By: Jennifer Huddleston and Juan Martin Londoño

This year the E3 conference streamed live over Twitch, YouTube, and other online platforms—a reality that highlights the growing importance of platforms and user-generated content to the gaming industry. From streaming content on Twitch, to sharing mods on Steam Workshop, or funding small developing studios on services such as Patreon or Kickstarter, user-generated content has proven vital for the gaming ecosystem. While these platforms have allowed space for creative interaction—which we saw on the livestreams chats during E3—the legal framework that allows all of this interaction is under threat, and changes to a critical internet law could spell Game Over for user-created gaming elements.

This law, “Section 230,” is foundational to all user-generated content on the internet. Section 230 protects platforms from lawsuits over both the content they host as well as their moderation decisions, giving them the freedom to curate and create the kind of environment that best fits its customers. This policy is under attack, however, from policymakers on both sides of the aisle. Some Democrats argue platforms are not moderating enough content, thus allowing hate speech and voter suppression to thrive, while some Republicans believe platforms are moderating too much, which promotes “cancel culture” and the limitation of free speech.

User-generated content and the platforms that host it have contributed significantly to the growth of the gaming industry since the early days of the internet. This growth has only accelerated during the pandemic, as in 2020 the gaming industry grew 20 percent to a whopping $180 billion market. But changing Section 230 could seriously disrupt user-generated engagement with gaming, making content moderation costlier and riskier for some of gamers’ favorite platforms.

An increased legal liability could mean a platform such as Twitch would face higher compliance costs due to the need to increase its moderation and legal teams. This cost would likely be transferred to creators through a revenue reduction or to viewers through rate hikes—resulting in less content and fewer users. Further, restrictions on moderation could lead to undesirable content and ultimately fewer users and advertisers—leading to more profit losses and less content. Ultimately, platforms might not be able to sustain themselves, leading to fewer platforms and opportunities for fans to engage. Platforms such as Twitch already face these problems, but for now they can determine the best solutions without heavy-handed government intervention or costly legal battles.

The impact of changing Section 230 goes beyond video content and could impact some increasingly popular fan creations that are further invigorating the industry. For example, the modding community, composed of gaming fans that modify existing games to create new experiences, often uses various online platforms to share their mods with other players. Modding has kept certain games relevant even years after their release, or propelled games’ popularity by introducing new ways to play them. Such is the case of Grand Theft Auto V’s roleplaying mod, or Arma III’s PlayerUnknown Battlegrounds mod, the inspiration of games such as Fortnite and Call of Duty: Warzone.

These modified games are often hosted on platforms such as Steam Workshop, Github, or on independently run community websites. These platforms are often free of charge, either as a complimentary service of a bigger product – in the case of Steam – or are supported purely by ad revenue and donations. Like streaming platforms and message boards, without Section 230 these services would face increased compliance costs or be unable to remove excessively violent, sexually explicit, or hateful content. The result could be that these new twists on old favorites never make it to consumers, as platforms are unable to host these creations and remain viable as businesses.

Changing or removing Section 230 protections would upend the complex and dynamic gaming environment on display during E3. It took decades of growth for gaming to establish itself as the new king of entertainment and it has defended itself from a variety of technopanics throughout the years. Pulling the plug on Section 230 could mean “Game Over” for the user-generated content that brings gamers so much fun.

I was pleased to see the American Psychological Association’s new statement slowly reversing course on misguided past statements about video games and acts of real-world violence. As Kyle Orland reports in Ars Technica, the APA has clarified its earlier statement on this relationship between watching video game depictions of violence and actual youth behavior. The APA’s old statement said that evidence “confirms [the] link between playing violent video games and aggression.”  But the APA has come around and now says that, “there is insufficient scientific evidence to support a causal link between violent video games and violent behavior.” More specifically, the APA says: 

The following resolution should not be misinterpreted or misused by attributing violence, such as mass shootings, to violent video game use. Violence is a complex social problem that likely stems from many factors that warrant attention from researchers, policy makers and the public. Attributing violence to violent video gaming is not scientifically sound and draws attention away from other factors.

This is a welcome change of course because the APA’s earlier statements were being used by politicians and media activists who favored censorship of video games. Hopefully that will no longer happen.

“Monkey see, monkey do” theories of media exposure leading to acts of real-world violence have long been among the most outrageously flawed theories in the fields of psychology and media studies.  All the evidence points the opposite way, as I documented a decade ago in a variety of studies. (For a summary, see my 2010 essay, “More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime.”)

In fact, there might even be something to the “cathartic effect hypothesis,” or the idea first articulated by Aristotle (“katharsis”) that watching dramatic portrayals of violence could lead to “the proper purgation of these emotions.” (See my 2010 essay on this, “Video Games, Media Violence & the Cathartic Effect Hypothesis.”)

Of course, this doesn’t mean that endless exposure to video game or TV and movie violence is a good thing. Prudence and good parenting are still essential. Some limits are smart. But the idea that a kid playing or watching violent act will automatically become violent themselves was always nonsense. It’s time we put that theory to rest. Thanks to the new APA statement, we are one step closer.

P.S. I recently penned an essay about my long love affair with video games that you might find entertaining: “Confessions of a ‘Vidiot’: 50 Years of Video Games & Moral Panics”

This essay originally appeared on The Bridge under the title “Confessions of a Vidiot” on July 16, 2019.

I have a confession: I’m 50 years old and still completely in love with video games.

I feel silly saying that, even though I really shouldn’t. Video games are now fully intertwined with the fabric of modern life and, by this point, there have been a couple of generations of adults who, like me, have played them actively over the past few decades. Somehow, despite the seemingly endless moral panics about video games, we came out alright. But that likely will not stop some critics from finding new things to panic over.

As a child of the 1970s, I straddled the divide between the old and new worlds of gaming. I was (and remain) obsessed with board and card games, which my family played avidly. But then Atari’s home version of “Pong” landed in 1976. The console had rudimentary graphics and controls, and just one game to play, but it was a revelation. After my uncle bought Pong for my cousins, our families and neighbors would gather round his tiny 20-inch television to watch two electronic paddles and a little dot move around the screen.

Every kid in the world immediately began lobbying their parents for a Pong game of their own, but then a year later something even more magical hit the market: Atari’s 2600 gaming platform. It was followed by Mattel’s “Intellivision” and Coleco’s “ColecoVision.” The platform wars had begun, and home video games had gone mainstream.

My grandmother, who lived with us at the time, started calling my brother and me “vidiots,” which was short for “video game idiots.” My grandmother raised me and was an absolute treasure to my existence, but when it came to video games (as well as rock music), the generational tensions between us were omnipresent. She was constantly haranguing my brother and me about how we were never going to amount to much in life if we didn’t get away from those damn video games!

I used to ask her why she never gave us as much grief about playing board or card games. She thought those were mostly fine. There was just something about the electronic or more interactive nature of video games that set her and the older generation off.

And, of course, there was the violence. There is no doubt that video games contained violent themes and images that were new to the gaming experience. In the analog gaming era, violent action was left mostly to the imagination. With electronic games, it was right there for us to see in all its (very bloody) glory.

As depictions of violence in video games became more intense, parental anxiety boiled over into political activism. By the early 1990s, complaints by parent groups and politicians escalated and congressional hearings commenced. This was the Nintendo and Sega era, when games like “Mortal Kombat” and “Night Trap” were capturing attention for their violent themes.

By this time, I had moved to Washington, DC and taken a job with a think tank. I was a young researcher covering media and telecommunications policy issues, so I had both a personal and professional interest in covering video game hearings. What ensued was a media spectacle in which an endless parade of politicians and self-anointed “parent advocates” expressed their concerns about various games and the supposed lost generation of kids playing them.

The first major congressional hearing on video game violence that I attended in 1993 included then-Sen. Joe Lieberman and other lawmakers speaking with disgust and furrowed brows as they watched clips from those games. But most of us twenty-somethings in the hearing room were rolling our eyes through the entire spectacle. I distinctly remember hearing a Capitol Hill staffer that I was sitting next to whisper, “This is the greatest ad for getting a Sega Genesis ever!” Following the hearing, several friends and I went to my house and played Mortal Kombat together just for kicks.

As the decade went on and gamers began enjoying a third generation of consoles that included Playstation and XBox, the moral panic surrounding violent video gamesrapidly intensified. This was the era of “Doom,” “Resident Evil” and then “Grand Theft Auto.” The whole world went mad.

Critics were writing books with titles like Stop Teaching Our Kids to Kill and referring to video games as “murder simulators.” Every TV news outlet was running some sort of hair-raising report about how America’s youth were doomed for a life of depravity due to video games. By 2006, Sen. Lieberman and then-Sen. Hillary Clinton were floating the “Family Entertainment Protection Act” to create a federal enforcement regime for video games ratings and sales. Court battles ensued over the constitutionality of restrictions on video game sales.

During this push for video game censorship, I wrote many essays, papers, and even contributed to court filings in which I poured over the evidence—or rather the lack thereof—for what we might think of as the “monkey see-monkey do” theory of human behavior. Put simply, there has never been any conclusive scientific evidence correlating video game exposure and real-world acts of violence. If this theory held any water, at some point it should have shown up in crime statistics either here or abroad. But it hasn’t.

In fact, over the past two decades, the US population has grown from 270 million in 1998 to 325 million today, and video games have grown in popularity over that same period. At the same time, according to FBI data, overall violent crime has fallen by almost 19 percent, and for adolescents ages 12 to 20, every class of crime plummeted over the same period.

To be sure, video games—violent or otherwise—can give rise to some problems worth worrying about. Addiction is a real concern, and not just for juveniles. Again, I’m an old man, but I still play far too many games on my phone when I could be doing other things. That’s not technically addiction, but it sure feels like it sometimes. When our kids, or even some adults, go overboard with game time, they need strategies to find a better balance. That has always been a legitimate issue deserving attention.

But the people and politicians who engaged in panics and proselytizing about the supposed evils of video games went much too far. What they failed to realize—as almost all cultural critics have mistakenly done throughout history—is that humans are more sensible and resilient than they assume. We can muddle through and find a reasonable balance.

Indeed, a great many first and second generation gamers are now raising kids and actively gaming with them. My teenage son and I play multiple games together and are part of many different leagues and teams. On our phones, we play “Boom Beach” and other games together, often with groups of other father and son gamers. At home, we love to play “Star Wars: Battlefront” and we are absolutely infatuated with the alien bug-killing “Earth Defense Force” games.

A few years back, my son and I got so good at the game “Toy Soldiers: Cold War” that we were briefly ranked in the top 15 globally. We also play a lot of board games together. I now include him in monthly poker nights at my house, where he has become quite the card shark, regularly depriving many of my adult friends of their money.

My strategy with my son and gaming activity has been simple: stay involved, be open-minded, and set reasonable limits. Oh sure, there are games he plays that I find silly and worthless. But I try to talk to him about all of them and get a better understanding of what they are about. And I encourage him—not always successfully—to get off the couch and go outside to get plenty of outdoor playtime in, too.

While heavy-handed regulatory efforts have been beaten back, we can expect moral panics to continue as video games become even more interactive and immersive. We aging gamers should be willing to hear out concerns about those new gaming themes and capabilities and consider reasonable responses.

If we have learned anything from the first half century of video game history, it is that over-reaction is never the right response. Whether you are a parent or a politician, try to be patient and willing to talk to kids in an open and understanding fashion about things you might not appreciate at first.

Now please excuse me while my son and I get back to killing some alien bugs and saving the Earth once more!

Additional Reading :

• The Social Science Debate over Violent Video Games Will Never End
• Video Games, Media Violence & the Cathartic Effect Hypothesis
• More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime
• Video Games, Free Speech & the Lunacy of “Ecogenerism”
• Video Games and “Moral Panic”
• Video Games, Violence, & Social “Science”: Another Day, Another Fight

The Mercatus Center at George Mason University has just released a new paper on,”Permissionless Innovation and Immersive Technology: Public Policy for Virtual and Augmented Reality,” which I co-authored with Jonathan Camp. This 53-page paper can be downloaded via the Mercatus website, SSRN or Research Gate.

Here is the abstract for the paper:

Immersive technologies such as augmented reality, virtual reality, and mixed reality are finally taking off. As these technologies become more widespread, concerns will likely develop about their disruptive social and economic effects. This paper addresses such policy concerns and contrasts two different visions for governing immersive tech going forward. The paper makes the case for permissionless innovation, or the general freedom to innovate without prior constraint, as the optimal policy default to maximize the benefits associated with immersive technologies. The alternative vision — the so-called precautionary principle — would be an inappropriate policy default because it would greatly limit the potential for beneficial applications and uses of these new technologies to emerge rapidly. Public policy for immersive technology should not be based on hypothetical worst-case scenarios. Rather, policymakers should wait to see which concerns or harms emerge and then devise ex post solutions as needed.

To better explain why precautionary controls on these emerging technologies would be such a mistake, Camp and I provide an inventory of the many VR, AR, and mixed reality applications that are already on the market–or soon could be–and which could provide society with profound benefits. A few examples include: 

• Education and museums. Immersing users in virtual environments allows Google’s Expedition Pioneer Program to provide 360-degree video tours of famous landmarks and ruins, and museums are already using AR technology to provide interactive content.
• Worker training and systems monitoring. VR industrial simulators such as ForgeFX are being used to train workers to master a variety of complex tasks, while AR systems can be leveraged to help farmers with crop management from afar.
• Healthcare. CT scans and MRIs are being converted into 3-D models to perform surgery that was once thought impossible, and the world’s first VR medical training facility opened in London in November of 2016.
• Engineering. Virtual modeling technology is being combined with VR to allow touring of unbuilt vehicles and buildings, lowering the costs of construction and design.
• Military. The military has used VR for combat simulations, medic training, flight simulators, vehicle simulators, and even the treatment of PTSD.

And that just scratches the surface of some of the many exciting applications out there. The virtual sky is the limit with immersive tech — so long, that is, as we don’t derail these life-enriching technologies with misguided, fear-based public policy restrictions. Please read the paper for more details.

