Psychochild's Blog

A developer's musings on game development and writing.

27 June, 2011

Games are protected expression!
Filed under: — Psychochild @ 11:56 AM

The good news today was that the U.S. Supreme Court overturned the California video game law that restricted sales of “violent” video games to minors, known as “Brown vs. EMA” (previously “Schwarzenegger vs. EMA” before the change of governor in California). The upshot is that the highest court has said that computer games enjoy the same protected status as other forms of expression such as movies and books.

Hooray!

I’m overjoyed to hear this on many levels. I’m a game developer first and foremost. I’m a resident of California, so it’s nice that the state got put in its place when trying to regulate. I’ve been arguing in support of legitimacy for games for a while for this very reason. (Could you imagine if this ruling had happened, say, 15 years ago? Might have been a much different prevailing opinion.)

Of course, just last weekend President Obama was criticizing video games in an off-handed comment while the courts were deciding on the issue. But, this shows that there is still a lot of thought along the lines of “video games = bad, books = good” in the government, even from a president as relatively “young and hip” as Obama.

The Terra Nova blog has a short analysis of the ruling. You can also find a lot of information about the different filings on the SCOTUS blog on the case. Particularly interesting to see who filed briefs in support of the state and who filed against the law. There’s also a division between different states supporting and against the law you can see by who filed briefs. I find it particularly interesting that Scalia wrote the majority opinion and tends to be one of the more conservative of the justices and is self-described as “pro-family”.

Of course, his is a major victory but it doesn’t mean everything is settled. I’m sure we’ll see other states try to

What do you think? Major victory, or just the beginning of the rest of the struggle?


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31 Comments »

  1. It’s about time. The dissenting opinion by Thomas is interesting, though:

    http://www.gamasutra.com/view/news/35471/Supreme_Court_Decision_The_Dissenters_Side.php

    This is the money quote for me:

    “The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children. The Puritan tradition in New England laid the foundation of American parental authority and duty.”

    Y’know, if that’s the case, why is the State involved at all? (Not only in this but in other parental responsibilities, for that matter.) And really, if that’s where he’s coming from, why not agree that games qualify as free speech and tell parents to do their job?

    Speaking as a conservative, both politically and socially, I applaud this common sense decision. Does that mean I like M rated games? Nope, can’t stand ‘em, or R rated movies, for that matter, but I strongly resist letting the State regulate these things, and I will not argue for them to restrict said games just because I find they run contrary to my preferences and how I raise *my* children.

    Comment by Tesh — 27 June, 2011 @ 1:45 PM

  2. As a European it’s fascinating. On the one hand the side the individual liberty seems to be the most important thing in the US. Goverment has to be as small as possible, parents can teach children all on his own, everybody is allowed to own all sorts of weapons, if you’re ill and out of money: though luck, regulating industries is wrong, etc.

    And at the same time you seriously consider regulating media to ‘protect’ children. Oh, and if you are suspected of terrorism by some government official they can just lock you up. Just like that and indefinitely if they want.

    The ‘you’ is directed at all US citizens, not at *you* of course ;)

    Comment by Nils — 27 June, 2011 @ 2:55 PM

  3. Nils, you’re seeing the competition of two major ideologies there. To some, liberty is the goal. To some, statism is the goal. There’s natural tension there, but both groups exist in the ‘States. Don’t mistake the two groups as being the same people.

    Comment by Tesh — 27 June, 2011 @ 3:03 PM

  4. I know that Tesh. But I wonder why you don’t come together. It sometimes seems you balance things by mixing extremes instead of finding one middle ground.

    Comment by Nils — 27 June, 2011 @ 3:19 PM

  5. I don’t think these ideologies are quite so different as Tesh makes it seem. Some politicians believe in individual liberty until you’re doing something they consider “immoral” but not technically illegal (homosexual relationships, using media to promote “corrupting messages”, etc.) Other politicians believe in the sacrosanct freedoms (of speech/expression, of religion, etc.) from the U.S. Bill of Rights until they can score political points for attacking something unpopular (“You must vote for me to stop this menace! Think of the children!”)

    What a politician says and what they do tend not to be quite so linked as one might think. Which is often why people have very negative opinions of them.

    Comment by Psychochild — 27 June, 2011 @ 4:02 PM

  6. Well, that’s just the idiocy of politicians. The ideologies are pretty opposed in a lot of ways.

    Comment by Tesh — 27 June, 2011 @ 5:26 PM

  7. Are violent videosgames harmful enough (as demonstrated by scientific research, not ideology) to young enough children to mandate them being blocked, much as we would block the sale of tobacco or alcohol? That seems like the real question here, and yet the one that gets ignored. Children cannot vote, so clearly they’re not meant to be treated as rational, fully-functional independent beings who get to kill themselves like adults. How anyone thought this was an issue of liberty is beyond me.

