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.

Today, it was my great privilege to guest lecture at Princeton University’s Center for Information Technology Policy. Under the leadership of Ed Felten, who also runs the excellent “Freedom to Tinker” blog, the CITP has quickly become one of America’s premier institutions in the field of IT policy matters. David Robinson, who some of you will remember from his days as an editor at The American, serves as associate director of the CITP program and was kind enough to invite me to speak.  And our own Tim Lee is currently studying there as well.  I wish I was smart enough to get into that program!

The topic of my talk was “The Future of the First Amendment in an Age of Technological Convergence” and I used the opportunity to create a narrated video of this presentation, which I have made to several other groups through the years. In this presentation, I talk about “America’s First Amendment Twilight Zone,” which refers to the fact that identical words and images are being regulated in completely different ways today depending on the mode of transmission. This illogical and unfair situation could eventually threaten the Internet, video games, and all new media with many of the misguided regulations that have long been imposed on broadcast television and radio operators. In my presentation, which you can watch below, I make the case for changing our First Amendment regime to ensure “bit equality”; all speech and media platforms should be accorded the gold standard of First Amendment protection.

The presentation is based upon several other essays, court filings, and law review articles I have written on the topic, including:

• “Why Regulate Broadcasting: Toward a Consistent First Amendment Standard for the Information Age,” by Adam Thierer, 7/10/07.
• “FCC v. Fox and the Future of the First Amendment in the Information Age,” by Adam Thierer, 1/20/09.
• Joint Amicus Brief of The Center for Democracy & Technology and The Progress & Freedom Foundation, U.S. Supreme Court in the matter of FCC v. Fox Television Stations, by Adam Thierer, John B. Morris, Jr., and Sophia Cope, August 8, 2008

Do we have any Australian TLF readers out there? If so, I’d be interested in their input about how well video game censorship works down under.

I follow Australian content regulation via the wonderful “Somebody Think of the Children!” blog, operated by Michael Meloni of Brisbane, Australia. (Mike, if you’re listening, you have at least one big fan here in the U.S. and thank you for keeping the rest of us up-to-speed about censorship developments on the other side of the globe!) This week, Mike reports that another video game (“F.E.A.R. 2”) was refused classification by the Australian government’s Classification Board. Apparently, the “refused classification” designation is the equivalent of a ban in Australia. And F.E.A.R. 2 is the fifth game to receive that designation in 2008. (Other games that have been censored, or subject to some sort of political investigation or pressure, are inventoried at the “Refused Classification.com” website.)

First, let me just say that this again reminds me how lucky we are to have strong free speech protections here in the United States thanks to the First Amendment of our Constitution. I do so much bitching about efforts to regulate speech and media content (especially video games) that I sometimes fail to step back and appreciate how fortunate we are here in the U.S. to not have to worry about an official government ratings body overseeing all game releases. This really hit home for me when I read that “Fallout 3” was one of the 5 games banned this year. It’s a brilliant game and I just can believe it would be censored such that the Australian public could not play the same version of it that I can.

Second, I’m wondering how well these bans work in Australia. A big part of my research on speech regulation is focused on the practicality of censorship in the modern Information Age. [See my “End of Censorship” essay.] Thus — taking off my advocate hat and putting on my academic hat — I would be very interested in hearing from Australians about how effective these regulatory schemes are in practice. Can you still get games from overseas and play them on consoles and PCs in Australia? Do you download uncensored versions (either legally or illegally)? Does the government take steps to stem the flow of unregulated content? Or, are most citizens willing to just played the censored version of games that the Australian government eventually authorizes? Have there been academic studies done on the practical side of content censorship in Australia?

You get the idea. Any input would be greatly appreciated.

[Note: I have also been following the Australian government’s big recent push for centralized Internet filtering. Would be interested in input as that as well from Australians citizens.]