The outrage over the FCC’s attempt to write new open Internet rules has caught many by surprise, and probably Chairman Wheeler as well. The rumored possibility of the FCC authorizing broadband “fast lanes” draws most complaints and animus. Gus Hurwitz points out that the FCC’s actions this week have nothing to do with fast lanes and Larry Downes reminds us that this week’s rules don’t authorize anything. There’s a tremendous amount of misinformation because few understand how administrative law works. Yet many net neutrality proponents fear the worst from the proposed rules because Wheeler takes the consensus position that broadband provision is a two-sided market and prioritized traffic could be pro-consumer.

Fast lanes have been permitted by the FCC for years and they can benefit consumers. Some broadband services–like video and voice over Internet protocol (VoIP)–need to be transmitted faster or with better quality than static webpages, email, and file syncs. Don’t take my word for it. The 2010 Open Internet NPRM, which led to the recently struck-down rules, stated,

As rapid innovation in Internet-related services continues, we recognize that there are and will continue to be Internet-Protocol-based offerings (including voice and subscription video services, and certain business services provided to enterprise customers), often provided over the same networks used for broadband Internet access service, that have not been classified by the Commission. We use the term “managed” or “specialized” services to describe these types of offerings. The existence of these services may provide consumer benefits, including greater competition among voice and subscription video providers, and may lead to increased deployment of broadband networks.

I have no special knowledge about what ISPs will or won’t do. I wouldn’t predict in the short term the widespread development of prioritized traffic under even minimal regulation. I think the carriers haven’t looked too closely at additional services because net neutrality regulations have precariously hung over them for a decade. But some of net neutrality proponents’ talking points (like insinuating or predicting ISPs will block political speech they disagree with) are not based in reality.

We run a serious risk of derailing research and development into broadband services if the FCC is cowed by uninformed and extreme net neutrality views. As Adam eloquently said, “Living in constant fear of hypothetical worst-case scenarios — and premising public policy upon them — means that best-case scenarios will never come about.” Many net neutrality proponents would like to smear all priority traffic as unjust and exploitative. This is unfortunate and a bit ironic because one of the most transformative communications developments, cable VoIP, is a prioritized IP service.

There are other IP services that are only economically feasible if jitter, latency, and slow speed are minimized. Prioritized traffic takes several forms, but it could enhance these services:

VoIP. This prioritized service has actually been around for several years and has completely revolutionized the phone industry. Something unthinkable for decades–facilities-based local telephone service–became commonplace in the last few years and undermined much of the careful industrial planning in the 1996 Telecom Act. If you subscribe to voice service from your cable provider, you are benefiting from fast lane treatment. Your “phone” service is carried over your broadband cable, segregated from your television and Internet streams. Smaller ISPs could conceivably make their phone service more attractive by pairing up with a Skype- or Vonage-type voice provider, and there are other possibilities that make local phone service more competitive.

Cloud-hosted virtual desktops. This is not a new idea, but it’s possible to have most or all of your computing done in a secure cloud, not on your PC, via a prioritized data stream. With a virtual desktop, your laptop or desktop PC functions mainly as a dumb portal. No more annoying software updates. Fewer security risks. IT and security departments everywhere would rejoice. Google Chromebooks are a stripped-down version of this but truly functional virtual desktops would be valued by corporations, reporters, or government agencies that don’t want sensitive data saved on a bunch of laptops in their organization that they can’t constantly monitor. Virtual desktops could also transform the device market, putting the focus on a great cloud and (priority) broadband service and less on the power and speed of the device. Unfortunately, at present, virtual desktops are not in widespread use because even small lag frustrates users.

TV. The future of TV is IP-based and the distinction between “TV” and “the Internet” is increasingly blurring, with Netflix leading the way. In a fast lane future, you could imagine ISPs launching pared-down TV bundles–say, Netflix, HBO Go, and some sports channels–over a broadband connection. Most ISPs wouldn’t do it, but an over-the-top package might interest smaller ISPs who find acquiring TV content and bundling their own cable packages time-consuming and expensive.

Gaming. Computer gamers hate jitter and latency. (My experience with a roommate who had unprintable outbursts when Diablo III or World of Warcraft lagged is not uncommon.) Game lag means you die quite frequently because of your data connection and this depresses your interest in a game. There might be gaming companies out there who would like to partner with ISPs and other network operators to ensure smooth gameplay. Priority gaming services could also lead the way to more realistic, beautiful, and graphics-intensive games.

Teleconferencing, telemedicine, teleteaching, etc. Any real-time, video-based service could reach critical mass of subscribers and become economical with priority treatment. Any lag absolutely kills consumer interest in these video-based applications. By favoring applications like telemedicine, providing remote services could become attractive to enough people for ISPS to offer stand-alone broadband products.

This is just a sampling of the possible consumer benefits of pay-for-priority IP services we possibly sacrifice in the name of strict neutrality enforcement. There are other services we can’t even conceive of yet that will never develop. Generally, net neutrality proponents don’t admit these possible benefits and are trying to poison the well against all priority deals, including many of these services.

Most troubling, net neutrality turns the regulatory process on its head. Rather than identify a market failure and then take steps to correct the failure, the FCC may prevent commercial agreements that would be unobjectionable in nearly any other industry. The FCC has many experts who are familiar with the possible benefits of broadband fast lanes, which is why the FCC has consistently blessed priority treatment in some circumstances.

Unfortunately, the orchestrated reaction in recent weeks might leave us with onerous rules, delaying or making impossible new broadband services. Hopefully, in the ensuing months, reason wins out and FCC staff are persuaded by competitive analysis and possible innovations, not t-shirt slogans.

Yes, we pretty much have. That’s the inescapable conclusion following the U.S. Supreme Court’s historic First Amendment decision in Brown v. EMA back in June, which struck down a California law governing the sale of “violent video games” to minors.  By a 7-2 margin, the court held that video games have First Amendment protections on par with books, film, music and other forms of entertainment.

The folks over at ALEC asked me to explore what happens next and what steps state and local lawmakers can take in a post-Brown world if they wish to address concerns about video game content. My essay appears in the Nov/Dec Inside ALEC newsletter. You can read the entire thing here or via the Scribd embed I have placed down below the fold.

I argue that, going forward, this ruling will force state and local governments to change their approach to regulating all modern media content. Education and awareness-building efforts will be the more fruitful alternative since censorship has now been largely foreclosed.

Game Over for Video Game Censorship – Adam Thierer INSIDE ALEC [November 2011]

NPR science correspondent Shankar Vedantam had a great spot on NPR’s Morning Edition today about the disputes among social scientists over the impact of violent video games on kids. [“It’s A Duel: How Do Violent Video Games Affect Kids?”] You won’t be surprised to hear I wholeheartedly agree with Texas A&M psychologist Chris Ferguson, who noted in the spot:

Ferguson says it’s easy to think senseless video game violence can lead to senseless violence in the real world. But he says that’s mixing up two separate things.  “Many of the games do have morally objectionable material and I think that is where a lot of the debate on this issue went off the rails,” he said. “We kind of mistook our moral concerns about some of these video games, which are very valid — I find many of the games to be morally objectionable — and then assumed that what is morally objectionable is harmful.”

I’ve written about Ferguson’s work and these issues more generally many times over through the years here at the TLF. Here are some of the most relevant essays:

• Video Games, Media Violence & the Cathartic Effect Hypothesis
• More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime
• Video Games, Free Speech & the Lunacy of “Ecogenerism”
• Video Games and “Moral Panic”
• Video Games, Violence, & Social “Science”: Another Day, Another Fight
• Do video games create cop killers?

In these essays, I’ve tried to make a couple of key points about the social science literature on “media effects” theory:

(1) Lab studies by psychology professors and students are not representative of real-world behavior/results. Indeed, lab experiments are little more than artificial constructions of reality and of only limited value in gauging the impact of violently-themed media on actual human behavior.

(2) Real-world data trends likely offer us a better indication of the impact of media on human behavior over the long-haul. And all those trends show encouraging signs of improvement even as video game consumption among youth and adults increases.

(3) Correlation does not necessarily equal causation. Of course, whether we are talking about those artificial lab experiments or the real-world data sets, we must always keep this first principle of statistical analysis in mind.

(4) Finally, it’s worth reconsidering whether more weight should be given to the “cathartic effect hypothesis” in these debates. 

A bit more on this final point since I feel quite passionately about it…

The battle over media effect theory goes all the way back to the great Greek philosophers Plato and Aristotle. While Plato thought the media of his day (poetry, plays & music) had a deleterious impact on culture and humanity, Aristotle took a very different view. Indeed, most historians believe it was Aristotle who first used the term katharsis when discussing the importance of Greek tragedies, which often contained violent overtones and action. He suggested that these tragedies helped the audience, “through pity and fear effecting the proper purgation of these emotions.” In Part IV of his Poetics, Aristotle spoke highly of tragedies that used provocative or titillating storytelling to its fullest effect:

Tragedy is an imitation not only of a complete action, but of events inspiring fear or pity. Such an effect is best produced when the events come on us by surprise; and the effect is heightened when, at the same time, they follow as cause and effect. The tragic wonder will then be greater than if they happened of themselves or by accident; for even coincidences are most striking when they have an air of design. We may instance the statue of Mitys at Argos, which fell upon his murderer while he was a spectator at a festival, and killed him. Such events seem not to be due to mere chance. Plots, therefore, constructed on these principles are necessarily the best.

And for me, that remains the best explanation for how humans process dramatic depictions of violence and tragedy. We humans are unique among all mammals in our ability to adapt to changes in our environment and to process new and different forms of content and culture. We process. We learn. We assimilate. We adapt. Thus, we can enjoy the “tragic wonder” of watching a violent Greek drama or playing a violent video game without running for the kitchen to find a knife to plunge into somebody’s back. We can separate fantasy from reality and we do so every day of our lives.

Yet, many social scientists today, echoing Plato, continue to search for proof that the alternative is true and that depictions of violence on the stage or screen will have a direct and quite deleterious impact on human behavior. They subscribe to the “monkey see-monkey do” theory of media effects. Again, I think that’s utterly bogus and flatly contradicted by real-world facts. After all, if there was anything to their theories, shouldn’t it have shown up sometime, somewhere in real-world data trends by now?

Still, don’t expect this debate to ever end.  Just wait till virtual reality technologies go mainstream!  Oh boy, now that will have the “monkey see-monkey do” crowd whipped into a lather.  I look forward to the debate (and to playing those VR games with my kids!)

Yesterday’s 7-2 decision in Brown v. EMA [summaries here from me + Berin Szoka] was one of those historic First Amendment rulings that tends to bring out passions in people. You either loved it or hated it. But it’s sad to see some critics on the losing end of the case declaring that only greed could have possibly motivated the Court’s decision.

For example, California Senator Leland Yee, the author of the law that the Supreme Court struck down yesterday, obviously wasn’t happy about the outcome of the case. Neither was James Steyer, CEO of the advocacy group Common Sense Media, who has been a vociferous advocate of the California law and measures like it. What they had to say in response to the decision, however, was outlandish and juvenile. In essence, they both claimed that the Supreme Court only struck down the law to make video game developers and retailers happy.

“Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children,” Leland Yee said in a post on his website yesterday. “As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.” Jim Steyer reached a similar conclusion: “Today’s decision is a disappointing one for parents, educators, and all who care about kids,” he said. “Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected, but we will continue to fight for the best interests of kids and families.”

Mr. Yee and Mr. Steyer seem to be under the impression that the Court and supporters of its ruling in Brown cannot possibly care about children and that something sinister motivates our passion about the victory. Apparently we’re all just apparently in it to make video game industry fat cats and retailing giants happy! That’s a truly insulting position for Mr. Yee and Mr. Steyer to adopt. Perhaps it is just because they are sore about the outcome in the case that are adopting such rhetorical tactics. Regardless, I think they do themselves, their constituencies, and the public a great injustice by suggesting that only greed could possibly be motivating the outcome in this case.

Why is it so hard for Mr. Yee and Mr. Steyer to believe that many of us — like the majority writing for the Court in Brown — believe that video games represent valuable, constitutionally protected speech and that laws like those in California are an affront to First Amendment rights we cherish? What Mr. Yee and Mr. Steyer are asking us to believe is that all those average gamers and free speech advocates who lined up behind the video game industry and merchants who brought this case did so only out of a concern about the welfare of those companies.  Preposterous!  Anyone who knows anything about game industry politics knows that some rather serious tensions exist between gamers, game developers, and game retailers.

Incidentally, it’s particular silly for Mr. Yee to single out Wal-Mart in his comment yesterday since Wal-Mart actually goes to great lengths to keep “Mature”-rated games out of the hands of minors who might try to purchase them on their own. But I could care less about how much money Wal-Mart, any other retailer, or any video game developer makes from selling games. That’s the last thing on the mind of most First Amendment supporters when they praise this decision and it’s ridiculous that Mr. Yee and Mr. Steyer would list it as the primary motivation of the Court or supporters of the decision.

And then there’s Mr. Steyer’s comment that “today’s decision is a disappointing one for parents, educators, and all who care about kids.”  Utterly insulting tripe. Millions of parents like me “care about kids” passionately and devote most of our lives to raising them properly. I understand you want to help us do that, but you are not helping when you insult the very people you say your organization exists to support.

I have repeatedly praised Common Sense Media here and elsewhere for many of the outstanding services and information they provide to parents. My wife and I regularly consult CSM’s excellent movie and video game summaries before we let our kids consume certain titles. It was also my great privilege to serve on a blue ribbon online child safety task force that CSM created and co-sponsored.

But when Mr. Steyer veers into this sort of hysterical ‘you’re-either-for-these-laws-or-you’re-against-children’ sort of lunacy, it really makes me question whether I should frequent his organization’s website anymore or have any further interaction with this group. While I appreciate CSM’s efforts to empower parents with more and better information about the content our families consume, it is insulting in the extreme for Mr. Steyer to suggest that you can’t “care about kids” and also care about the First Amendment.

Like the majority of the justices on the Court, I support limits on how our government controls speech because we live in a nation that cherishes freedom of expression and personal responsibility.  We should not expect Uncle Sam to act as a national nanny and make subjective determinations about what is best for our families. As Catherine Ross, a professor at George Washington University Law School, noted in a nice Washington Post oped, “By rejecting this radical path, the justices [in Brown] protected our children by preserving our liberty.”