    I don’t see how this helps videogames either. I don’t think they should be treated the same as other media. They aren’t other media. The interactive nature is one major component of it. I want them to be respected as their own form of media, with no need to be treated like movies with more menu options. But maybe that is what they got, their own category, since last I remember there are age restrictions on movies.

    Comment by Klepsacovic — 27 June, 2011 @ 5:58 PM

  8. Tesh wrote:
    Well, that’s just the idiocy of politicians. The ideologies are pretty opposed in a lot of ways.

    And yet, people keep electing them. Essentially both of the main ideologies (Republicans and Democrats) want the government to interfere in some areas and and stay out of others. It’s the details of what should be interfered with and what is sacrosanct that makes the difference.

    Klepsacovic wrote:
    Are violent videosgames harmful enough (as demonstrated by scientific research, not ideology) to young enough children to mandate them being blocked, much as we would block the sale of tobacco or alcohol?

    In general, the reputable studies have shown that there is no harm done to kids who play video games. There have been some studies that have shown links, but they’ve mostly been discredited. These studies were presented to the Supreme Court in this case.

    How anyone thought this was an issue of liberty is beyond me.

    The issue of liberty is two-fold: First, is it the responsibility of the parent or the state to protect kids from harmful media? As Tesh points out above, the prevailing opinion is that it is the responsibility of parents to protect their children from things they think the kids should not see. Second, does the law potentially restrict the expression enjoyed by adults? It’s been established by precedent that we can’t dumb down all expression to the level suitable for children. The California law tried to deal with this by specifying the sale of games to minors, but there is the issue of the “chilling effect” of stores not carrying any games if it becomes a burden to comply with the law.

    I don’t think they should be treated the same as other media.

    Well, in a lot of ways you are right. But, when it comes to recognizing them as legitimate forms of creative expression worthy of free speed protections in the U.S., they should be treated like moves, books, paintings, sculptures, etc. We should no more expect video game developers to cut out “violent” scenes than we should expect an artist to remove the bloody bodies in a work like El Tres de Mayo.

    …last I remember there are age restrictions on movies.

    Note that the MPAA ratings in the U.S. are completely voluntary, if a bit shady. (See the movie This Movie is Not Yet Rated for a deeper look into that particular rabbit hole.) (Also note that the MPAA filed a brief in support of the EMA in the case.) Games have their own ratings through the ESRB in the U.S. This is also a voluntary system run by the industry, not by the government.

    Hope that helps clear some things up.

    Comment by Psychochild — 27 June, 2011 @ 11:38 PM

  9. The issue of liberty is two-fold: First, is it the responsibility of the parent or the state to protect kids from harmful media?In general, the reputable studies have shown that there is no harm done to kids who play video games.
    In that case, the only thing to debate is the appropriate punishment for the legislators who passed a completely useless bill. Sadly, that would never happen.
    The issue of liberty is two-fold: First, is it the responsibility of the parent or the state to protect kids from harmful media?
    Both. I’d ban the sale directly to children (if any harm was found) but allow parents to purchase it and give it to the child (meaning that children can get the game with parental approval). Since no harm was found, no ban makes any sense.
    It’s been established by precedent that we can’t dumb down all expression to the level suitable for children.
    I’d hate to live in a world where everything was censored to be “child-safe”. But restricting sales to them imply censoring all expression everywhere.

    Comment by Klepsacovic — 28 June, 2011 @ 5:22 AM

  10. After reading up a bit on this whole decision that I hadn’t heard of at all until last night, I’m still confused. What exactly is prohibited now? And what is prohibited to be prohibited? Surely it can’t mean that states do not have the right to impose any restriction on what minors can buy or not. I believe there must be a system in place for that for, let’s say, movies? Or can a 12 year old walk into a shop in California and buy “Massive Mamas doin’ it all XIV”?
    What I got from the decision was that supposedly, it had something to do with commensurability? In that the Californian law was vague enough that restrictions were too easy and could also be applied to selling to adults? Or something like that? It seems when it comes to details in court decisions, media coverage often becomes fuzzy fast.

    Comment by flosch — 28 June, 2011 @ 7:52 AM

  11. Ah, there’s where we differ, Brian. I’m talking about the ideologies of liberty vs. statism, not the political parties. Framed as the political parties, I agree wholly with you.

    Comment by Tesh — 28 June, 2011 @ 9:30 AM

  12. I know I’ve spoken on these lines before, so I’ll keep this short. I fully support freedom of expression, but that’s not the same as agreeing that anything that could be construed as expression needs to be completely unrestricted. The strange outward growth of free speech from the original “freedom to criticise the government” to “freedom to say, do, or sell absolutely anything which can somehow be argued as constituting ‘speech’” is a potentially counter-productive move for a society. Any personal right has to be balanced against responsibilities towards others and I don’t think a rule enacted 200 years ago is a good match for how best to run a society today. Additionally, while I’m not in favour of abrogating parental responsibility, I think a child has far more external stimuli than ever before in the history of humanity, and I think it is probably the case now that no single pair of parents can hope to nullify or mitigate everything that their child is exposed to. So it falls to the rest of society to take up a share of that burden, and not to expect parents to be able to undo any damage they cause, as that just may not be possible.

