic robots that come out of the walls or floors.  During some segments of the show, water sprays the audience, smoke fills the chamber, and the seats and floors vibrate violently as battles take place on stage and on-screen. The actor hosting the show is also choked to death by a cyborg! [see video below at 2:20 mark.]

Now, here’s what’s most interesting to me about the “Terminator 2: 3D” attraction:

  1. Children are admitted without restriction to the “Terminator 2: 3D” attraction even though the depictions of “violence” they witness and physically experience are far more intense than any regular movie or video game.
  2. Arnold Schwarzenegger filmed segments for the cinematic portions of the “Terminator 2: 3D” attraction.  Of course, this is the same man who would later sign the California video game bill into law and have his state squander millions of taxpayer dollars in court defending it.  All on the ground that we need to keep kids away from “violent” media.  But apparently the kiddies weren’t on his mind when he helped created the “Terminator 2: 3D” attraction!

Again, don’t get me wrong here: My kids loved the T2:3D experience, and Mom and I couldn’t be happier we took them to see it. (We loved it too!)  And, at least so far, my kids have not become murderous thugs or social degenerates from experiencing this intense show, as some in the “monkey see, monkey do” crowd imply will occur if kids see violently-themed entertainment.

Regardless, I think this begs a serious question:  If Gov. Schwarzenegger — or any other lawmaker for that matter — would regulate “violent” video games on the grounds that the experience is too intense and damaging for kids psychologically, then why not regulate theme park attractions on similar grounds?  The “Revenge of the Mummy” ride at Universal Studios (also based on a movie) serves as another example. At one point you are sent to Hell and placed in an imaginary tomb while flames shoot out the walls all around you so that you feel like you are going to be cremated alive.  You can literally feel the heat from the flames on your face.  You cannot possibly convince me that there is any video game experience as frightening as that.  But all the kids went wild!  My daughter made us ride it with her three times!  (Our 5-yr old boy couldn’t go on that one because of a height restriction, but there was no age-based or other type of restriction / warning on the ride.)

Anyway, I welcome more input here about other rides or attractions that are “violent” and that could be impacted by an adverse, anti-free speech ruling by the Supreme Court in the Schwarzenegger v. EMA case.  (I’ve also thought about discussing how many kids are in the audience at boxing, MMA, wrestling matches and other violent sports).

In my opinion, it is up to parents — not the government — to determine what games, movies, music, books, magazines, and theme park attractions that kids get to see, hear, and experience.  I can appreciate that some parents have heightened sensitives about some of these things, but they have the abilityand the responsibility — to make appropriate media determinations for their kids.  We shouldn’t expect The Terminator Arnold Schwarzenegger to be our national nanny.

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Great analogy, Adam. But of course the California law at issue in this case wouldn't actually ban violent games; just their sale to minors. The law is basically a parental consent requirement, since it does not apply “if the violent video game is sold or rented to a minor by the minor's parent, grandparent, aunt, uncle, or legal guardian” and does not prohibit minors from playing a violent video game if given to them. (Indeed, because the statute prohibits only “sale” or “rental” to a minor, it also seemingly wouldn't apply if a developer gave away a game for free—say, because they intended to support the game through in-game advertising.)

    So the direct analogy would be a law that required parental consent before kids could enter violence-themed rides in theme parks. As a practical matter, most kids probably go to such parks with their parents—but many kids go with some other adult, and older kids (especially those old enough to drive or who have friends who can) might go on their own, as I did in high school. So would theme parks have to verify parental consent every time a minor wants to go on a scary ride? If so, how would this possibly work? It's like COPPA for theme parks (but at least the ride operators could tell enough about a kid's likely age that they wouldn't have to age-verify ALL guests before allowing them on a scary ride).

    Interestingly, King's Dominion (where I hung out as a teenager) doesn't have any minimum age limits in its Park Rules and Universal Studios only has minimum height requirements (for safety reasons).

    So your basic point is quite sound: Allowing the California law to survive the First Amendment would seem to allow states to restrict access to violent theme park rides, and thus totally transform theme parks into a series of “Papers, please!” checkpoints—it not actually ban such rides. That point should cause the Court to think twice about the ramifications of siding with California.

  • Todd

    Adam, would you please stop using inflammatory rhetoric that has no basis in the facts? The law would in no way ban ANY game. As your own employee, Berin, points out, the law would not ban video games, just the sale to minors. Further, as Berin points out as well, parents can buy the game and allow their kids to play it. You constantly talk about the use of parental control tools, well, this is a parental control tool. In fact, the law would key off of the industry's own ratings (which you tout so highly) system which states whether the game is violent!

    As for the theme park analogy, again as Berin points out, most kids are there with their parents, hence, parental permission. I admit, there is a problem with what to do about the teenagers that come alone. But as you like to point out with the percent of households that don't have kids, the majority's interests are tantamount, right?

  • http://techliberation.com/author/berinszoka/ Berin Szoka

    Todd, you seem to have missed the larger point Adam and I were making: If California can ban the sale of violent video games to minors, it could apply the same principle to theme parks. Yes, most kids at amusement parks are there with their parents, but certainly not all—and, indeed, just because their parents brought them to the park doesn't mean their parents go with them to every ride. So are you saying you would support a law that required parental consent before kids could get on a ride considered too violent?

    Now, as for your claim that the California law was about “parental control,” you might have a stronger case if we were talking about, say, restricting the sale of hard core pornographic magazines to minors in stores (which laws have been upheld). In that case, parents lack effective control over their child's consumption of the medium and the supposed “harm” that results from it. (Pretty hard to stop teenage boys from… and stashing dirty magazines under mattresses.)

    But the video game context is radically different (setting aside the difference between violence and obscenity): Kids can't play the video games in the store! They have to run the game on an expensive piece of hardware, generally a game console attached to a TV, but perhaps also a computer or a mobile phone. And Adam's core message is that there are a variety of tools and methods parents can use to control this media consumption that give them a great degree of effective control over their children's consumption of media, whether or not the kid can buy the game in the first place. As the Supreme Court has said, ““technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us.” United States v. Playboy Entertainment Group, 529 U.S. 803, 818 (2000). The court continued:

    Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests. This is not to say that the absence of an effective blocking mechanism will in all cases suffice to support a law restricting the speech in question; but if a less restrictive means is available for the Government to achieve its goals, the Government must use it.

  • http://www.techliberation.com Adam Thierer

    Mr. Haiken… I will endeavor to reply to your comment momentarily. However, the management of the TLF has decided to institute the new Common Sense Media parental verification comment screening system and we will first require you to prove that you are old enough to post a comment here. After all, think of the horrors if you were proven to be a 16 year old and allowed to freely read or comment on this site.

  • Ken

    I have a question. What is the real reason behind the government wanting to ban video games? It seems to me that in one way or another this issue has come back to the american people since movies and TV have been an integral part of society. When comic books in the late 60's early 70's started writing about the drug culture, The government cencored the books to make sure nothing drug related made it into the comic books. Even though the Comic in question was preaching against using drugs. It seems to me that there is a hidden agenda here somewhere. I was just wondering if you had any insight on this.

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  • afro ninja dude

    he said ill be back and now he is but hes trying to ban violent video games? when in fact he has stared in violent movies whats wrong with this picture

  • Legal secretary

    Perhaps finding a similar case against the violence in the news on television would help matters as well. And maybe also quoting the statistics about the drop in juvenile violence since the advent of video games (children being either too occupied playing those games and/or using those games as an outlet instead of doing violence themselves).

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