Quite right.  I’m proud the Supreme Court sided with freedom yesterday and against the sort of nannyism from above that Mr. Steyer and Mr. Yee apparently favor and equate with “caring about kids.”  These men obviously don’t take First Amendment rights quite as seriously as some of the rest of us. But shame on them for claiming that just because many of us (or the Courts) do take these rights and responsibilities seriously that it somehow means we don’t care about our children or that we only believe these things in order to make corporations happy.

Adam Thierer has already provided an excellent overview of the Supreme Court’s decision in Brown v. Entertainment Merchants Association, striking down a California law requiring age verification and parental consent for the purchase of “violent” videogames by minors. It’s worth calling attention to two key aspects of the decision.

First, the Supreme Court has clearly affirmed that the First Amendment applies equally to all media, including videogames and other interactive media. The Court has, in the past, often accorded lesser treatment to new media, as Cato’s excellent amicus brief explains [pp 3-15]. This approach, if applied consistently by the Court in the future, will ensure that free speech continues to be protected even as technology evolves in ways scarcely imaginable today.

Second, the Court correctly rejected California’s attempt to justify governmental paternalism as a supplement for parental responsibility [ Brown at 15-17]. The existing content rating system and parental controls in videogame consoles already empower parents to make decisions about which games are appropriate for their children and their values. As in the Sorrell decision handed down last week, the Court has rejected what amounts to an opt-in mandate—this time, in favor of letting parents “opt-out” of letting their kids play certain games or rating levels rather than requiring that they “opt-in” to each purchase. This is the recurring debate about media consumption—from concerns over violent or offensive speech to those surrounding privacy. And once again, speech regulation must yield to the less-restrictive alternatives of empowerment and education.

Both these points were at the heart of the amicus brief I filed with the Supreme Court in this case last fall (press release), along with Adam (my former Progress & Freedom Foundation colleague) and Electronic Frontier Foundation Staff Attorney Lee Tien and Legal Director Cindy Cohn. Here’s the summary of our argument in that brief, which provides as concise an overview of our reasoning as we could manage, broken down into separate bullets with quotations referencing the Court’s decision on that point. As you’ll see, the Court’s decision reflected all our arguments except for one, which the Court’s decision did not reach.

• Our Brief, Point 1: This Court has long held that content-based regulation of speech must yield to less restrictive means that do not affect First Amendment interests of speakers and willing listeners. Here, amici explain how a highly descriptive content rating system, an extensive array of parental empowerment tools, numerous household media control methods, and enforcement of existing consumer deception laws together constitute a less restrictive alternative to California’s law. Indeed, survey research conducted by the Federal Trade Commission shows that the videogame industry’s official rating and labeling system is not only widely recognized and used by parents but is also well enforced. Whatever the state’s interest, parents today already have the capacity to choose and control their children’s videogame consumption based on their own household standards. Government can help build awareness of parental control tools and methods, and punish deception, but there is no Constitutional justification for restricting this new and evolving form of speech.
• The Court: California cannot show that the Act’s restrictions meet a substantial need of parents who wish to restrict their children’s access to violent video games but cannot do so. The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games … [noting the FTC report in particular]. This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home. Filling the remaining modest gap in concerned-parents’ control can hardly be a compelling state interest [Brown at 15-16].

• Our Brief, Point 2a. Videogames are speech fully protected by the First Amendment, and both the “violence” and “interactivity” feared by California are integral, expressive aspects of books, plays and movies, as well as videogames.
• The Court: [W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears. [2-3, internal quotation omitted]

While Justices Kennedy, Ginsburg, Sotomayor and Kagan joined this majority opinion, written by Justice Scalia, I must note my concern here with the concurrence written by Justice Alito and Chief Justice Roberts:

In considering the application of un-changing constitutional principles to new and rapidly evolving technology, this Court should proceed with caution. We should make every effort to understand the new technology. We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time. We should not jump to the conclusion that new technology is fundamentally the same as some older thing with which we are familiar. And we should not hastily dismiss the judgment of legislators, who may be in a better position than we are to assess the implications of new technology. The opinion of the Court exhibits none of this caution. [1-2] When all of the characteristics of video games are taken into account, there is certainly a reasonable basis forthinking that the experience of playing a video game may be quite different from the experience of reading a book, listening to a radio broadcast, or viewing a movie. And if this is so, then for at least some minors, the effects of playing violent video games may also be quite different. The Court acts prematurely in dismissing this possibility out of hand. [16-17]

Fortunately, the five-vote majority carried the day, clearly establishing the principle that the First Amendment is medium-neutral over Alito & Roberts “wait and see, evaluate each new medium afresh” approach. Anyway, back to the good stuff: how well the Court lined up with our arguments!

• Our Brief, Point 2b. Every state “violent” videogame law has therefore failed strict scrutiny, and the Ninth Circuit’s decision was wholly consistent with the considered judgment of numerous courts.
• The Court: Our cases have been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of “sexual conduct,” [5-6] … California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors [17].

• Our Brief, Point 2c . Amici fear that California’s age-based restrictions will migrate to the Internet, where the ineffectiveness of age-verification tools could inspire identity-verification requirements that would chill adults’ access to fully protected speech.
• The Court: [This is the one argument the Court did not reach, which is hardly surprising, given the complicated issues online age verification raises, going back to the extensive COPA litigation.]

• Our Brief, Point 3a. The laboratory research on which California bases its legislative findings—to which California now asks this Court to defer—does not support harm to any compelling state interest. Social scientists hotly debate the methodological validity of media-violence research, and that research defines “violence” and “aggression” in ways that conflict with society’s understandings: Research that classifies the well-known children’s videogame “Super Mario Brothers” as “violent” is of dubious relevance to real-world concerns about violence.
• The Court: The State’s evidence is not compelling. California relies primarily on … studies [that] purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, “[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.” They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children’s feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game. [12-13]

• Our Brief, Point 3. Moreover, Turner deference is completely inapplicable to content-based regulation of fully protected speech.
• The Court: [California’s] reliance on Turner Broadcasting is misplaced. That decision applied intermediate scrutiny to a content-neutral regulation. California’s burden is much higher, and because it bears the risk of uncertainty, ambiguous proof will not suffice. [12] … Because the Act imposes a restriction on the content of protected speech, it is invalid unless California can demonstrate that it passes strict scrutiny—that is, unless it is justified by a compelling government interest and is narrowly drawn to serve that interest. The State must specifically identify an “actual problem” in need of solving, and the curtailment of free speech must be actually necessary to the solution. That is a demanding standard. “It is rare that a regulation restricting speech because of its content will ever be permissible.” [11]

In conclusion, let me again simply quote from the conclusion of our brief: “California’s legislature has succumbed to moral panic, as lawmakers have so often done when confronted with the media of a new generation. Speech is undoubtedly powerful, and new forms of speech are always controversial. Time and again, however, the feared harms of new forms of expression have proven to be fears, not harms. This case is no different.”

The Supreme Court wasn’t playing games with the First Amendment today. With its 7-2 decision in Brown v. EMA, the Court has protected video game creators and players from unconstitutional restrictions on what we can produce and play.

Today’s decision ensures that video games have First Amendment protection on par with books, film, music and other forms of entertainment and will help block other regulatory efforts that are justified by blindly alluding to the rationale that “it’s for the children.” The decision fits nicely alongside an impressive and growing string of recent First Amendment cases from the Court that significantly raise the bar against legislative efforts to regulate freedom of speech and expression.

Quick background: In May 2010, the Supreme Court announced that it would review a California law regulating the sale of violently-themed video games to minors. The case was Schwarzenegger v. Entertainment Merchants Association, but the name of the case changed to after Jerry Brown became governor of California.  The Ninth Circuit Court of Appeals had struck down a California law which prohibited the sale or rental of “violent video games” to minors, but California appealed and the SCOTUS took up the issue.  [Note: When we were still with the Progress & Freedom Foundation, Berin Szoka and I filed a big amicus brief with the Court in the case along with some folks at the Electronic Frontier Foundation.]  By a 7-2 vote, the Supreme Court backed the Ninth Circuit and overturned the California law. Justice Scalia wrote for the majority. Justices Thomas and Breyer dissented.

The crucial holdings in the decision are as follows:

1. Video games are protected speech deserving strict First Amendment scrutiny. The Court held: “Video games qualify for First Amendment protection.  Like protected books, plays, and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.  And ‘the basic principles of freedom of speech… do not vary’ with a new and different communication medium.”
2. Depictions of violence in video games cannot be treated as obscenity and regulated as such. The Court concluded flatly: “speech about violence is not obscene” and held that “a legislature cannot  create new categories of unprotected speech simply by weighing the value of a particular category against its social  costs and then punishing it if it fails the test.” It continues on: “the State of California wishes to create a wholly new category of content-based regulation that is permissible only for speech directed at children.  That is unprecedented and mistaken.  This country has no tradition of specially restricting children’s access  to depictions  of violence.”
3. The social science literature on the impact of violent games is inconclusive. The Court found that: “Psychological studies purporting to show a connection between exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act  aggressively.  Any demonstrated effects are both small and indistinguishable from effects produced by other media.”
4. Concerns about children cannot be used as an excuse for sweeping content regulation (especially when less-restrictive means exist of dealing with access to objectionable content.) Government cannot excuse censorship by pointing to fears about children’s access to violent depictions of media. The Court noted that, “California’s effort to regulate violent video games is the latest episode in a long series of failed attempts to censor violent entertainment for minors,” but that, “even where the protection of children is the object, the  constitutional limits on governmental action apply.” Violently-themed media is as old as literature itself, the Court noted. As has been the case with previous forms of violent content, parental responsibility is the better way to regulate access to potentially objectionable media. And the Court noted that tools and ratings exist to help parents do so.

This is the proper approach for a society that cherishes free speech, freedom of expression, and personal responsiblity. The Court did a great thing here today. Honestly, I was expecting a loss and had a long essay ready to go that reflected my disappointment.  Never have I been so pleased to tear up something I had spent so much time on!

A great day for the First Amendment.

P.S. As if often the case, best line in the decision came in a footnote: “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are  not  constitutional ones.  Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less  forms of speech than The Divine Comedy,” Justice Scalia wrote.

Additional TLF Reading on Video Games:

• Again, Most Video Games Are Not Violent
• <a title="Permanent link to Thoughts on Oral Arguments in Schwarzenegger v. EMA Video Game Case” href=”../2010/11/04/thoughts-on-oral-arguments-in-schwarzenegger-v-ema-video-game-case/”>Thoughts on Oral Arguments in Schwarzenegger v. EMA Video Game Case
• <a title="Permanent link to EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case” href=”../2010/09/18/eff-pff-amicus-brief-in-schwarzenegger-v-ema-supreme-court-videogame-violence-case/”>EFF-PFF Amicus Brief in Schwarzenegger v. EMA Supreme Court Videogame Violence Case
• If We Ban Violent Video Games, Why Not Violent Theme Park Attractions?
• Video Games, Media Violence & the Cathartic Effect Hypothesis
• More on Monkey See-Monkey Do Theories about Media Violence & Real-World Crime
• Will the Supreme Court Protect Kitten-Crushing Videos & Virtual Kid Porn but Not Video Games?
• Video Games, Free Speech & the Lunacy of “Ecogenerism”
• Like the Terminator, Video Game Censorship Efforts Just Won’t Die
• Video Games and “Moral Panic”
• Kids, Video Games, Fantasy, & Imagination
• Video Games, Violence, & Social “Science”: Another Day, Another Fight
• Dear Gov. Patterson… Regarding that Video Game Bill You Are About to Sign
• Do video games create cop killers?
• review: Dr. Kourosh Dini’s “Video Game Play & Addiction”
• review: Kutner & Olson’s “Grand Theft Childhood”
• presentation at PSU’s conference on future of video games
• Why hasn’t violent media turned us into a nation of killers?
• First Amendment & Video Games [Updated] Score: Gamers 11, Censors 0
• Sen. Rockefeller Gives Up on Parenting at Senate Violence Hearing
• Can Government Improve Video Game Ratings?
• An Indecency Regime for Video Games?
• Let’s Consider the Facts Before We Call In Government to Regulate Video Games

The Supreme Court will be issuing its opinion in the case Brown v. Entertainment Merchants Association any day now (TLF’s previous coverage is here). The case was previously known as Schwarzenegger v. Entertainment Merchants Association, but Mr. Schwarzenegger has been trying to stay out of court of late. I was just sent a draft of the statement that the Eagle Forum Education & Legal Defense Fund, which filed an amicus brief in the case, is planning to release if the decision goes its way. The Eagle Forum Education & Legal Defense Fund was founded by Phyllis Schlafly.

[Not really. This is a joke (but the quotes are true).]

[date] – The Eagle Forum Education & Legal Defense Fund (we just say “F’ed”) is happy to see that the U.S. Supreme Court has finally recognized that children are precious angels and need to be protected from reality. Its opinion in the Brown v. Entertainment Merchants Association case, released today, holds that states are free to ignore the First Amendment when it comes to children. While F’d has long advocated fidelity to the text of the U.S. Constitution, it believes “traditional values” are more important than some document written 224 years ago. In response to the many calls that our position in support of California’s attempt to ban video games is hypocritical considering our mission is “to enable conservative and pro-family men and women to participate in the process of self-government and public policy making so that America will continue to be a land of individual liberty,” and we support “parents’ rights to guide the education of their own children … and to home-school without oppressive government regulations,” we say don’t listen to what we’ve said. “Be a ‘doer, not a hearer only.'” (You can’t argue with that–it’s from the bible.)

As we stated in our amicus brief filing, “violent video games are the equivalent of ‘fighting words’ for kids who play them.” To that end, and emboldened by today’s decision, we are calling on Congress to “stop the violence” by enacting Federal restrictions similar to the California statute just upheld by the Supreme Court. Federal legislation is needed because digital downloads already represent 29% of game sales. Virtual “app stores” offered by companies such as Apple, Google, Amazon, and others allow children to access violent video games any time and from anywhere. Here are just a few examples of the sorts of games that are available on mobile phone app stores. They all “appeal[] to a deviant or morbid interest of minors” (to quote the language of the California law). Are your children playing these violent video games?