    It would be interesting to see what proportion of people, setting aside all existing written laws and rights, would support banning the sale of any of the following to minors:
    a) A piece of paper containing some psychological trickery that compelled the reader to murder the nearest person;
    b) A book making a profound statement on the value of human life but which contained exactly the same trick as the previous paper, working with the same efficacy;
    c) The same book, but with only a 10% chance of exerting the influence on the reader;
    d) A game that is faithful to the previous book in content, but marketed as entertainment
    e) The same game, with the influence diluted to 0.01%
    f) The same game, with the influence diluted to 0.0001%

    Comment by Ben Sizer — 28 June, 2011 @ 2:56 PM

  13. @Ben Sizer

    A – yes, we tend to ban murder even second hand.
    B – ditto.
    C – ditto.
    D – ditto.
    E – Now it’s a matter of what diluted means, if it simply means one in a hundred or one in ten thousand goes the full nine to becoming a murder, probably yes. If it means the overall influence on any given mind has been reduced to that much, well then E would probably still be yes, while F would certainly be no since it would be little more than harmless background noise at that point.

    That’s an unrelated argument though. We aren’t talking about super murder books, we’re talking about horror games ala FEAR, and (to avert the usual GTA invocation) open world games like Fallout: New Vegas. They may increase aggression to some degree, but aggression is not a measure of “axe-murdererness” sometimes people need aggression, sometimes your supposed to be a bit aggressive, it helps get things done. And to top it all off, this law was trying to sneak by on the grounds of content that is age appropriate for your average young adult being ruled obscene. That which is ruled obscene faces far more limitations and issues than simply being kept from children, it effects the legality of broadcasting it’s content, and even it’s overall legality as a whole. Obscenity is considered a sort of de facto illegal form speech, though it’s seldom pursued, it changes the fundamental rules surrounding the speech from a default of acceptance and legal protection, to one of simply being permitted for so long as it suits our temperament.

    I’m tired of protecting children being used as an excuse to be irrational, irascible and all around indefensibly ineffectual. If you want to protect your children, be a rational adult with a relatively even keel. Teaching them, through example, how to be a good person will always be a much more effective form of protection than banning from public discourse speech you happen find questionable. Running around writing reactionary cluster fucks of laws isn’t doing them any favors, in fact, it’s just a way of cutting them in the most in-compassionate way of all by teaching them that the appropriate behaviour in any situation is abject stupidity.

    Ironically Scalia had the right of it. No matter how admirable the aims may seem, the law itself is overly broad in the scope of it’s precedent, and overly narrow in scope of it’s targets.

    @flosch
    “Massive Mama’s” would fall under obscenity laws as it’s pornography and therefore in any of the fifty states selling it to a minor would be illegal. Schindler’s List on the other hand would not be illegal to sell, most stores simply have a policy not to do so.

    Comment by Sara Pickell — 28 June, 2011 @ 11:43 PM

  14. What do you think? Major victory, or just the beginning of the rest of the struggle?

    Major victory marking the first significant steps of the struggle.

    Games are a form of art, now. Whether they are good art or not is irrelevant – and determined by the individual work, not the genre. Censoring them, then, is as foolish as censoring other art.

    Parents have to be responsible for raising their child.

    Additionally, while I’m not in favour of abrogating parental responsibility, I think a child has far more external stimuli than ever before in the history of humanity, and I think it is probably the case now that no single pair of parents can hope to nullify or mitigate everything that their child is exposed to. – Ben Sizer

    This, in my opinion, is an extremely important point, but one that I feel Ben doesn’t really examine in practice. The reality is that censoring a product, making it forbidden fruit, will increase it’s appeal to children. Particularly impressionable, rebellious teens – the very demographic the proponents of censorship are trying to “protect”.

    Modern parents are absolutely incapable of fully preventing a child’s access to these things. With the Internet and it’s availability outside the home, even if parents control it within, children will get access to what they want to see. At a friends house, commercial establishment, school, whatever. A huge portion of children carry internet connected laptops everywhere with them.

    So, it’s the parents responsibility to teach their children to grow into good people. You can no longer (try) to do that simply by limiting access, the old “easy way out.” Now, you need to go the long, hard road, and actually teach them why things are right or wrong, how to interpret art – even distasteful art.

