California has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional. [Game Politics.com has complete coverage, and there’s more over at Ars and USA Today’s Game Hunters blog.]
Brief background: In late February, the Ninth Circuit upheld an August 2007 ruling by a California district court decision in the case of
Video Software Dealers Association v. Schwarzenegger [decision here], which struck down a California law, passed in October 2005 (A.B.1179), which would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law. After being challenged by the Video Software Dealers Association and the Entertainment Software Association and, the district court blocked the law arguing that it violated both the First and Fourteenth Amendments to the federal Constitution.
California’s decision to appeal the law up to the Supreme Court [petition is here] sets up a potential historic First Amendment decision (if they Court agrees to take the case, that is). California is asking the Court to consider two questions:
1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?
2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?
California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century’s worth of First Amendment jurisprudence.
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As anyone who has spent time searching for comments on the FCC’s website can tell you, the agency doesn’t exactly have the most user-friendly website. In the interest of making it easier for others to read the comments that came in last week in the agency’s “Child Safe Viewing Act” Notice of Inquiry, I have compiled all the major comments (those over 3 or 4 pages) and provided links to them below the fold.
Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” I filed 150+ pages worth of comments in this matter last week, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.
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Today I filed comments with the Federal Communications Commission (FCC) in its proceeding examining the marketplace for “advanced blocking technologies.” This proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.” My colleagues will no doubt laugh about the fact that I have dropped an absurd 150 pages worth of comments on the FCC in this matter, but I had a lot to say on this topic! Parental controls, child safety, and free speech issues have been the focus of much of my research agenda over the past 10 years.
In my filing, I argue that the FCC should tread carefully in this matter since the agency has no authority over most of the media platforms and technologies described in the Commission’s recent Notice of Inquiry. Moreover, any related mandates or regulatory actions in in this area could diminish future innovation in this field and would violate the First Amendment rights of media creators and consumers alike. The other major conclusions of my filing are as follows:
- There exists an unprecedented abundance of parental control tools to help parents decide what constitutes acceptable media content in their homes and in the lives of their children.
- There is a trade-off between complexity and convenience for both tools and ratings, and no parental control tool is completely foolproof.
- Most homes have no need for parental control technologies because parents rely on other methods or there are no children in the home.
- The role of household media rules and methods is underappreciated and those rules have an important bearing on this debate.
- Parental control technologies work best in combination with educational efforts and parental involvement.
- The search for technological silver-bullets and “universal” solutions represent a quixotic, Holy Grail-like quest and it will destroy innovation in this marketplace.
- Enforcement of “household standards” made possible through use of parental controls and other methods negates the need for “community standards”-based content regulation.
My entire filing can be found here and down below in a Scribd reader. All comments in the matter are due tomorrow and then reply comments are due on May 18th.
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This week, the Ninth Circuit Court of Appeals struck down a California video game statute as unconstitutional, holding that it violated both the First and Fourteenth Amendments to the federal Constitution. The California law, which passed in October 2005 (A.B.1179), would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law. It was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association and, in August of 2007, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. The Ninth Circuit heard the state’s challenge to the injunction last year and handed down it’s decision this week [decision here] holding the statute unconstitutional. The key passage:
We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York
, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.
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The Entertainment Consumers Association (ECA) is a group that does some good things to mobilize gamers to fight misguided regulation of video games. I greatly appreciate their tireless efforts to fight stereotypes and myths about games and gamers, and to specifically counter the hysteria about video games that we sometimes see in the press, and definitely see in political circles on a regular basis. They’re a great ally in the fight for freedom of speech and artistic expression in this field.
That’s why I was so sorry to see the ECA launch a new campaign that encourages gamers to petition their congressional leaders and encourage them to regulate the high-tech economy more and waste more taxpayer dollars on inefficient universal service programs and subsidies:
Net Neutrality and Universal Broadband are not only great for America; they allow us to play the games we want at high speeds! … ECA believes that Universal Broadband and Net Neutrality are vital for the development of the national infrastructure, and believes that this bill is an important opportunity to let Congress know that you agree.
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Many folks are discussing Christopher Ferguson’s latest paper on “The School Shooting / Violent Video Game Link: Causal Relationship or Moral Panic?” And with good reason. It’s an important look at how “moral panics” develop in modern society, in this case around video games. [Moral panics is a subject I have written on at length here many times
before. Alice Marwick’s brilliant article on “technopanics” is also worth reading in this regard].
As I’ve noted here before, Ferguson has penned many important articles raising questions about the claims made by some other psychologists (and politicians) that there is causal relationship between exposure to violent video games and youth aggression. Ferguson has shown there are reasons to be skeptical of such claims — both methodologically and practically-speaking. More on that down below.
In his latest piece, however, Ferguson, a professor at Texas A&M’s Department of Behavioral, Applied Sciences and Criminal Justice, is more fully developing moral panic theory, which he describes as follows: “A moral panic occurs when a segment of society believes that the behavior or moral choices of others within that society poses a significant risk to the society as a whole.” To illustrate the various forces at work that drive moral panics, Ferguson uses this “Moral Panic Wheel”:
![Moral Panic Wheel [Ferguson]](http://farm4.static.flickr.com/3080/3219688961_6d255b309f.jpg)
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My Kid is the Man of Steel! ... in his mind.