• Office Jerk – Now known by the slighly less-offensive name “OfficeJK”, the point of this game for the Android platform is to throw food, golf balls, a bug, a stapler, and even dynamite at a defenseless and nonviolent officemate.
• Dig Dug – Video games have been violent from the very beginning, with the first videogame “Space War.” Dig Dug, originally released in 1982 requires the player to kill “monsters” by either inflating them until they pop or dropping rocks on top of them (more on “crush videos” to come). Due to its age and the many emulators available for smartphones, this game is probably available for every platform including graphing calculators.
• Plants vs. Zombies – Another game available on a wide variety of platforms from PCs to game consoles to portable devices and phones, this game has been nominated for multiple Interactive Achievement Awards, the “Casual Game of the Year Award, and was one of the Best games of 2009 according to website Gamezebo. As you might surmise from the title, the game involves killing zombies. But you don’t just kill them by throwing fruits and vegetables at them (though that certainly does the trick on the early levels). Gameplay also involves explosions, rolling over zombies with giant walnuts, and literally mowing them down with lawn mowers. And the visuals are particularly disturbing, with limbs blown off and zombies literally turned to dust by explosions. It also makes fun of a special needs individual named “Crazy Dave.”
• Angry Birds – After the legality of “crush films” was barely upheld in 2008, it’s surprising this game even exists. The user scores point by flinging small birds into buildings and various other structures in an attempt to get the structures to collapse on top of pigs. To quote the California law, this is “especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim[s].”

It’s worth pointing out that with the exception of Office Jerk, which is unrated, all of the above games have been rated “Everyone” by the Entertainment Software Rating Board.

Phyllis Schlafly is not available for comment because she gets more self-fulfillment from “the daily duties of a wife and mother in the home.”

Five years ago this month, I penned a white paper on “Fact and Fiction in the Debate over Video Game Regulation” that I have been meaning to update ever since but just never seem to get around to it. One of the myths I aimed to debunk in the paper was the belief that most video games contain intense depictions of violence or sexuality.  This argument drives many of the crusades to regulate video games. In my old study, I aggregated several years worth of data about video game ratings and showed that the exact opposite was the case: the majority of games sold each year were rating “E” for everyone or “E10+” (Everyone 10 and over) by the Entertainment Software Rating Board (ESRB).

Thanks to this new article by Ars Technica‘s Ben Kuchera, we know that this trend continues. Kuchera reports that out of 1,638 games rated by the ESRB in 2010, only 5% were rated “M” for Mature. As a percentage of top sellers, the percentage of “M”-rated games is a bit higher, coming in at 29%. But that’s hardly surprising since there are always a few big “M”-rated titles that are the power-sellers among young adults each year.  Still, most of the best sellers don’t contain extreme violence or sexuality.

The primary criticism of these findings is that (1) violence is subjective and, therefore, (2) you can’t trust the industry to accurately rate it’s own content. Plus, (3) kids still see a lot of violent content, anyway.

Violence certain is subjective, as I’ve discussed here numerous times before. And it’s also true that the ESRB was created by the video game industry as a self-regulatory body to rate the content of games. That doesn’t mean the ratings are deceptive, however. Indeed, polls have generally shown parental satisfaction with the system, and when you compare ESRB ratings to independent rating schemes (like Common Sense Media’s) you see largely the same sort of labels and age warnings being affixed to various titles.  Sure, there are small differences at the margin, but they tend to be legitimately difficult cases (ex: how to rate a boxing game when the real-world equivalent is an actual sporting event that can be quite violent at times).

I’m never quite sure what to make of the third argument: that kids will still see a lot of violent games. If that’s true, is it the video game industry’s fault? Should no violent games be released because some kids might still find a way to see or play them? That’s an intolerable solution in a free society that treasures the First Amendment, of course.  Moreover, it really comes back to parental choice and responsibility.  When games cost $20 to $60 bucks a pop, it’s hard to even figure out how junior gets his hands on some of these games without Mom or Dad knowing. Moreover, even getting the game console into the house requires a significant outlay of cash, and even then, parents are prompted to set up parental controls when they get some of these devices. (All of them contain sophisticated controls but the initial configuration is slightly different on each).

In my opinion, the combination of the excellent ESRB ratings and the outstanding current generation console controls has resulted in one of the great user-empowerment success stories of modern times.  Parents have been given valuable information about games to make decisions regarding what is appropriate for their families and then also given the tools to take action on that information by establishing console settings in line with their household values. Sounds like an ideal state of affairs to me. And, better yet, as the data above illustrate, parents don’t even have to worry about most games being inappropriate for kids!

Now, excuse me while I get back to playing “Plants vs. Zombies” on the XBox with my kids!  What a great game that is. The whole family is loving it.

Hosted by SMU’s Guildhall video game law graduate program, the Game::Business::Law summit is the leading conference in the field. Follow the discussion on the #GBL2011 hashtag. Here’s the make-up of my privacy panel:

Moderator Professor Xuan-Thao Nguyen, SMU Dedman School of Law Speakers Jennifer Archie, Partner, Latham & Watkins LLP Andrew S. Ehmke, Partner, Haynes and Boone, LLP Dr. Joshua Fairfield, Washington & Lee School of Law Berin Szoka, Founder, TechFreedom

This is an all-star cast. Prof. Nguyen is a big name in video game law field; I had the privilege to work with Jennifer Archie on Internet law when I practiced at Latham; and Josh Fairfield is one of the few law professors I find myself in perfect philosophical harmony with. Check out this summary of his excellent 2009 paper Virtual Parentalism. I only met Andy last night at the reception, but he’s a solid thinker on the law of gaming. As they say on postcards: Wish you were here!

CLU seeks systemic perfection in Tron: Legacy

Note: The following post contains spoilers pertaining to the plot and theme of the film Tron: Legacy.

Near the end of Tron: Legacy, the character CLU (short for Codified Likeness Utility), on the verge of releasing his army of re-purposed computer programs into the brick-and-mortar world to destroy humanity, confronts Kevin Flynn, his creator-turned-nemesis, with a plaintiff, “I did everything you asked.”  Flynn, older and wiser than the character we met in 1982’s Tron, and his techno-idealism tempered by the realization that to save humanity he must destroy both his physical and virtual self, wistfully answers, “I know.”

It’s a rather poignant scene that punctuates the film’s unique take on technology and humanity. Traditionally in the movies, when technology turns evil, it does so with a will of its own. The Matrix and Terminator films are just two examples. Tron: Legacy, however, upends the idea. CLU, sure enough, turns on his human creator, but not out of rebellion, but to carry out his human-engineered programming.

You see, Flynn programmed CLU to create the “perfect system.” In the film, Flynn explains that, as a younger man he thought he could design a technology-based solution that would end war, illness, poverty and hunger and, in a nutshell, make humanity better. But when the Grid—the computer environment Flynn nurtured—actually does something spontaneously, spawning a new life form, so-called isomorphic programs (called isos for short), CLU destroys them. While this act of cybernetic genocide horrifies Flynn, from CLU’s perspective, it was nothing but a logical response. The isos, as free and independent entities that did not respond to his command and control, introduced an element of randomness and uncertainty into the Grid that CLU could not abide. They were an obstacle to the systemic perfection he was programmed to create and therefore had to be eliminated.

Maybe it was because I saw Tron: Legacy a few days after reading Peter Berkowitz’s superb essay on the rhetoric of Progressivism that I came away with this impression. But I don’t think I’m off-base. Here’s an excerpt for the essay that’s germane to my discussion. When the plot and theme of Tron: Legacy are considered, CLU could easily be substituted for the words progressivism and progressives in the paragraph below:

But progressivism went astray owing to a defect in its basic orientation. It rejected the sound principles of government embodied in the Constitution, because of a critical difference of opinion about human nature. Progressives believed that great improvements in the moral character of humanity and in the scientific understanding of society had rendered the Constitution’s scheme of checks and balances–or better its separation, balancing, and blending of power–unnecessary to prevent majority tyranny and the abuse of power by officeholders. Whereas the makers of the American Constitution believed that the imperfections of human nature and the tendency of people to develop competing interests and aims were permanent features of moral and political life, progressives insisted that progress allowed human beings, or at least the most talented and best educated human beings, to rise above these limitations and converge in their understanding of what was true and right. Indeed, according to the progressives the Constitution’s obsolete and cumbersome institutional design was a primary hindrance to democratic reforms to which all reasonable people could agree and which upright and impartial administrators would implement. It is a short step from the original progressives’ belief that developments in morals and science had obviated reasonable disagreements about law and public policy and dissolved concerns about the impartiality of administrators to the new progressives’ belief that in domestic affairs disagreement is indefensible and intolerable.

Still, my opinion was later reinforced by Adam’s review of The Net Delusion by Evgeny Morozov, a book that explores the dangers of cyber-utopianism.

I’ll leave it to commenters to argue whether I’m reading too much into the film. But to bolster my point, I’ll throw out a few final notes.

1. Flynn and his son Sam are presented as modern archetypical sci-fi movie good guys: the aging, wise techno-hippie and the angry-but-gifted slacker. In fact, the first few minutes of the film had me groaning because it appeared to be setting up the familiar meme of rogue hacker against the big bad corporation. Speaking of the missing-presumed-dead Kevin Flynn, one character recalls his dedication to a network that’s “free and open,” a loaded phrase to anyone following Internet technology policy these days. Yet by the time the movie gets going, the corporation is insignificant. It’s the hippie’s and slacker’s progressive assumptions that are tested. The “free and open” line, a loaded phrase to anyone following Internet technology policy these days, is used again by CLU as he prepares for world domination—although he means anything but.

2. Kevin Flynn’s rejection of the progressive ideal is central to the film’s resolution. He accepts responsibility for his error and pays the price for making it right. Sam and the sole remaining iso, Quorra, escape back to the physical world with the understanding that they can’t build “systems” to change humanity, but need to do it as individuals, i.e., by getting their hands dirty (a bit pat, to be sure, but this is still Hollywood).

3. Tron: Legacy, like the original Tron, is an allegory, and demands it be accepted as such. Computer programs don’t have personas. Human bodies cannot be reconstituted into electronic code. The Grid can stand for any third-party structure—government, organized religion, a corporation—that individuals chose to use a proxy for their own ethical obligations. The isos represent the persistent and unruly way the random choices and behavior of millions of human beings undermine even the most well-meaning attempts to centrally manage the direction of human society.

4. Such a message resonates now, at a time when politically and culturally, progressivism is resurgent. The idea that an institution—particularly a democratic government—can simultaneously realize a philosopher-king’s vision of human progress and protect freedom and individual liberty needs a sound critique. In this, maybe Tron: Legacy will begin a trend in pop culture.

I’m still digesting the transcript from Tuesday’s Supreme Court oral arguments in the important First Amendment video game case, Schwarzenegger v. EMA. [Full transcript is here.]  I thought I would post just a couple of quick thoughts here. [Reminder: here is the amicus brief that Berin Szoka and I filed in the case, and here is some analysis of the case by Larry Downes.]

On Defining “Deviant Violence”

Much of the discussion during oral arguments was preoccupied with defining the contours of the term “deviant violence.”  I was pleased to see the Justices asking some sharp questions about the interpretation of that term for regulatory purposes. In particular, I enjoyed Justice Scalia’s remarks and questions to California Deputy Attorney General Zackery Morazzini, who argued the case on behalf of the state. Scalia said:

I am not just concerned with the vagueness. I am concerned with the vagueness, but I am concerned with the First Amendment, which says Congress shall make no law abridging the freedom of speech. And it was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create…  a whole new prohibition which the American people never — never ratified when they ratified the First Amendment.  They knew they were — you know, obscenity was — was bad, but — what’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Does — will that affect them? Of course, I suppose it will.  But is — is that — are — are we to sit day by day to decide what else will be made an exception from the First Amendment? Why — why is this particular exception okay, but the other ones that I just suggested are not okay? (p. 15-16)

Indeed, that’s what is at stake in this case: The beginning of a new class of exceptions to the First Amendment based upon concerns about children’s exposure to depictions of “excessive” or “deviant” violence.”  Once you open up this can of worms, the sky is likely the limit in terms of how far governments might go to regulate speech in the name of “protecting children.”

If a majority of the Justices choose to side with the State of California and open the floodgates to a new era of speech regulation, I very much looking forward to seeing how they reconcile that with their decision last term in the controversial case of United States v. Stevens. In Stevens, the Court struck down a federal law that criminalized the creation or sale of videos showing animal cruelty. The law that the Court overturned was particularly concerned with “crush videos,” which, according to the Court, “feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish.” As I pointed out in this earlier essay, it would seem rather peculiar that the Court would allow the dissemination of videos of real kittens having their heads crushed by naked women in high heels, which kids might be able to see on the Internet, but then hold here in the Schwarzenegger case that allowing a minor to buy an M-rated video game with depictions of violence is verboten.  Hard to find the logic in that!

But the Court is going to have an even harder time reconciling regulation of depictions of violence with obscenity law and then delineating the boundaries of what governments can and cannot censor or control the sale of.  At least with obscenity, we have one bright-line test: Is sexual penetration shown?  Of course, things get pretty pretty murky after that.  Regardless, what is the equivalent test for violence in video games, movies, or television? Is it decapitation or exploding heads?  What if it’s a zombie head?  What if it’s just a ear that gets blown off a zombie’s head? What if you beat the zombie over the head with a baseball bat to kill him but his head never comes off? Or, as Justice Sotomayor asked, “what happens when the character gets maimed, head chopped off and immediately after it happens they spring back to life and they continue their battle. Is that covered by your act? Because they haven’t been maimed and killed forever. Just temporarily.” (p. 58)

You get the point: A lot of line-drawing is going to need to be done if the Court goes down this path.

On Juries & “Community Standards”

So, let’s drill a little deeper into the line-drawing issue and the enforcement of such regulatory ordinances. During oral arguments, there was an interesting exchange regarding how the State of California, or any other local government, might go about enforcing more speech-limiting ordinances on this front. Justice Ginsburg asked Assistant AG  Morazzini: “does California have any kind of an advisory opinion, an office that will view these videos and say, yes, this belongs in this, what did you call it, deviant violence, and this one is just violent but not deviant? Is there — is there any kind of opinion that the — that the seller can get to know which games can be sold to minors and which ones can’t?”  A terrific question and one followed up by Justice Scalia, who joked (I think): “You should consider creating such a one. You might call it the California office of censorship. It would judge each of these videos one by one.”