    It’s for the best, really. You could well argue that children who’ve been excessively sheltered are ill-equipped to deal with these sorts of things when they are finally exposed to them. That’s increasingly rare these days, and will soon be a thing of the past completely barring wierd hermit families living in the wilderness.

    Comment by Derrick — 29 June, 2011 @ 5:39 AM

  15. Ben Sizer wrote:
    It would be interesting to see what proportion of people, setting aside all existing written laws and rights, would support banning the sale of any of the following to minors:

    There’s a quote from Justice Potter Stewart of the U.S. Supreme Court who said of obscenity, “I know it when I see it.” So, it often comes down to what’s allowed and what is not, it’s not exactly well-defined. The U.S. Supreme Court has held that most expression is protected, except “hard-core pornography”. Even that has some protection unless it offends “moral standards” and “the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” (From the case Miller v. California, 1973) What I get from the opinion written about this current case is that the Supreme Court didn’t think it was appropriate to try to carve out a whole new exception to “free speech” to protect kids from violent video games.

    As for your examples, as Sara said this wouldn’t be freedom of expression, but something that incites murder would generally be restricted. A more interesting question would involve a graphic description of a murder. Editing your list of scenarios:

    a) A piece of paper containing a graphic description of a murder;
    b) A book making a profound statement on the value of human life but which contained exactly the same graphic description of a murder;
    c) The same book, but with a more general and less graphic description;
    d) A game that is faithful to the previous book described in b, but marketed as entertainment;
    e) The same game, with a less vivid depiction of the murder;
    f) The same game, with a mere mention of the murder and a hint at the scene.

    The problem was that until this Supreme Court case, a through c were protected speech but d through f were not. As Scalia mentioned in the opinion, there are plenty of examples of books and stories with graphic depictions of violence that we accept as being worthwhile. There’s no reason for games not to enjoy the same protection.

    …I think a child has far more external stimuli than ever before in the history of humanity….

    Throughout history there has always been the perception that kids are more unruly than they were in the past. There’s a great quote that people post:

    “Our youth now love luxury. They have bad manners, contempt for authority; they show disrespect for their elders and love chatter in place of exercise; they no longer rise when elders enter the room; they contradict their parents, chatter before company; gobble up their food and tyrannize their teachers.”

    The trick here is you’re supposed to think this applies to today’s youth, but it’s usually attributed to Socrates. Yeah, even in ancient Greek times they thought their kids were terribly unruly and worse than previous generations.

    This is really the core of the issue: computer games are the new medium that kids love but that many older adults don’t understand. In the past this has been true of comic books, rock ‘n’ roll music, movies, theater, even novels. People have always lamented that some medium is going to corrupt the children, make them even more impossible, and bring about the end of civilization as we know it. Funny enough, it never does.

    While it might be true that kids experience more stimuli than previous generations, your implication that they are therefore less capable of handling it is likely false. Your observation is likely based upon your relative perceptions. However, to the ancient Greek who complained about kids, the stimuli we had as kids would surely have lead him to believe that our fragile little minds would have been destroyed from all that stimulus; television alone would have overwhelmed the poor guy. But, kids have dealt with increasing amounts of stimuli and the human race is still going. Such as it is. ;)

    Derrick wrote:
    Modern parents are absolutely incapable of fully preventing a child’s access to these things.

    Parents have always been incapable of preventing a child’s access to everything. When I was a child back in the mists of history, I certainly got into stuff I wasn’t supposed to, and not because my parents didn’t pay attention to me. I remember wandering off to go play away from the house without my parents knowing exactly where I was, something that would scandalize parents today. Ultimately, I think you’re right as the best parents teach right from wrong and trust their kids to apply those lessons as appropriate.

    Comment by Psychochild — 29 June, 2011 @ 11:52 AM

  16. Ben Sizer wrote:
    I fully support freedom of expression, but that’s not the same as agreeing that anything that could be construed as expression needs to be completely unrestricted.

    One note: in the U.S. “freedom of speech” (or expression) means that the government can’t restrict what’s being said in most cases. There are some rather famous examples, like hard-core porn like I mentioned above and shouting “Fire!” in a crowded theater to create a panic. But, this doesn’t stop individuals or organizations from restricting some forms of speech. For example, the ESRB might decide it doesn’t like ponies (to use a silly example) and decide not to give classification to any game containing ponies. Since the system is voluntary and not run by the government, this would be acceptable. it seems many people think that “freedom of speech” applies a lot more liberally than it actually does.

    Ultimately this freedom went beyond just the right to criticize the government because in order to prevent the government from trying to squash information it doesn’t like, or more appropriately to stop politicians from using government power to quash their rivals. As I said in an older post, ultimately freedom of speech is about protecting unpopular speech, as it’s the unpopular topics that need more protection.

    Ultimately, extending protection to video games is a good thing, I believe. As I said, we’ll see if this helps take games off the list as a favorite punching bag of U.S. politicians looking to score easy “family values” points.

