As no doubt any close watcher of the video gaming industry has heard by now, the U.S. Supreme Court has held up the rulings of all the lower courts nullifying California Assembly Bill 1179. It was a decisive ruling, with seven judges ruling for the Entertainment Merchants Association (EMA) and only two dissenting. Considering that this Supreme Court is generally considered to be the one of the most socially conservative in many decades, it's encouraging that so many of the judges were open to the arguments presented by the lawyers representing Entertainment Software Association (ESA).
"History may well remember Yee not as a public servant of the state of California for many years, but as the face for a well meaning but foolishly thought-out legislation that cost state and federal governments tens of millions of dollars."
I and anyone with a vested interest in the gaming industry felt relief when the decision was made final, but I can't honestly say I was worried. The video game industry had won several battles leading up until this point – none of the eight laws designed to resemble Bill 1179 had ever gone into effect, as each was successfully challenged and struck down. Fortunately, the ESA was prepared at every turn, winning every decision and getting the states to reimburse their legal fees for the trouble. If the Supreme Court overturned those decisions, then those victories would be for naught, but once again the ESA's representatives stepped up their game and presented an convincing argument.
There's something I want to get straight about Bill 1179 that I feel some mainstream media sources may have missed the point of. This law and others like it would have put “M” rated video games in the same category as pornography. Besides the whole legally tenuous grounds of basing such legal matters on a rating from the ESRB (which is not a government agency), it raises the serious question of why should games be treated any differently from any other medium? Movies are often allowed to “cheat” by releasing unrated versions on Blu-ray and DVD, putting in content the censors wouldn't allow them in the “R” release, but no retail video game would ever get away with something similar. How could a law exclude movies like Hostel, books like American Psycho and comics like Preacher with their violent content but instead target video games exclusively? It's a shaky basis upon which to build a legal argument, and state attorneys have no definitive study showing exposure to violent video games is damaging to minors (or at least more damaging than any other medium).
Another misinterpretation that some might have about this ruling is that the gaming industry will target children with violent titles. Quite to the contrary, this just means business as usual for the gaming industry, with a variety of games being made for a plethora of different tastes. I hate this notion that somehow mature rated games are marketed directly at children or are intended for children as a primary audience. So long as there is entertainment which is enticing and “cool” to children, they'll work towards getting their hands on it; doesn't matter if it's a song with explicit lyrics, an 'R' rated movie or an 'M' rated game. It's the byproduct of living in a free society that inevitably materials designed for the consumption of adults will find their way into the hands of minors – other solutions need to be found than making their sale illegal to minors, though I understand the reaction that the “baby boomers” might have to the unfamiliar medium of interactive entertainment.
The origins of the California Violent Game Law are generational as much as anything – I'd venture to guess that the legislators and main proponents of these “Games as Porn” laws are not fans of video games, nor even all that familiar with their workings or contents. It's not too surprising, since video games have only existed for a few short decades and the generation now coming of age is the first one to be raised with video games; for a lot of people over the age of 40, video games are completely alien. This push-pull with new forms of expression has existed as long as creative mediums have. Novels, poetry, comics, movies, television, rock n' roll and rap music have all had to endure the scrutiny of the establishment. With as much as 97 percent of American kids playing video games regularly, societal attitudes changing is a matter of when, not if.
The deluge of such attention on making violent video games illegal to sell to minors was started in full with the Grand Theft Auto: San Andreas “Hot Coffee” scandal. After California representative Leland Yee pointed towards the GTA mod, increasing media scrutiny rained down upon the game and the industry in general. For reasons that still escape me, the PR response from Rockstar at the time was to blame the people that created the “Hot Coffee” mod, and when it was confirmed that the content was indeed on the game disc and created by Rockstar, it led to reclassification of the game as “AO,” a recall of all copies on store shelves and a black eye for the gaming industry.
Spurred by that summer of intrigue, Rep. Yee pushed for and got the legislation in question signed by then Governor Arnold Schwarzenegger. Now I have no doubt that Yee, who has a Ph.D. in Child Psychology, was well intentioned in his attempts to keep violent content away from kids. However, Yee's legacy may very well be defined the same way as Fredric Wertham, a well intentioned psychiatrist who authored Seduction of the Innocent, a book that argued that comics were a corrupting young people towards violence and sexual deviance. Wertham did many things in his life, but his part that led to the Congressional hearings on comic books and the rise of the Comics Code censoring authority is all most people remember of him, and it's usually a bitter memory to most fans of comics. Yee faces a similar fate: history may well remember him not as a public servant of the state of California for many years, but as the face for a well meaning but foolishly thought-out legislation that cost state and federal governments tens of millions of dollars to fruitlessly attempt to defend.
I would invite Yee, if he doesn't want to be viewed as the boogeyman of video games, to work with the gaming industry on educating parents about the ESRB ratings system, instead of working to criminalize games (which he sadly still seems hellbent on doing). While the game industry has made great strides in informing the general public just what it's various ratings mean, that doesn't mean it can't be improved. While there's no law on the books about selling “M” rated titles to minors, he can take solace in the fact that that there is heavy self regulation of selling video games to those under the appropriate age. Almost every major retailer checks IDs when selling “M” rated content, and studies have shown that enforcement is higher for video games than it is for movies or music; in fact an FTC study released in April found video game retailers prevented minors from purchasing mature-rated video games 87 percent of the time. As ESRB president Patricia Vance pointedly said, “It's made clear that the video game industry effectively empowers parents to be the ones to decide which games are right for their children.”
Despite those realities, certain parties will continue to argue against video games for a variety of reasons, most of them saying they're fighting the fight for “children and families” or something similar. Indeed the work of the gatekeepers of the industry is ongoing, and the price of this victory is eternal vigilance. Still, I can't imagine a scenario where the industry will ever have to face such a directed legal assault of this caliber ever again – the complete failure of this legislation and other items like it on every single level of the American judicial system should be proper discouragement to any erstwhile legislator.
Squelching this law did far more to protect creators of content than it ever would to protect the well-being of minors. There would be an almost inevitable cooling effect that such a law would have on the mature games market – if retailers could be criminally punished for selling “M” rated video games to kids, forcing them to pay fines up to $1,000, their enthusiasm for carrying such products would diminish greatly. During a time when AAA games are already facing issues over budget and pricing, we can all be thankful that this extra burden was avoided.
Video games are protected free speech... just knowing that, having it on the legal records of the U.S. Supreme Court is uplifting in a way. If this decision had gone against the gaming industry, it would have implied that video games are ONLY for children; this ruling is a tacit admission that they are not. So it's a landmark decision for the continued maturity of the gaming industry as well as a defense of First Amendment rights and what it means for all Americans. No bones about it gamers, one of the most important things that video games have ever done was defend themselves in this matter – offer your thanks to the ESA and play a game tonight knowing it's a protected means of expression. I know I will.