In response, Mr. Morazzini defaulted to the old obscenity playbook and argued that:

California’s not doing that here. The standard is quite similar to that in the sexual material realm. California is not acting as a censor. It is telling manufacturers and distributors to look at your material and to judge for yourselves whether or not the level of violent content meets the prongs of this definition. (p. 24)

Thus, Mr. Morazzini wants to dismiss the entire inquiry with the retort: “we ask juries to judge sexual material and its appropriateness for minors as well.”  But that doesn’t necessarily make such regulation any less offensive in the eyes of the First Amendment.  If the state empowers juries to censor, well, it’s still censorship. It’s just censorship with a slightly more democratic face!

Of course, in the field of First Amendment jurisprudence, this is all filed under the banner of “community standards” regulation. As Mr. Morazzini suggests, these is, indeed, a history of it in this country when it comes to obscenity law, although its increasingly rare.  Regardless, I have argued that the time has come to think differently about the appropriateness of “community standards” regulation.  Here’s how I put it in some remarks I made at the Oxford University Internet Institute last year:

It is my hope and belief that we are now in a position to more fully empower parents such that government regulation of content and communications will be increasingly unnecessary. In the past, it was thought to be too difficult for families to enforce their own “household standard” for acceptable content. Thus, many believed government needed to step in and create a baseline “community standard” for the entire citizenry.  Unfortunately, those “community standards” were quite amorphous and sometimes completely arbitrary when enforced through regulatory edicts.  Worse yet, those regulatory standards treated all households as if they had the same tastes or values—which is clearly not the case in most pluralistic societies. If it is the case that families now have the ability to effectively tailor media consumption and communications choices to their own preferences—that is, to craft their own “household standard”—then the regulatory equation can and should change.  Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.  Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children. Going forward, our goal should be to ensure that parents or guardians have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Optimally, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families. In my work, I refer to this as the “household empowerment vision.”

What we have with the Schwarzenegger case is the perfect test case for which direction the Court wants to take us.  Will the Court hold on to the past and the old vision of “community standards” regulation that the State of California wants to extend?  Or will the Court recognize that that standard was really a second-best surrogate for more direct parental and household-based standards of control?  The latter position is the one more consistent with a free, diverse society.  As I argued in my old book on Parental Controls & Online Child Protection:

Decisions about acceptable media content are extraordinarily personal; no two people or families will have the same set of values, especially in a nation as diverse as ours. Consequently, it would be optimal if public policy decisions in this field took into account the extraordinary diversity of citizen and household tastes and left the ultimate decision about acceptable content to them. That’s especially the case in light of the fact that most U.S. households are made up entirely of adults.

The ideal state of affairs, therefore, would be a nation of fully empowered parents who have the ability to perfectly tailor their family’s media consumption habits to their specific values and preferences. Specifically, parents or guardians would have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information. Importantly, those tools and methods would give them the ability to not only block  objectionable materials, but also to more easily find content they feel is appropriate for their families.

On The Role of Parental Controls in First Amendment Jurisprudence

Finally, let’s talk about those parental controls for a moment and the role they play in debates over First Amendment jurisprudence.  At one point during the oral arguments on Tuesday, Chief Justice Roberts interrupted video game industry lawyer Paul M. Smith of Jenner & Block to say that, “any 13-year-old can bypass parental controls in about 5 minutes.”  In response, Mr. Smith correctly noted that “That is one element of about five different elements” and cited a couple of other things such as the information conveyed by the video game’s excellent ratings system, as well as household-level controls / restrictions and the “power of the purse” that parents can exercise when junior asks for $50-$60 bucks to buy one of these games.

What Mr. Smith was getting at here is that today we have access to what I have called “a mosaic of parental control tools and methods” and what is really essential for First Amendment jurisprudence is that the Court not pin everything on just one of those tool or method.  Yes, some kids can evade parental controls, ignore household rules, steal money from Mom or Dad’s wallet to buy a game, etc.  But the combination of these many layers of control constitute what the court has repeatedly called “the less restrictive means” of dealing with these concerns compared to the sweeping nature of government content controls.

Importantly, we should recall what the Supreme Court said about the less restrictive means test in its 2000 decision in U.S. v. Playboy Entertainment Group (2000), which echoed its earlier holding in Reno v. ACLU.  Specifically, in the Playboy case, the Court held that:

[T]argeted blocking [by parents] enables the government to support parental authority without affecting the First Amendment interests of speakers and willing listeners — listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. 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.

Moreover, the Court held that:

It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.

This is an extraordinarily high bar the Supreme Court has set for policymakers wishing to regulate modern media content.  As constitutional law scholar Geoffrey R. Stone of the University of Chicago School of Law has noted:

The bottom line, then, is that even in dealing with material that is “obscene for minors,” the government cannot directly regulate such material… Rather, it must focus on empowering parents and other adults to block out such material at their own discretion, by ensuring that content-neutral means exist that enable individuals to exclude constitutionally protected material they themselves want to exclude. Any more direct regulation of such material would unnecessarily impair the First Amendment rights of adults.

This is why parental control tools and methods are more important than ever before. The courts have largely foreclosed government censorship and placed responsibility over what enters the home squarely in the hands of parents.  But will the Supreme Court reverse this jurisprudential trend with its decision in the Schwarzenegger v. EMA decision?  I hope not.  If they do, it will undo about 15 years of really excellent case law on this front.

Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors. The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.

There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.

But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment. The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.

And in the famous Pacifica case, the Court upheld fines levied against a radio station for airing the famous George Carlin monologue that, not-so-ironically, satirizes the FCC for banning seven particular words from being uttered over the public airwaves.

The basis for that decision was that children could be negatively influenced from hearing such language. And children have easy access to radio and TV, while parents had no effective way to keep particular broadcasts out of the house.

In today’s argument, California’s legal arguments center largely on another case, the Supreme Court’s 1968 decision in Ginsberg. There, the Court upheld state restrictions on the sale of pornography to minors, even though the material was protected speech for adult purchasers.

In Schwarzenegger v EMA, California is urging the Court to extend Ginsberg’s reasoning to include content that meets it definition for violent video games. The statute defines “violent video games” as those “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

Ginsberg, the state argues in its brief, upheld a ban the sale of sexual content to minors because such content is dangerous to their development. So too, they argue here, with violent video games. (Parents and other adults, of course, could still buy the games for minors if the statute were to go into effect.)

Indeed, the state argues that such material has as much if not more of a negative impact on the development of children than does sexual material.

That, of course, is a question open to considerable debate. After the fact, the state cites a number of academic studies that find a correlation between violent video game exposure (including games, such as Super Mario Brothers, well outside the the California definition) and anti-social behavior. But, as excellent reply briefs from the Entertainment Merchants Association and a joint brief from the Progress and Freedom Foundation and the Electronic Frontier Foundation point out, the methodology in these studies has been roundly criticized.

Moreover, California doesn’t seem to understand that the statistical significance of a correlation does not necessarily translate to real-world behavior—correlation is not the same as causation, no matter how strong the statistics. And even the authors of the studies most relied on by the state recognize that it isn’t clear in which direction the correlation moves—are children who play violent video games more likely to have violent thoughts because they played the game, or are pre-existing violent thoughts what attracts them to the games?

Why Video Games? Why Now?

The Court may focus on those studies in its decision, but I have a different question. Why are California and other states picking on video games, and why now? That, to me, is the more interesting problem, one that gets little attention in the briefs and, I would guess, in the Court’s eventual decision.

Perhaps the why is obvious: as EMA’s brief points out, similar attacks have accompanied the rise in popularity of every new form of media to emerge throughout U.S. history.

The California statute … is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different.

The PFF/EFF brief goes farther, accusing California legislators of succumbing to “moral panic, as lawmakers have so often done when confronted with the media of a new generation.”

Examples as varied as Greek classics, the Bible, the Brothers Grimm and Star Wars all suggest, EMA points out, that extreme–even gruesome–violence has always been a favorite subject of literature, often aimed specifically at children. As federal appellate judge Richard A. Posner wrote in rejecting a similar Indiana law, “Self defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young.”

But why now? The answer is, not surprisingly, Moore’s Law. Laws regulating the content or distribution of video games are a classic example of the conflict I described in The Laws of Disruption.

As technology has made video game graphics more realistic and lifelike, they have captured the attention—and here the nightmares—of regulators in the real world who equate what they see on the screen with behaviors that would clearly violate laws and norms of the real world. They don’t like what they see in games including Grand Theft Auto and Resident Evil, and their impulse is to find a way, somehow, to stop it, even if it’s only a simulation.

It was not that long ago—in my life time, in any case—that video games were still in their Neolithic Era. Consider Pong, the first home video game from Atari in 1975. It would take an imagination greater than mine to think of the batting of a block of monochrome pixels by a bar of pixels to be violent enough to corrupt youth; likewise the breaking of a wall of pixels one at a time in the follow-on game Breakout.

But a few years later, consider the commercial (courtesy of YouTube) for Activision’s ice hockey game.

The game promises to be one of the “roughest” video games ever, “battling for the puck” with “fierce body checking” and “ruthless tripping.” Just watching the players fight it out drives a meek-looking Phil Hartman into a frenzy; within a few seconds he seems ready to attack the clerk who teases him that he’s not yet ready for it.

But despite an ad that explicitly suggests a connection between playing (or even watching the game) and becoming violent, the actual graphical quality of the violence is so disconnected from visual reality that it never occurred to any state legislature to ban or otherwise restrict it.

Now fast-forward just a few short decades later to the imminent release of Xbox 360’s Kinetics and one of the games that takes advantage of it called Kinectimals.

Using Microsoft’s new sensor technology, realistically-rendered animals can be controlled simply by issuing voice commands or by mimicking the desired movements by standing in front of the images. It hardly seems possible that the same beings who invented Pong could have advanced to Kinectimals within the span of one human lifetime. But we did.

Coupled with new 3D technology and increasingly large, high-fidelity displays, video games have in the course of only a few decades and a few cycles of Moore’s Law, advanced to the point of challenging the cinematic qualities of movies. Indeed, games and films are converging, and now use much of the same technology to produce and to display. A new sub-genre of user-produced content involves taking the cinematic interludes within the games and using them to produce original films. After all, video game users today not only control game play but also lighting, camera angles, and point of view.

Why not? As Nicholas Negroponte would say, bits are bits.

So now that video games offer fidelity in imagery and movement that is comparable to film, the law has awakened to both their positive and negative impacts on those who interact with them. Since the First Amendment clearly doesn’t allow interference with the sale of violent content to adults, California focused on children. But it’s clear from the tone of the state’s brief that they just plain don’t like certain video games, just as they didn’t like certain movies and certain books in an early age of mass-market technologies. As before, they would like, if they could, to turn the clock back.

Of course that is always the response of the law to new technologies that challenge our conceptions of reality. The only difference between the comic book burnings of the 1950’s and the emotional responses of legislators today is the speed with which those new technologies are arriving. The killer apps come faster all the time. And with them, the counter-revolutionaries.

Frozen in Time, Lost in Relevance

Which is why the California statute suffers from another common and fatal flaw of laws attempting to hold back new technologies: early obsolescence. Even if the Supreme Court upholds the law, its effect will be minimal at best.

Why? Lost in the legal arguments (and reduced to a mere footnote in the EMA brief) is the impending anachronism of the California statute. It assumes a world, disappearing almost as quickly as it arrived, in which video games are imported into California as physical media in packages, and sold in retail stores.

Consider, for example, Section 1746.2:

Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18” outlined in black. The “18” shall have dimensions of no less than 2 inches by 2 inches. The “18” shall be displayed on the front face of the video game package.

But sales of video games in media form are rapidly declining as broadband connections make it possible for game developers and platform manufacturers to transport the software over the Internet. So even if the law is ruled constitutional, it will apply to an ever-shrinking portion of the video game market. There will soon be no “retail sale” and no “front face” of a “package” onto which to put a label in the first place.

These industry changes, of course, aren’t being made to evade laws like California’s. Digital distribution reduces costs and eliminates middlemen who add little or no value (the retailers, the packagers, the truckers). More to the point, they allow the companies to establish on-going relationships with their customers, which can be leveraged to selling add-on chapters and levels, on-line play, and the sale of related product and content, including films and movies.

The industry, in other words, is not only evolving in terms of sophistication and realism of the product. The same technologies are also scrambling its supply chain. And what is emerging as the new model for “games” is something in which California and other states have almost no regulatory interest.

So it seems an odd time to target legislation at a particular and disappearing version of the industry’s content and retail channels. Even if the Court upholds the California law, it will likely have little impact on the material at which it is aimed.

But that’s often the case with laws trying to manage the unpleasant social side effects of new technologies just as they become visible to the outside world. The pace of legal change can’t hope to keep up with the pace of technological change, making this law, like many others, out-of-date even before the ink is dry.

Which is not to say that the Supreme Court’s decision in this case won’t matter. Another feature of statutes like this, unfortunately, is a high likelihood of unintended consequences. The potential for the Court’s decision—pro or con–to do mischief in the future, however, to unrelated industries and dissimilar content, is legion.

For example? As the PFF/EFF brief points out, California and other states may try to extend the ban on sales to minors to online channels. But it isn’t so easy to determine the age of an online buyer as someone in your brick-and-mortar store. “Applying the law online would likely require mandatory age verification of all online gamers because the law prohibits any sale or rental to a minor,” PFF/EFF argues, “even if the vendor had no evidence that the buyer was a minor.” That feature of an earlier federal effort to control pornography online was the undoing of the statute.

But in the Supreme Court, and the lower courts who interpret its decisions, anything can happen, and usually does.

By Berin Szoka & Adam Thierer

Yesterday, the Progress & Freedom Foundation (PFF) and Electronic Frontier Foundation (EFF)  filed a joint amicus brief with the U.S. Supreme Court urging the Court to protect the free speech rights of videogame creators and users and asking the justices to uphold a ruling throwing out unconstitutional restrictions on violent videogames.  At issue is a California law that bans the sale or rental of “violent” videogames to anyone under the age of 18, among other regulations. While the law was passed in 2005, it has never taken effect, as courts have repeatedly ruled it unconstitutional. California appealed its loss at the Ninth Circuit Court of Appeals to the Supreme Court.  The case is Schwarzenegger vs. EMA.