    Comment by Psychochild — 30 June, 2011 @ 5:44 AM

  17. I hope people will accept this comment in the spirit it was made, but I’ve never understood this position against this regulation. After all, we’re talking about selling to minors, not adults. We have laws against selling cigarettes, alcohol, R-rated movies, and pornography to minors. Ok, we’re talking speech so just R-rated (and up) movies and Pornography then. Should we not have these laws also? As a devoted aunt, I know that my nephews both have tons of money (my 11 yr old nephew just bragged to me yesterday that he had over $400.00). Once children get to be a certain age, they can get to a store by themselves or when they’re at a friend’s house (public transportation). I certainly wouldn’t want them to be able to walk into a store and purchase anything that it’s currently illegal to sell to minors. I also wouldn’t want them to be able to buy, say, Grand Theft Auto.

    Its all very well to say that parents should be responsible for what their children do, but highly unrealistic. Can you imagine how many 10 year olds would be buying porno without their parents’ knowledge if it wasn’t illegal to sell it to them? People say that violent video games don’t do any “harm” which really makes me angry. I don’t agree that it’s ok for a child to play a video where they carjack people or beat up prostitutes, etc because it supposedly doesn’t cause any “harm”. I’d have to say that I disagree with whoever is defining “harm” here.

    I also disagree with Psychochild’s comparison of video games with art. Violence is acceptable in art because it is conveying a deeper meaning. Blood and guts from a carjacking is just mindless gore. Video games are not art – they are entertainment like movies or TV.

    Comment by Djinn — 30 June, 2011 @ 3:14 PM

  18. “I’d have to say that I disagree with whoever is defining “harm” here.”
    This is something for the psychologists and sociologists to figure out, scientifically. Not a feeling.

    “Violence is acceptable in art because it is conveying a deeper meaning. Blood and guts from a carjacking is just mindless gore. Video games are not art – they are entertainment like movies or TV.”
    Movies and TV can be art, just as video games can be. Beside that, what’s so low about entertainment? Why does arbitrarily defined art get to be violent but entertainment doesn’t?

    Comment by Klepsacovic — 30 June, 2011 @ 6:00 PM

  19. @Klepsacovic First, you are entitled to your opinion. I said that I disagree with them, that is my opinion.

    Second, I was speaking in context of violent video games which is the subject of this discussion. Art is a form of expression, not simply entertaining. While anything CAN be art, I don’t believe that there currently are any violent games that are art.

    And saying that video games are not art is not bashing video games. There is nothing inherently good about art – there is plenty of bad art. Art doesn’t “get to be” violent. We accept that violence because it isn’t gratuitous. It’s not just someone getting a Beavis and Butthead chuckle out of the gore like they do with Grand Theft Auto, et al.

    Comment by Djinn — 30 June, 2011 @ 8:13 PM

  20. @Djinn
    But it isn’t illegal for them to get R rated movies. It’s an epic media bloodbath for them to get R rated movies so the movie theater industry, retail industry and regulation boards all follow policy guidelines surrounding the issue, but it isn’t actually illegal.

    And you know what, the game industry does the exact same thing. Our internal regulations are pretty much exactly on par with those of the movie industry and have only gotten stronger in recent years. Your nephew has to go through the exact same process to get GTA as he would to get Die Hard.

    That’s the problem, they’re using an argument with no real, or at least unique to games, basis. Allowing this law through would make all games that qualify for M be considered the equivalent of X rated, a rating that is in itself a form of censorship at this point. So you would be limiting the options available to adults, without actually changing anything for children. They will simply get their adult games the same way they get their adult movies, the internet.

    That’s actually kind of the whole point in all of this. WE ARE NOT AND NEVER WERE TALKING ABOUT SELLING TO MINORS. That was total bullshit only tacked on to the argument as a way of drumming up moral outrage for the censorship side. We’re talking about the arbitrary legal classification of an entire art form as “bad for you and therefore an obscenity that must be censored” simply because what we have now isn’t that great. Oh and because “it’s that thing those damn kids are into.” It’s rock and roll, it’s comic books, it’s early film and those damn whorey novels (like Jane Austen). We didn’t win comic books, and it never really recovered despite obviously having the capacity to be art, e.g. Maus. And worst of all, we’re talking about politicians praying on the fears of people who don’t know how their entertainment industries work to cynically stand up and say “hey I’m a good guy, I fought for your kids” no matter how badly they sold you and your kids up the river.

    Comment by Sara Pickell — 1 July, 2011 @ 12:15 AM

  21. I think this discussion has gotten a bit sidetracked: discussing games as (capital-A) Art vs. games as protected expression. These tend to be related (since most protected expression falls under the category of Art), but they are different issues. One is a legal status, the other is an opinion.