Regular readers will recall my great interest in video games and the public policy debates surrounding efforts to regulate “violent” games in particular. One thing I bring up in almost every essay I write on this subject is how fears about kids and video games are almost always overblown and that kids can typically separate fantasy from reality. Nonetheless, kids have active imaginations and adults sometimes fear that which they cannot understand or appreciate. Friendly mentoring and open-minding parenting can go a long way to encouraging kids to make smart choices and understand where to draw lines, whereas efforts to demonize video games and youth culture almost always backfire.
Anyway, what got me thinking about all this again was an entertaining column in today’s
Washington Post by Ron Stanley (“Who Needs a TV to Play Video Games“), which describes the author’s experiences with his nephew when they played out video game-like scenarios using traditional toys and household items. It’s a wonderful piece worth reading in its entirety, but here’s the key takeaway that I’d like to discuss:
There was no evidence that television and video games had stifled the kids’ creativity. Nor was there any evidence that technology had made them smarter than earlier generations. They simply had a different frame of reference, one that included video games and computers as well as ponies, pet stores and sword fights. Children play with the tools at hand, and they’re great at thinking metaphorically — at imagining that a landspeeder is a sentient robot or that a stick is a gun or that salt-and-pepper shakers are a bride and groom or that a card table is a horse’s stable.
They’re also geniuses at figuring out simple mechanics. My 6-year-old nephew had to explain to me that miniature low-rider cars don’t roll very well on carpet and will flip over more than if racing on hardwood floors. Novice that I was, I was choosing cars that looked the coolest. And they are geniuses at intuiting rules and systems, and at re-creating these rules and systems in their own play. Children who play lots of card games will invent their own card games. Children who play lots of board games will invent their own board games. And children who play lots of video games will invent their own video-game-like games when they don’t have access to the game controllers.
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My good friend Jim Dunstan will be speaking to the “Games Gateway” meet-up group for the U.S. Mid-Atlantic Region on Dec. 2 at 6:30 pm about the legal issues affecting video game developers.
Did you know that enabling gamers to talk via voice while in a virtual world may subject you to FCC regulations? Or that the Child Online Privacy Protection Act under the FTC must be followed for game sites that knowingly include children under the age of 13? Whether you are a developer of console, PC or online games and worlds, there are legal issues which you need to keep in mind. Many of them are surprising, so join us to hear James Dunstan, partner at Garvey Schubert and Barer, an expert in video game and telecommunications law, discuss the ins and outs of interesting legal issues, what you as a game developer need to keep in mind, and steps to take as you develop your next game.
Besides being a space/Internet/communications lawyer (my alter ego!), Jim’s a video game programmer himself and has spent years advising video game clients. RSVP here.
A new study (which is actually based on an old study) by Dr. Craig Anderson of Iowa State University and two other researchers is making news today because it suggests a link between violent video games and real-world aggression. I have written extensively about such studies here in the past, and have included a list of relevant links down below. But let me just use the opportunity to restate the fundamental problem with the way the press reports these things.
- First, the press typically accepts the assertion made by authors of studies like these that the social “science” is unanimous in support of such a link between exposure to violent video games and real-world aggression. there is another side the story, but the press usually doesn’t report on it.
- Second, reporters almost always fail to ask about how the researchers define “violent” games and the resulting “aggression” found in these studies.
- Third, reporters almost never ask about how strong the correlation is or, more importantly, what other variables might have had an influence on the the subjects who were studied. (For example, did they factor in real violence in the home or at school?)
- Finally, the reporters almost never query the researchers about the biases they bring to the task of studying this issue (namely, do these researchers have strong feelings about the content in the games they review such that they think they should be regulated in some fashion?).
Luckily, other social researchers are willing to point out these deficiencies. (See, for example, my reviews of the recent books by Drs. Kutner & Olson as well as Dr. Kourosh Dini.) With reference to the new study reported in the press today, Texas A&M researcher Dr. Christopher Ferguson has challenged the study on many of the grounds I listed above. Specifically, in a letter to the journal (Pediatrics) in which the Anderson study appeared, Dr. Ferguson argues:
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GamePolitics.com reports that there are strong signs the protracted legal battle over video game regulation in California might soon be headed to the Supreme Court. The ongoing battle deals with a California law passed in October 2005 (A.B.1179), which would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.
The law was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association. In August of last year, a district court decision in the case of
Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. And today in Sacramento, a 3-judge panel of the 9th U.S. Circuit Court of Appeals held a hearing in to hear additional arguments about the law. The San Jose Mercury News reports that judges seemed skeptical about the State’s effort to overturn the lower court ruling and get the law enforced:
While the 9th Circuit judges did lend some support to the state, they were generally skeptical the law can survive. “What you are asking us to do is go where no one has gone before,” Judge Consuelo Callahan said to the state’s lawyer. “Admittedly, they are disgusting. But aren’t you just trying to be the thought police?”
The judges also realize that every other state or circuit court that has considered the constitutionality of similar video games laws has found them unconstitutional. As I noted in my piece last year on the California law, the current legal score is “Gamers 11, Censors 0.” If the Ninth Circuit does keep the injunction in place and California appeals the law up to the Supreme Court as some predict, we could be in for a historic First Amendemt case, and the first to deal with video game speech. Stay tuned!
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