This case has profound ramifications for the future of not just videogames, but all media, and the Internet as well. Although we’ve had 15 years of fairly solid Supreme Court case law on new media issues, a loss in the Schwarzenegger case could reverse that tide.  In the amicus brief, we explain how the current videogame content rating system empowers parents to make their own decisions without unconstitutionally restricting this new and evolving form of free speech.  Our brief is focused on three major arguments:

1. Parental Control Tools, Household Media Control Methods, Self-Regulation and Enforcement of Existing Laws Constitute Less Restrictive Means of Limiting Access to Objectionable Content than Government Regulation of Constitutionally Protected Speech
2. Videogame Content is Constitutionally Protected Speech Deserving Strict Scrutiny
3. The State Has Not Established a Compelling Government Interest in Restricting the Sale of Videogames to Minors

The filing can be found online here and it is embedded down below.  As always, the Media Coalition has done an outstanding job summarizing the case and listing all the major briefs filed with the Court in this matter, so check out their Schwarzenegger v. EMA page for everything you need to know about this case.  GamePolitics.com also offers excellent ongoing coverage of the case. In particular, check out briefs by:

• The Entertainment Software Association reply brief
• The Comic Book Legal Defense Fund by First Amendment legal wit Bob Corn-Revere
• The Center for Democracy & Technology, among others, focusing on the dangers of expanded age verification for the Internet, which PFF, CDT and EFF recently filed on in the FTC’s COPPA review proceeding.
• this brief by various First Amendment scholars led by Eugene Volokh
• the Media Coalition & several other groups

EFF – PFF Supreme Court Amicus Brief in SCHWARZENEGGER v EMA Video Game Case http://d1.scribdassets.com/ScribdViewer.swf

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 ability — and the responsibility — to make appropriate media determinations for their kids.  We shouldn’t expect The Terminator Arnold Schwarzenegger to be our national nanny.

“Don’t turn COPPA into a sweeping age verification mandate for the Internet!” That was essentially the core message of joint comments (below) Adam Thierer and I today filed with the Center for Democracy & Technology and the Electronic Frontier Foundation on the FTC’s Implementation Review of the rules that implement the Children’s Online Privacy Protection Act of 1998 (which requires verifiable parental consent for kids under 13 to use most interactive sites and services if those sites are “directed to” them or if the site has “actual knowledge” it might be collecting personal information from such kids or allowing them to share such information through the site).

Specifically, we counsel the Commission against expanding COPPA beyond its original, limited purposes and scope, or calling on Congress to enact an expansion. In a techno-functional sense, COPPA is already “expansive,” since it is essentially device- and technology- neutral—essentially applying to any site or service that uses the Internet. That flexibility should allow the FTC to apply the statute in a changing landscape without further legislative changes. But we explain why COPPA is necessarily narrow in its age scope and the “directed to” and “actual knowledge” concepts that actually trigger COPPA’s requirements—and why changing any one of these three critical parts would inevitably lead to unconstitutional restrictions on the speech rights of adults, minors, and site operators, while actually reducing online privacy but without enhancing the online safety of children.

We call instead for the agency (i) to use the breadth and flexibility already given to it by Congress in the COPPA statute to enforce the statute in a manner consistent with the rapidly changing technical landscape and (ii) to supplement enforcement of that existing law with increased educational efforts and promotion of parental empowerment solutions.

Adam and I certainly have our differences with CDT and EFF on some issues, but this is not one of them! I’m deeply proud to join with these organizations in pointing out the unintended consequences of expanding regulation in an area where all too many people stop thinking carefully about the effects of regulation because, they seem to think, “We can never do enough for the children!” As we point out in our comments, the trade-offs here aren’t just between “The Children” and anyone’s narrow economic interests, but run far, far deeper. Adam & I did our best to succinctly capture the true, complex cluster of issues at stake with the title of the paper we released last summer about COPPA expansion: “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech.”

The stakes here for our digital future could hardly be higher, yet more subtle. Everyone understands the “Internet Kill Switch” concept in cybersecurity debates, for example, but few really stop to think about what it means to require websites to treat children differently given the fundamental technological reality that site operators don’t know who children are (except for sites “directed to” children and in cases of actual knowledge—just as COPPA already requires), and must therefore attempt first to identify everyone before they can even begin to apply any child-specific requirements. If you want to read more on this subject, check out my recent testimony to the Senate Commerce Committee on COPPA and follow-up questions for the record, or my initial thoughts on the COPPA review.

CDT-PFF-EFF Joint Comments in Matter No. P104503

The Entertainment Software Association, which represents the video game industry, has just released its latest “Essential Facts about the Computer and Video Game Industry” publication.  It’s a handy annual resource that I always look forward to reading. There are many interesting facts and figures found in the report, but here a few worth calling out from the data they have aggregated:

• 93% of the time parents are present at the time games are purchased or rented
• 64% of parents believe games are a positive part of their children’s lives
• 86% of the time children receive their parents’ permission before purchasing or renting a game
• 48% of parents play computer and video games with their children at least weekly
• 97% of parents report always or sometimes monitoring the games their children play
• 76% of parents believe that the parental controls available in all new video game consoles are useful

The survey also bolsters the findings of many other polls and reports which have found that parents employ a variety of what I have labeled “household media rules” to monitor or control their children’s media consumption:

• 83% of parents place time limits on video game playing
• 78% of parents place time limits on television viewing
• 75% of parents place time limits on Internet usage
• 66% of parents place time limits on movie viewing

Once again, these findings illustrate that parents are parenting!  Parents are playing an active role in the lives of their children, monitoring their media use, and mentoring them with the assistance of the ratings and parental control technologies / methods at their disposal.

I sure hope the Supreme Court is listening as they prepare to take up the constitutionality of laws regulating video game sales.

David Leonhardt of The New York Times penned an interesting essay a few days ago entitled, “Do Video Games Equal Less Crime?” reflecting upon the same FBI crime data I wrote about earlier this week, which showed rapid drops in violent crime last year (on top of years of steady declines).  Crimes of all sorts plummeted last year despite the serious economic recession we find ourselves in.  Downturns in the economy are typically followed by upticks in crime. Not so this time.  Which leads Leonhardt to wonder if perhaps exposure to violent media (especially violent video games) could have played a positive role in tempering criminal activity in some fashion:

Video games can not only provide hours of entertainment. They can also give people — especially young men, who play more than their fair share of video games and commit more than their fair share of crimes — an outlet for frustration that doesn’t involve actual violence. Video games obviously have many unfortunate side effects. They can promote obsessive, antisocial behavior and can make violent situations seem ordinary. But might video games also have an upside? I’m willing to consider the idea.

Go Back to the Greeks

What Leonhardt is suggesting here goes by the name “cathartic effect hypothesis” and debates have raged over it for centuries.  Seriously, the fight goes all the way back to the great Greek philosophers Plato and Aristotle. And, as with everything else, Aristotle had it right! Well, at least in my opinion he did, but I am a rabid Aristotealian.  While Plato thought the media of his day (poetry, plays & music) had a deleterious impact on culture and humanity, Aristotle took a very different view. Indeed, most historians believe it was Aristotle who first used the term katharsis when discussing the importance of Greek tragedies, which often contained violent overtones and action. He suggested that these tragedies helped the audience, “through pity and fear effecting the proper purgation of these emotions.” (See Part IV of Aristotle’s Poetics,) Aristotle spoke highly of tragedies that used provocative or titillating storytelling to its fullest effect:

Tragedy is an imitation not only of a complete action, but of events inspiring fear or pity. Such an effect is best produced when the events come on us by surprise; and the effect is heightened when, at the same time, they follow as cause and effect. The tragic wonder will then be greater than if they happened of themselves or by accident; for even coincidences are most striking when they have an air of design. We may instance the statue of Mitys at Argos, which fell upon his murderer while he was a spectator at a festival, and killed him. Such events seem not to be due to mere chance. Plots, therefore, constructed on these principles are necessarily the best.

Of “Tragic Wonder” & Balanced Passions

Again, what Aristotle believed was important about such tales was precisely that they help give rise to a heightened sense of “tragic wonder” that helped us purge away or balance out similar passions brewing in the human psyche. [For a broader discussion of the catharsis debate from Plato and Aristotle on down to the modern “media effects” psychologists and social scientists, see Marjorie Heins’s brilliant 2001 book, Not in Front of the Children: ‘Indecency,’ Censorship and the Innocence of Youth, p. 228-253.]

One might just as easily apply this thinking to many of the most popular video games children play today, including those with violent overtones. That’s exactly what Gerald Jones does in his book Killing Monsters: Why Children Need Fantasy, Super Heroes, and Make-Believe Violence:

One of the functions of stories and games is to help children rehearse for what they’ll be in later life. Anthropologists and psychologists who study play, however, have shown that there are many other functions as well—one of which is to enable children to pretend to be just what they know they’ll never be. Exploring, in a safe and controlled context, what is impossible or too dangerous or forbidden to them is a crucial tool in accepting the limits of reality. Playing with rage is a valuable way to reduce its power. Being evil and destructive in imagination is a vital compensation for the wildness we all have to surrender on our way to being good people.

Judge Richard Posner used similar logic when penning the 7th Circuit’s 2001 decision in American Amusement Machine Association v. Kendrick, which struck down an Indianapolis ordinance prohibiting anyone who operated more than five arcade games on their premises from allowing an unaccompanied minor to play games that would be considered “harmful to minors.” In the Kendrick decision, Posner noted that “To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.”

Don’t Be the Boy in the (Intellectual) Bubble

Posner’s opinion for the court was a blistering tour-de-force that included a review of violence in literature throughout history. “Self-defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young,” he noted. “To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it,” he argued. “People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.” This is a different sort of construction of cathartic effect hypothesis. In essence, Posner is explaining how exposure to violently-themed media helps to gradually assimilate us into the realities of the world around us.

Such thinking will undoubtedly remain controversial—perhaps even outlandish—to some. But the history of art and entertainment has always been filled with its share of controversies in terms of its impact on culture and society. Indeed, one generation’s trash often becomes a subsequent generation’s treasure. Sculptures, paintings and works of literature widely condemned in one period were often praised—even consider mainstream—in the next.  As The Economist magazine editorialized in the summer of 2005: “Novels were once considered too low-brow for university literature courses, but eventually the disapproving professors retired. Waltz music and dancing were condemned in the 19^th century; all that was thought to be ‘intoxicating’ and ‘depraved’, and the music was outlawed in some places. Today it is hard to imagine what the fuss was about. And rock and roll was thought to encourage violence, promiscuity and Satanism; but today even grannies listen buy Coldplay albums.” I’ve written more about such “moral panics” here in the past.

Humans Adapt

Here is the important point: somehow we get through it. We learn to assimilate culture into our lives that previous generations feared or loathed. As the late University of North Carolina journalism professor Margaret A. Blanchard once noted: “[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.” And Thomas Hine, author of The Rise and Fall of the American Teenager, argues that: “We seem to have moved, without skipping a beat, from blaming our parents for the ills of society to blaming our children. We want them to embody virtues we only rarely practice. We want them to eschew habits we’ve never managed to break.”

If you subscribe to the cathartic effect school of thinking, however, you typically do no fear social or technological change as much because you realize that human adapt. We learn to cope with cultural or technological changes, and in many cases we are actually made better off as a species because of those changes.

Can It Be Proven One Way or the Other?

But is there any hard evidence to prove or disprove the cathartic effect hypothesis? The problem is, as I have noted here before repeatedly, we must never forget the first iron law of statistical analysis: Correlation does not necessarily equal causation. Whether we are talking about those artificial lab experiments or the real-world data sets, we cannot lose sight of the fact that just because B follows A it does not mean A caused B. That is particularly the case when it comes to human behavior, which is complex and ever-changing.

That being said, I’ve also suggested that, at some point, a consistent trend in real-world crime data must suggest that at least the opposite is not the case. Thus, when it comes to the supposed relationship between violent media and real-world violence, I have to believe that if there was anything to the thesis that a correlation exists, we would have to see it manifest itself at some point in crime statistics. But we have now experienced roughly 15 years of steady drops in all categories of criminal activity, especially juvenile violence, while at the same time witnessing a fairly steady increase in exposure to video games and violently-theme media in general.

Incidentally, Leonhardt’s New York Times article cites a recent study by Gordon Dahl and Stefano DellaVigna that appeared in the Quarterly Journal of Economics in May 2009 entitled, “Does Movie Violence Increase Violent Crime?” which tried to use some hard data to evaluate the cathartic effect hypothesis. Dahl and DellaVigna found that:

exposure to violent movies has three main effects on violent crime: (i) it significantly reduces violent crime in the evening on the day of exposure; (ii) by an even larger percent, it reduces violent crime during the night hours following exposure; (iii) it has no significant impact in the days and weeks following the exposure. We interpret the first finding as voluntary incapacitation: potential criminals that choose to attend the movie theater forego other activities that have higher crime rates. As simple as this finding is, it has been neglected in the literature, despite its quantitative importance. We interpret the second finding as substitution away from a night of more volatile activities, in particular, a reduction in alcohol consumption. The third finding implies that the same-day impact on crime is not offset by intertemporal substitution of crime. An important component of these interpretations is the sorting of more violent individuals into violent movie attendance. These findings appear to contradict evidence from laboratory experiments that document an increase in violent  behavior following exposure to movie violence.

Of course, it’s just one study, so I’m not ready to rest my entire case upon it (or even dozens of other studies like it).  But I do think they’re on to something.

I’ve had plenty to say here before about the “monkey see, monkey do” theories bandied about by some researchers and regulatory proponents who believe there is a correlation between exposure to depictions of violence in media (in video games, movies, TV, etc) and real-world acts of aggression or violent crime.  I have made three arguments in response to such claims:

(1) Lab studies by psychology professors and students are not representative of real-world behavior/results. Indeed, lab experiments are little more than artificial constructions of reality and of only limited value in gauging the impact of violently-themed media on actual human behavior.