    Djinn wrote:
    Violence is acceptable in art because it is conveying a deeper meaning.

    This isn’t always the case. Name me a medium, and I’ll bet I can find something that would disgust you. I could also show you games where the violence is an intrinsic part of the story showing deeper meaning.

    The purpose of freedom of expression is to protect them. As Ben points out, this is generally to allow open criticism of the government. But, it’s also society’s way of saying, “We know that people can do bad things with some media, but we believe that enough good comes from it that we should protect the expression.” That way we make sure we can have Huckleberry Finn and Lolita available as well as the Bible and American Psycho. You may not like some of those books, but as a society we agree that we will make them readily available. Again, this doesn’t quite mean “anything goes”, as you still cannot cry “Fire!” in the crowded theater to incite riot, etc.

    The big problem with singling games out is that, well, it’s singling them out. You might have the opinion that games are harmful, but it (usually) takes more than a general opinion to outlaw something. As I said above, most studies trying to show that games (particularly violent ones) do harm to kids have been debunked. So, given that there is no scientifically proven harm done, there’s no reason why games should not enjoy the same protection as other media. Perhaps this will encourage someone to take steps to create a work on the level of classics of other media now that there is less legal ambiguity about protection for games. At the very least, U.S. Supreme court has cleared the way, now it’s up to game developers to use that power appropriately. I suspect it might still take a while, but it’s the first steps.

    Comment by Psychochild — 1 July, 2011 @ 1:40 AM

  22. Everyone seems to mainly be concerned that limiting a SMALL % of games from children will mean that those games will no longer be sold in stores. Since the industry is going digital download anyway, I have to question that concern. Porn is illegal to sell to minors and while it is definitely not found in most stores, that doesn’t seem to be having any effect on how much of it is made / purchased.

    As for the voluntary rating system, for some reason it doesn’t seem to be enforced as much as movies are from what I’ve read/heard. And frankly the more extreme content in video games marked M is in hardly any movies, if at all. In addition, video games are interactive which seems much worse to me than a fleeting image in a movie. So I think that M video games are much more to worry about.

    @Psychochild – I’m going to comment on your continuation of the sidetrack :) “Name me a medium, and I’ll bet I can find something that would disgust you.” Most violence is disgusting, but that’s not my point. Images of the Holocaust in a museum are horrific, but they aren’t displayed in order to be sensational. They are a comment on humanity, etc. By definition if a work is showing violence only to get attention and not to portray some deeper message, it is not art. Games ARE entertainment. That is their purpose. Just as with movies, it is going to be the rare game that is considered art. The vast majority are going to be simply entertainment.

    In regards to singling out video games, porn is also illegal and I wouldn’t want my nephews to play some of the more mature video games even more than I would want them seeing porn. To me violence is far worse than sex. If porn is illegal I don’t personally have a problem with these games being illegal to sell to minors. The other issue with making certain games illegal is the “slippery slope”. But the slippery slope didn’t happen with porn…actually quite the opposite. So I’m not sure why people think it will happen with games.

    Comment by Djinn — 1 July, 2011 @ 11:47 AM

  23. Djinn wrote:
    As for the voluntary rating system, for some reason it doesn’t seem to be enforced as much as movies are from what I’ve read/heard.

    A quick search revealed this: http://techliberation.com/2008/05/08/latest-ftc-secret-shopper-survey-shows-improving-ratings-enforcement/

    R-rated cinema admissions have dropped gradually, from almost 50% of kids getting in in 2001, to about 35% today. R-rated DVD sales for teens have falled from 81% in 2001 to 47% today. And the video game industry’s outstanding education and awareness-building efforts have shown the most success, with M-rated video games only being sold to 20% of teens today, down from 85% back in 2000.

    In other words, it’s easier for a kid to go buy a violent DVD or see a movie in a theater than it is for them to buy a violent game, according to data from 2008. Note that DVDs in particular were about the same rate earlier in the decade (81% vs. 85%), but now the rate for games is less than half compared to DVDs.

    Keep in mind the truly egregious stuff, games rated AO (Adults Only, roughly equivalent to movie rating of NC-17) isn’t carried in stores major retail.

    And frankly the more extreme content in video games marked M is in hardly any movies, if at all.

    So, you’re telling me that a typical M-rated game is worse than a kid watching The Human Centipede? (Yeah, that movie is vile.) Or any of the other types of movies referred to as “Torture Porn”? I find that incredibly hard to accept, and not just because I’m a game developer. I’ve played pretty much all of the “most violent” video games out there, but I don’t have the stomach for those types of movies. So, are you going to advocate limiting movies as well because a few of them push beyond the boundaries of good taste? How about books? Paintings? Where does it stop?

    In addition, video games are interactive which seems much worse to me than a fleeting image in a movie.

    You might think this, but it has not been proven. Lots of scientists have tried, repeatedly.

    Here’s an excerpt from the SCOTUS opinion dealing with the studies that the state of California presented to support the harm games do to children:

    The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies 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.

    If there is to be restrictions on access to media for children, it should be based on hard evidence, not vague feelings.

    In regards to singling out video games, porn is also illegal…

    We are not talking about porn here. Hard-core pornography is a notable exception to freedom of expression, and explicitly pornographic video games are likely to be restricted under the same laws that restrict pornographic movies. The California law in question attempted to restrict the sale of “violent” video games; of course, how the law defines “violent” was also an issue, with laws never quite being precise enough to prevent creep in scope.

    The other issue with making certain games illegal is the “slippery slope”. But the slippery slope didn’t happen with porn…actually quite the opposite. So I’m not sure why people think it will happen with games.

    Again, this isn’t about porn. Yes, porn remains popular despite restrictions. I think that’s one of the main reasons why Americans accept this restriction being made, because porn isn’t going away.

    But, the “slippery slope” it has happened in another medium: comic books. The Comics Code Authority, ironically a self-regulating body, was established under threat of legislation by the U.S. Congress. Go read that Wikipedia article, take careful notice of the “Judgement Day” story. The “slippery slope” here is that once you put people in charge of regulating things, people tend to use that position to further their own agenda. Sure, maybe people wouldn’t try to exclude a black character from a video game, but it might be a homosexual character, or ideas supporting an independent political outlook, or something else. Also notice that the CCA was so strict that it wouldn’t allow a Spiderman comic, funded by the government, to show the negative effects of taking drugs because comics couldn’t show drugs! The CCA restricted a message that many people would probably accept as being a fairly good one.

    Ultimately, the CCA did a lot of harm to the comics industry. While countries like Japan and France have a thriving comics industry, the U.S. industry was stuck with hyper-exaggerated superheroes and one-dimensional plots. And, yes, these other countries have some rather “questionable” ones when it comes to sexual content, but that’s because comics are seen as a legitimate art form that contains a wide variety of topics (in Japan this ranges from baseball stories to coming-of-age tales to historical topics) beyond the simplistic tales we have. I’d really rather not have the U.S. game industry suffer the same fate as both a developer and a player.

    Comment by Psychochild — 1 July, 2011 @ 4:17 PM

  24. First, to re-quote myself: “the MORE EXTREME content in video games marked M is in hardly any movies, if at all.” [emphasis added]

    The content I’m talking about is extreme and valueless: beating prostitutes, beating elderly, raping, killing cops, extreme gore, etc. In my opinion it shouldn’t exist in a game and I deplore that my nephews might learn to look at these subjects as entertainment. And the movies I’m talking about are any movie that a minor is supposed to be restricted from seeing.

    Many people have stated that “harm” should be determined by scientists and apparently the “harm” they are looking for is whether it influences people to be violent. My definition of harm isn’t restricted to making kids violent, therefore my opinion. Certainly if people believe that the current generation of children should grow up to find the content in my previous paragraph entertaining, that is their prerogative. I am very saddened by that thought however and view that as “harm”.

    Finally, you have 2 examples of slippery slope: one that is law and did no harm, one that is self-regulation and did huge harm. I personally don’t look at a statistic of 1 to be predictive one way or the other. It seems to me that any form of restriction could be argued as threatening on this basis. I suppose that no restriction is the next goal based on this argument . In any case, we will have to agree to disagree :)

    Comment by Djinn — 1 July, 2011 @ 5:00 PM

  25. Apparently I can’t edit my comment. There was a [joke] at the end of my next-to-last sentence which got cut because I put carats around it.

    Comment by Djinn — 1 July, 2011 @ 5:06 PM

  26. Honestly, the problem here isn’t legislation, it’s parenting.

    You should monitor your children’s purchases if you are concerned about them, not rely on the government to legislate your particular ideals. Further, at a more basic level – why does an 11 year old boy have unrestricted access to spend $400? Particularly if they cannot be trusted to purchase things that are deemed safe by their parents – Who, incidentally, have a responsibility to research these things and make these decisions.

    The parents are responsible here, entirely. If it’s not ok for your child to buy that, then you tell them so, and enforce it. You can’t stop them from playing it if they want to, of course – and the laws have no impact on that. A friends older brother may buy it, or the child may simply pirate it.

    Hell, there’s not really any purpose now to having porn be restricted in stores aside from basic overall appearances. Any child today has unlimited access to free porn, no matter what the parents want. Few parents have the technical nohow to really block it on their home computers, and of those most will be utterly outclassed by the young kids ability to learn to cover their tracks. Why would they buy it? That’s just silly.