(2) Real-world data trends likely offer us a better indication of the impact of media on human behavior over the long-haul.

(3) Correlation does not necessarily equal causation. Whether we are talking about those artificial lab experiments or the real-world data sets, we must always keep this first principle of statistical analysis in mind. That is particularly the case when it comes to human behavior, which is complex and ever-changing.

What got me thinking about all this again was the release of the FBI’s latest “Preliminary Annual Uniform Crime Report of 2009.” The results are absolutely stunning. Here’s a brief summary from New York Times:

Despite turmoil in the economy and high unemployment, crime rates fell significantly across the United States in 2009, according to a report released by the Federal Bureau of Investigation on Monday. Compared with 2008, violent crimes declined by 5.5 percent last year, and property crimes decreased 4.9 percent, according to the F.B.I.’s preliminary annual crime report. There was an overall decline in reported crimes for the third straight year; the last increase was in 2006.

Here are the percentage declines by overall crime category for the past 4 years, and more tables and charts depicting the declines for specific juvenile crimes can be found down below:

Again, these stunning declines occurred in the midst of one of the most significant economic downturns that America has experienced in decades. That’s not usually what criminologists find happens during most recessionary periods.

Anyway, what am I driving at here?  Well, at a minimum, this real-world evidence should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation, who all too often make casual inferences about the relationship between media exposure and various social indicators. Such a causal relationship is even more dubious today since all Americans, especially youngsters, are surrounded by a much wider variety of media than ever before. According to the Kaiser Family Foundation’s report “Generation M2: Media in the Lives of 8- to 18-Year-Olds,” youth exposure to just about all forms of media is up. The amount of time they spent with video games rose from an estimated 26 minutes in 1999 to 1 hour and 13 minutes in 2009.  And TV exposure went from 3:47 to 4:29 over the same 10-year period. Movie viewing time is also up.

So, let’s assume this means that exposure to depictions of violence in games, TV and movies is up as well.  At some point, if the “monkey see-monkey do” theory has anything to it, shouldn’t we be seeing it show up in real-world crime statistics? I would think it would start showing up somehow, somewhere, and at some point, don’t you?

Of course, one could argue that crime stats and social indicators would be in even better shape if not for media violence, but there’s just no way to prove that one way or the other. If all violent media had been censored, would the juvenile crime rate have gone down 46% instead of the 36% real decrease we’ve seen since 1995? I don’t know. Nobody can know. But I certainly hope that media critics and regulatory proponents aren’t so foolish as to suggest that the crime rate would drop to zero if we just forced everybody to watch “Mary Poppins” all day long. [In fact, I could go into a much longer rant here about the opposite argument based on catharsis, or the notion that viewing depictions of violence actually helps us purge away destructive emotions or balance out negative passions brewing within the human psyche. I’ve expounding upon that theme in this old 2006 white paper starting on pg. 27. Aristotle was the first to identify cathartic effect after watching crowd reactions to Greek tragedies, which often contained violent overtones and action.]

Another argument I sometimes hear is that the impact of violent media doesn’t show up in crime stats or other social indicators, but in other forms of bad behavior or non-violent aggression. The problem with that argument is that all of these crime and social statistics show generally encouraging declines. But I persist in my belief that — if there really was anything to such theories of causality — we would have to see to impact on at least some of these trends at some point.  Or are we just talking about things that cannot be measured, like potty-mouth language and disrespectful tones?  Well, sorry, but that’s a different concern, and while I don’t want to downplay it, it’s not one that would not likely raise the same level of concern as the fear about a connection between screen violence and real-world violence.

Anyway, regardless of who is right in this debate, I’m just happy that the world is becoming a safer place to live in!  Nonetheless, if advocates of media regulation want to continue to claim a relationship between visual depictions of violence and the real thing, they need to explain to me why reality doesn’t match up so well with their theories.

_______________________

The Supreme Court recently announced that it will review a California law regulating the sale of violently-themed video games to minors. The case under review is Schwarzenegger v. Entertainment Merchants Association. In it, the Ninth Circuit Court of Appeals struck down a California law which prohibited the sale or rental of “violent video games” to minors. I’m inclined to agree with Julie Hilden when she notes that “it seems very unlikely that the Supreme Court took this case in order to proclaim, as the Ninth Circuit panel did, that minors do indeed have First Amendment rights — rights that extend far enough to reach ‘violent’ video games.”  I hope that we’re both wrong and that the Court took the case to instead affirm the free speech rights of game creators and users (and yes, even minors), but the justices could have just left the Ninth Circuit ruling be and that would have been settled.

Anyway, let’s think this through here. What if the Supremes took the Schwarzenegger case to overturn the Ninth Circuit and to uphold the right of state governments to regulate the sale of “violent” video game content, however that’s defined. Let’s consider such a potential holding in light of two other free speech cases handed down over the past few years.

In the 2002 case Ashcroft v. Free Speech Coalition, the Court struck down provisions of the Child Pornography Prevention Act of 1996, which had attempted to criminalize computer-generated depictions of child porn.  And just a few weeks ago, in United States v. Stevens, the Court struck down a federal law that criminalized the creation or sale of videos showing animal cruelty. The law that the Court overturned was particularly concerned with “crush videos,” which, according to the Court, “feature the torture and killing of helpless animals and are said to appeal to persons with a specific sexual fetish.”

Thus, if one assumes that the Supreme Court took the Schwarzenegger case to reverse in favor of state regulators, the justices on our highest court would essentially be saying that it’s just fine and dandy to create virtual depictions of children being raped or videos of real kittens having their heads crushed by naked women in high heels, but we’ll be damned if we let a kid buy a copy of Halo 3 !

Does that make any sense? I sure can’t find the logic in it, but perhaps someone can enlighten me.  Because, honestly, even though I am as about as hard-core of a First Amendment defender as you will find, those two other cases still make me a bit queasy and really put my free speech fanaticism to the test.  By contrast, I have a very hard time believing that junior is going to be mentally damaged for life by playing a few more levels on Ninja Gaiden Sigma 2, Batman: Arkham Asylum, or X-Men Origins: Wolverine.  Indeed, I can easily imagine a day when I would let my kids (when they are older teens) take their own money and buy one of those games themselves.  But I could never imagine a day I’d want them seeing virtual kiddie porn or kitten-crushing videos.

The Supreme Court announced today that it will review a California law regulating the sale of violently-themed video games to minors. The case is Schwarzenegger v. Entertainment Merchants and I have written about it here before. This will be the first major First Amendment case regarding video game speech rights heard by our nation’s highest court. This afternoon, I issued the following press statement about the case and its importance:

“I hope the Supreme Court is taking this case to affirm the free speech rights of game creators and users, and not to overturn ten years of solid, sensible lower court decisions granting video games the same First Amendment protections as books, film, music and other forms of entertainment. Government regulation of game content is unnecessary because parents have been empowered with sophisticated video game parental controls and a highly descriptive ratings system that is widely recognized and easy to use. Lawmakers should focus their efforts on making sure parents are better aware of existing tools and ratings instead of trying to censor game content in such a plainly unconstitutional fashion. Let’s hope the Supreme Court affirms that educational approach and Ninth Circuit’s decision at the same time.”

Several reporters have already asked me if its a bad sign that the Court took the case at all and wondered if this meant that there are 5 votes for overturning the lower court decision.  It’s impossible to read the tea leaves on things like this, but I would generally agree that it’s not a good sign.  But I just don’t understand how the Supreme Court could uphold a law like this in light of all their recent Internet jurisprudence (CDA, COPA, etc) which held against the government when various “harm to minors” statutes were tested and found to be unconstitutional.  If the Supreme Court goes the opposite direction here, it will mean that our “First Amendment jurisprudential Twilight Zone” will become even more confusing and contorted. Let’s hope that’s not the case.

If this robotic girlfriend—unveiled last weekend at the AVN Adult Entertainment Expo and costing $7-9k—actually goes mainstream, I’ll bet it’s only a matter of time before we see some state lawmaker somewhere propose to ban the toys. The FCC well, no doubt, follow suit, by demanding the incorporation of parental control tools into the devices so Junior doesn’t have his way with Ms. Roxxxy (or her soon-to-be-released male counterpart, Rocky) while Mom and Dad are out at NASCAR the opera.

Laugh if you will, but if Moore’s Law holds true, such robots will become smarter, cheaper, and probably sexier as microchips continue to plummet in price and meaningful artificial intelligence becomes marketplace reality.  Move over, Roomba, Roxxxy has arrived—and she ain’t no Rosie the Robot Maid from The Jetsons! Telegraph reports that there’s a whole book about this:

In a 2007 book, “Love and Sex with Robots,” British chess player and artificial intelligence expert David Levy argues that robots will become significant sexual partners for humans, answering needs that other people are unable or unwilling to satisfy.

But the most interesting part of the telegraph article is creator Douglas Hines’s motivation:

Inspiration for the sex robot sprang from the September 11, 2001 attacks, he said, where a friend died and he vowed to store his personality forever.

This sounds an awful lot like the plot of Caprica, the new SyFi television series, a prequel set 58 years before the beginning of Battlestar Galactica, the cult phenomenon that even seduced hardened TV-refusenik like me. The show launches January 22, 2010, but the prequel came out late last year birth of the Cylons, who began as clunky, metallic-scanned robots but eventually evolve into humanoids indistinguishable from humans—and also bent on wiping out the human race. While Battlestar was set in space, Caprica is largely set in cyberspace, and depicts nightmarish realm of violence, sadism, drug use, and utterly unbridled sexuality in which teenagers run wild and ultimately produce very, very scary robots whose artificial intelligence is actually born in cyberspace.

So my serious prediction for 2010 is that, if this prequel is half as popular its sequel, it will drive discussions about online child safety heights of hysteria. And yes, in the next, say, 10 years, I think these discussions will increasingly span the rapidly disappearing line between virtual reality and virtual people like Roxxxy. In both cases, the closer we get to verisimilitude, the more people are going to freak out—the “Uncanny Valley” first described by Japanese roboticist Masahiro Mori in 1970. And, rest assured, the same people who have tried to shut down Craigslist’s “Erotic services” category, will be sure to try to shut down “robotic prostitution.” I haven’t read it yet, but Adam Thierer reminds me that David Friedman discussed these issues in Chapter 20 (“All in Your Mind”) of his 2008 book Future Imperfect: Technology and Freedom in an Uncertain World, including philosopher Robert Nozick’s “experience machine” concept from his masterpiece Anarchy, State & Utopia. (Tyler Cowen also discusses this in his new book, Create Your Own Economy).

H.L. Mencken once defined “Puritanism” as “the haunting fear that someone, somewhere, may be happy.” So perhaps ” techno-Puritanism” could be defined as “the haunting fear that someone, somewhere, may be having fun with the content, service, screen, device, toy, or mechanical orifice of their choosing.”

Don’t like it?  Don’t use it! (And yes, as these tools to become prevalent and easily accessible by children, expect that their manufacturers will build parental controls into, but of course, the ultimate parental control for an expensive device is the power of the purse—and, if Mom and Dad really do want to keep a “playmate” in the closet but away from Junior—a good-ol’ fashioned lock!)

This morning the Federal Trade Commission released its report on kids and virtual worlds.  You can read the report, entitled Virtual Worlds and Kids: Mapping the Risks, here.  (I’ve posted similar thoughts over at Terra Nova, apologies for the cross-post).

What initially strikes me about the report is the distance between how the report’s being billed and what it actually says.  The billing of the report—and thus the likely media tagline—is that the “FTC Report Finds Sexually and Violently Explicit Content in Online Virtual Worlds Accessed by Minors.”  But a more accurate statement would be “FTC Report Finds Surprisingly Little Sexually and Violently Explicit Content in Online Virtual Worlds Accessed by Minors, Especially Compared to What Minors Can Find on the Internet.”

The Commission found at least one (really? that’s all?) instance of explicitly violent OR sexual content in a significant percentage of the virtual worlds it examined—and that includes user chat, but in general it didn’t find many such instances per world.  So to be counted in the study as a virtual world that contains explicit violent or sexual content, the researchers just had to find one instance of chat in which someone said something violent or sexually oriented (which of course includes the scatalogical as well as the sexual).  The point is, it appears to me that they went looking for anything and didn’t find much.  Far from being seen as an indictment of virtual worlds as dangerous for kids, this seems to me to be quite positive for virtual worlds, especially as compared to the internet at large.  I’m relying on the following language from the report:

Despite this seemingly high statistic [the Commission found at least one instance of sexually or violently explicit content in 19 out of 27 worlds], the Commission found very little explicit content in most of the virtual worlds surveyed, when viewed by the actual incidence of such content.

And:

Of [the 14 virtual worlds open to children under 13], the Commission found at least one instance of explicit content on seven of them.  Significantly, however, with the exception of one world, Bots, all of the explicit content observed in the child-oriented worlds occurred when the Commission’s researchers visited those worlds as teen or adult registrants, not when visiting the worlds as children under age 13.

I think the study said some interesting things, and there is some strong analysis, but the reception the report will get is, I bet, far removed from what the report actually says.

The Parents Television Council (PTC) released a new report today entitled Women in Peril: A Look at TV’s Disturbing New Storyline Trend. The report argues that “by depicting violence against women with increasing frequency, or as a trivial, even humorous matter, the broadcast networks may ultimately be contributing to a desensitized atmosphere in which people view aggression and violence directed at women as normative, even acceptable,” said PTC President Tim Winter.  As evidence the report cites… Nicole Kidman.  OK, it cites more than Nicole Kidman, but the 7-page report and accompanying press release does seem to place a lot of stock in the fact that, while being questioning by a House Foreign Affairs subcommittee hearing about violence against women overseas, “Ms. Kidman conceded that Hollywood has probably contributed to violence against women by portraying them as weak sex objects, according to the Associated Press.”  I’m not sure what Ms. Kidman was doing testifying before Congress on the matter of violence against women overseas — dare I suggest some congressmen were out for another photo-op with a Hollywood celeb? — but the better question is whether Ms. Kidman’s opinion has any bearing on the question of what relationship, if any, there is between televised violence and real-world violence against women. (Incidentally, if she really feels passionately about all this, is she prepared to go back and recut some of her old scenes in “Dead Calm,” “To Die For,” and “Eyes Wide Shut“?)

But let’s not nitpick about the credentials Ms. Kidman brings to the table or whether it makes any sense for PTC to elevate her opinions to proof of theory when it comes to a supposed connection between depictions of violence against women in film or television and real world acts of violence against women. PTC, however, suggests that’s exactly what is going on today. They allude to a few lab studies which are of the “monkey see, monkey do” variety — where the results of artificial lab experiments are used to claim that watching depictions of violence will turn us all into killing machines, rapists, robbers, or just plain ol’ desensitized thugs.

There’s just one problem with such studies, and the PTC report:  Reality.  Whatever lab experiments might suggest, the evidence of a link between televised media violence and the real-world equivalent just does not show up in the data. The FBI produces ongoing Crime in the United States reports that document violent crimes trends. Here’s what the data tells us about overall violent crime, forcible rape, and juvenile violent crime rates over the past two decades: They have all fallen.  Perhaps most impressively, the juvenile crime rate has fallen an astonishing 36% since 1995.

Now, let me be perfectly clear about something.  When analyzing such things it is vitally important to recall one of the first rules of statistical analysis: correlation does not necessarily equal causation. This works in both directions. Even if an increase in real-world violence was closely tracking depictions of violence on television or in video games, it wouldn’t necessarily mean there is a connection. But it would also be wrong to state that, on its own, an inverse correlation (with the trends moving in opposite directions) meant that there was absolutely no connection between these things.

At the margin, I believe that some media can have negative impacts on some people. Certainly, in heavy enough doses, watching non-stop depictions of sex or violence probably would have some sort of negative effect on some people — loss of sleep, if nothing else. Perhaps more.

Then again, I just cannot entirely dismiss the real-world evidence being so starkly at odds with the “monkey see, monkey do” theories bandied about by PTC and some researchers or regulatory proponents. At a minimum, the real-world evidence should at least call into question the “world-is-going-to-hell” sort of generalizations made by proponents of increased media regulation, who all too often make casual inferences about the relationship between media exposure and various social indicators. Such a causal relationship is even more dubious today since all Americans, especially youngsters, are surrounded by a much wider variety of media than ever before. Even though television viewing has gone down slightly in recent years, it has been due to the rise of other media substitutes that command the attention of children, including the Internet, cell phones and video games. Overall, therefore, it appears that children are “consuming” as much, if not more, media than ever before. One would think that if depictions of violence in media really were leading to increased aggression among youth it would start showing up in some of these indicators at some point. But that’s just not occurring. [If you’re interested, I’ve discussed all these issues at much greater detail here, here, here, and here.]

Another argument I often here is: ‘Well, the numbers would be even better if not for media violence!’  But there’s just no way to prove that one way or the other. Would the juvenile crime rate be down 46% instead of the 36% decrease we’ve actually since 1995?  I don’t know. Nobody can know. But I certainly hope that media critics and regulatory proponents aren’t so foolish as to suggest that the crime rate would drop to zero if we just forced everybody to watch “Mary Poppins” all day long.

Finally, let’s assume that the PTC is right and that depictions of violence against women are on the rise on TV. I can actually accept that statement. With all the forensic science shows and crime dramas on TV today, it’s clear that some of the plot lines are going to involve people dying in some fashion and many of those people will be women. And yes, some of the depictions will get pretty gritty. “Fringe” and the various “CSI” shows are clearly showing things we didn’t see on “Quincy” back in the day. (Bring back Jack Klugman! He was awesome.)

But, hey, culture has changed.  Envelopes have been pushed a bit.  A little less is left to the imagination.  But most of us can live with that fact.  Indeed, many of us actually enjoy that fact!  And for those who do not share that worldview or who have heightened sensitivities about depictions of violence in TV shows, movies, or games, I would like to tell them that I really do understand and appreciate where they are coming from.

Yet, there are many other ways you can deal with that without forcing us all to forgo content we might enjoy consuming. And, you guessed it, this is where I remind the world for the umpteenth time that I have written a whole book about parental control tools and methods! [The shameless self-promotion never ends here, folks!]  In fact, part of the reason I have invested so much time in that project — and my ongoing efforts to get companies and other third parties to expand the range of tools, ratings, and other information that we have access to — is because I genuinely want to make sure that those individuals and families who have different needs and values than I have the ability to craft their own “household media standard.”   I want each family to be empowered to make media content decisions for themselves such that they can find the media content they want and discard all the rest. Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.

I know that some critics including the PTC feel that the tools aren’t good enough, but I just don’t buy it. Sure, there’s always some room for improvement regarding parental control tools and rating systems, but the existing panoply of tools and methods offer families unprecedented control over their media consumption habits. And that includes tools and methods which enable them to find enriching and educational content, which we have more of than ever before.

I understand PTC doesn’t share my worldview on these matters.  But the difference between us is that they want to take something away from me (the right to watch certain types of content) while I want to give something to them (the ability to block that which they find distasteful).  To be fair, however, their report did not rush to the regulatory solution, even though they did call for more hearings and they warn that:

if the television industry is unwilling or unable to take serious steps to reduce or tone down such graphic images, then we will urge the Congress and the FCC, by virtue of their regulatory authority over the public airwaves, to step in and take action.

The problem is, I don’t think PTC will ever rest until all this content is removed from the airwaves altogether, even if millions of Americans actually enjoy that programming.  Again, the better solution is for PTC to work with others to improve the tools and methods available to families to more effectively make this decision for themselves.  I certainly don’t want others making these determinations for my wife and me and our two kids.  We’ve got the job handled, thank you very much.

I’ve been meaning to say something about this new paper by Renee Newman Knake of Michigan State University College of Law, which calls for a new paradigm to analyze, and then likely regulate, video game content. Knake’s paper is entitled, “From Research Conclusions to Real Change: Understanding the First Amendment’s (Non)Response to Negative Effects of Mass Media on Children by Looking to the Example of Violent Video Game Regulations.” In it, she proposes to extend an emerging legal philosophy known as “ecogenerism” to the field of video games and the First Amendment treatment thereof. “Ecogenerism” is largely the creation of Barbara Bennett Woodhouse and the theory argues that we should apply lessons or legal frameworks from the field of environmental law to the area of media and children. “Under an ecogenerist model,” states Knake, “media harm decisions should prioritize concern about the level of ‘toxic’ media which children are exposed over free speech interests.”  Simply stated, we should treat “toxic media” like toxic chemicals.

There have been other efforts to get courts to relax the legal scrutiny applied to video game content from “strict” to something more relaxed or intermediate in character. For example, there is the “violence as obscenity” approach proposed by Kevin Saunders, who, like Knake, is also with the Michigan State University College of Law. But whereas Saunders has proposed applying an adjacent legal theory or framework (obscenity law) to legal analysis of the constitutionality of regulation of video game content, Woodhouse and now Knake propose a much broader, and more radical, reformulation of First Amendment law along the lines of entirely different body of jurisprudence — again, environment law and regulation.

Of course, this is nuts. The notion that words or images are as “toxic” as chemicals is preposterous, and yet that is exactly what Knake and Woodhouse want us to accept. We can determine with a great deal of certainly the physiological impact of too much mercury or lead on the development of the human brain or body. Generally speaking, we know what dose would kill or deform. The same cannot possibly be said of media, and the very allusion to toxic materials or chemicals is ludicrous to begin with since words and images have never directly killed anyone. EVER!

Another problem with the analogy: Video game content, like many other forms of content, can also have profound societal value even when it is of a sexual or violent nature.  Even heavy “doses” of such media can be entirely acceptable (even beneficial) for some even if they are not for others. The same would not be said of toxic chemicals. Too much of a dose would be lethal to all.  In his latest “Law of the Game on Joystiq” column, Mark Methenitis does a nice job picking apart this paper in more detail and he really nails what’s wrong with this analogy between games and harmful chemicals, dangerous diseases, or potential deadly weapons:

A video game is not meningitis or AIDS, where occasional, isolated, or incidental exposure can lead to serious injury or death. Nor is a video game anything like a handgun, where exposure can lead to someone being seriously wounded, maimed or killed. Spending an hour with Halo or Borderlands at a friend’s house isn’t even in the same galaxy of potential harm as a kid having a gun or a serious illness at school.

Indeed, he rightly points out that many of the video games most likely to be regulated under an ecogenerist approach, like “Grand Theft Auto” or “Metal Gear Solid 4,”  have “a significant storyline with the same kind of political statement as the average Scorsese film.” Thus, he notes, “these [ecogenerist] restrictions would be impacting political speech, which is the most sacred and the most protected form of speech under the First Amendment.”  He also takes the authors of these theories to task for failing to seriously investigate the content they seek to censor.  “It is this lack of a true knowledge of the content that continually appears in so many arguments for video game regulation,” he notes.  Quite right.

Finally, we have better ways of dealing with objectionable media content, including video games, than to ban them outright or have regulators curtail content they don’t like. There is a rich mosaic of parental control tools and methods available to parents and guardians to deal with content they find unacceptable, and video game ratings and parental control tools are among the very best of any of those tools and rating systems.  As I have pointed out here far too many times to mention, we are at the stage now where our traditional reliance upon “community standards” regulation can give way to a “household standard” approach when it comes to “regulating” content.  Here’s how I put it in a recent paper I presented at Oxford University:

If it is the case that families now have the ability to effectively tailor media consumption and communications choices to their own preferences—that is, to craft their own “household standard”—then the regulatory equation can and should change.  Regulation can no longer be premised on the supposed helplessness of households to deal with content flows if families have been empowered and educated to make content determinations for themselves.  Luckily, that is the world we increasingly live in today. Parents have more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children. Going forward, our goal should be to ensure that parents or guardians have (1) the information necessary to make informed decisions and (2) the tools and methods necessary to act upon that information.  Optimally, those tools and methods would give them the ability to not only block objectionable materials, but also to more easily find content they feel is appropriate for their families.

And, luckily, that’s the direction most free speech jurisprudence has been turning in the U.S. in recent years. It’s the right approach for a nation that values freedom of speech and expression.  The ecogenerist approach, by contrast, would open the floodgates to unprecedented censorship of speech in this country.  It would leave lawmakers and regulators free to play the role of national nanny and censor any sort of content they found personally objectionable by equating it with toxic chemicals or dangerous weapons.  That’s lunacy and it must be rejected as antithetical to our nation’s rich First Amendment history.

[Below is an old slide show presentation I did at Penn State University about “Video Games & Public Policy.” Thought it made sense to repost it here.]

Me, as a druid who could turn into my daughter’s pet bear

This is a story about Mary and the Bear. And the FTC.  And a paper entitled  Virtual Parentalism.

By way of background, Washington & Lee University Law School (where I teach) hosted a symposium entitled Protecting Virtual Playgrounds: Children, Law, and Play Online about a year ago.  At that time, it seemed pretty likely that Congress would soon begin thinking about regulating virtual worlds in an attempt to protect children.  Sure enough, as TLF’s Adam Thierer notes here in a Metanomics segment, the FTC was asked in an appropriations bill to produce a report concerning children’s access to adult materials in virtual worlds.  We got lucky—the papers produced by the symposiasts were ready in time to influence (one always hopes) the debate.

The motivation for the paper was simple: I love playing virtual worlds with my daughters, who are avid explorers of the medium.   I wouldn’t consider letting them do this without pretty serious parental supervision, so instead I went with them, joining them in their virtual world adventures.  Here’s me talking about it: How Parents can Connect with their Children in Virtual Worlds. http://law.wlu.edu/global/mediafiles/player.swf

As I began to explore in greater depth, however, it became clear that parents’ involvement in virtual worlds is not a given.  The trend is toward segregating children and adults into separate virtual worlds.  Thus, my paper, which I have posted for your convenience on SSRN here (Virtual Parentalism), works out some of the dangers replacing parents with parentalist regulation in virtual worlds. It makes several broad points, which I hope to discuss at greater length over a series of blog posts here.  The first, and most important, is that there is simply no substitute for parental involvement in children’s activities in virtual worlds.  “Digital daycare,” or farming parental duties out to companies that run such worlds, isn’t a satisfactory solution—the companies certainly don’t want to be deemed in loco parentis, and the parents don’t want that either.  But the current regulatory climate seems to be tipping—unfortunately—toward imposing mandates on companies (or, worse, imposing criminal liability on unwitting adults).  My concern is that this approach will not increase child protection significantly, but will instead cause responsible adults to segregate themselves from children.  The second broad point is that, as on the Internet broadly, although Congress may not limit discourse online to those conversations fit for children, parental self-help facilitated by industry can both actually help children and help fend off state regulation.

I really enjoyed my Second Life appearance on “Government’s Place in Virtual Worlds and Online Communities,” which was hosted by Metanomics.  You can watch the entire segment on the Metanomics site.  But the folks at Metanomics have also posted 6 clips from the show at YouTube that highlight some of the topics we discussed.  Here’s the list of clips and the videos:

Part 1: Are the Feds about to Regulate Second Life & Virtual Worlds?

Part 2: Global Communities, Local Values, Internet Governance & The Dangers of “Harmonization”

Part 3:  Virtual Child Pornography & Our Virtual Reality Future

Part 4: Why Speech Controls & Privacy Regulations are Two Sides of the Same Coin

Part 5: Privacy, Advertising, User Empowerment, and the “Free” Internet

Part 6: Virtual World Self-Governance and a “Utopia of Utopias”

Finally, here’s some of the background material I referenced during the show:

• “Parental Controls and Online Child Protection: A Survey of Tools & Methods [VERSION 4.0]“
• “Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics’“, Inside ALEC, July 2009.
• “Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” PFF Progress on Point 16.13, July 8, 2009
• “Cyberbullying Legislation:  Why Education is Preferable to Regulation,” by Berin Szoka and Adam Thierer, PFF Progress on Point 16.12, June 19, 2009
• “COPPA 2.0: The New Battle over Privacy, Age Verification, Online Safety & Free Speech,” by Berin Szoka and Adam Thierer, PFF Progress on Point 16.11, May 21, 2009
• Web 2.0, Section 230, and Nozick’s “Utopia of Utopias”, Jan. 13, 2009, Tech Liberation Front