    Comment by Derrick — 1 July, 2011 @ 7:33 PM

  27. @Derrick: I don’t know if you have children or are close with anyone who has children, but at a certain age they start going places by themselves. How do you monitor their purchases then? I didn’t say that my nephew has unrestricted access to $400.00. The point was that he has plenty of money. If he goes to the mall with his friends once a week and says he’s bringing $10 each time for food and misc spending money, in only 2-3 weeks he can save enough money that he supposedly spent already to buy a game. Many kids have their own devices – he has a DS (I don’t know which model). His brother also has a phone. There are lots of things you can put on these devices. For the DS its not even downloaded but on a card that you can remove (and hide). Other consoles are similar.

    You are correct that many times kids can gain access to things anyway, but as a society we can do the best we can. Saying that they may gain access anyway is not the answer. That’s like saying we should all swear around children as much as we want because they’re going to hear it anyway. And no, every child does not have unlimited access. My sister has their computer in the kitchen where they monitor my nephews’ usage. And I know how to set parental controls. We try the best we can but every little bit helps.

    Comment by Djinn — 1 July, 2011 @ 7:49 PM

  28. @Sara Pickell: I don’t think it’s an unrelated argument at all – why does the fact that it’s a game and not a book make a difference? It’s selling something that influences behaviour – the only question is how much.

    @Derrick: “The reality is that censoring a product, making it forbidden fruit, will increase it’s appeal to children.” Sure, but if availability is reduced by a larger amount, then the net effect can still be positive. Sure, people can still obtain things via the internet, if they try hard, but I think this is a bit overstated. You’d hope parents can exert some control over what their children access online up to a certain age (which admittedly is not 18), plus console games (which are the majority of commercial games played by kids, by a large margin) still have to be physically bought. And I’d point out that there really isn’t this massive drive for contraband goods among children in the large number of countries (eg. in Europe) that already have age-restricted games.

    @Brian: yeah, the old quote about children getting worse is interesting – but the fact that people still say similar things doesn’t necessarily mean it’s false! All change is relative, after all.

    I totally agree that books and films should not enjoy more protection that games. (At least, until they find conclusive evidence that games shape personality more than the above, which I think they will, and which I think is as much of an opportunity as a worry). My general argument is that I think America tips the balance too far towards ‘protected expression’ without wishing to consider the effects of that expression. I think it’s a strange logical jump to go from saying “this is important expression: I should be able to make and distribute these games”, to “this is important expression: I should be able to make and distribute this games to absolutely anybody regardless of any consequences resulting from that”. I support the former, just not the latter. Unfortunately, due to the way your constitution works, it seems you pretty much have to do this, because apparently if a child can’t buy your expression, it somehow limits your ability to be expressed? Thus in order to prove that games are art, you have to allow the least artistic and potentially most damaging to be sold to minors. To me, this just shows what is wrong with basing laws around old historical documents and treating them as sacrosanct.

    I do think we place a little too much hope in parents to be able to cope with this stuff. It wouldn’t matter so much if it were the parents themselves who suffered, but if someone’s child is unfairly aggressive to others, or worse, commits some violent crime, which was influenced by the media they consumed, then it’s innocent 3rd parties who suffer. Society has to decide whether that 3rd party’s suffering is worthwhile when set against the benefits to the people selling the media. I personally think that an age limit on certain goods is a bit closer to the optimal balance here. Ultimately psychology is a complex thing, and just as we don’t know the full effects of media on behaviour, we also still do not know exactly how to raise a child to stop them being a criminal. We like to think we know how, and everybody has an opinion on it, but we don’t – psychology just doesn’t have the answers yet to explain why sometimes a kid from a decent family with completely law-abiding siblings goes out and shoots people. The Kip Kinkel case is an interesting example. So relying on parenting as the only tool in the child-raising toolbox seems wishful at best.

    It’s also interesting to contrast the historical perspectives. Americans often talk about the Comic Code and how it stifled the expressive power of the industry, but I think that’s more about the power of bad censorship rather than censorship in general. It’s often overlooked that some of the most violent games, such as the Grand Theft Auto series, Carmageddon, Manhunt, were made in the UK where we do have laws like the Californian one in place. It wouldn’t appear that expression is being overly curtailed.

    Comment by Ben Sizer — 2 July, 2011 @ 6:12 AM

  29. Djinn wrote:
    First, to re-quote myself: “the MORE EXTREME content in video games marked M is in hardly any movies, if at all.” [emphasis added]

    The stuff you mention is in movies:

    beating prostitutesKalifornia where “Early Grayce (Brad Pitt) currently gets his kicks by beating up prostitutes and killing their johns.”

    beating elderly, rapingA Clockwork Orange, considered a classic movie. Based on a book, that contains these scenes as well.

    killing cops – Let’s be different and pick Ice-T’s song “Cop Killer”. Finding a movie with gratuitous cop killing is too easy.

    extreme gore – Any torture porn movie like Hostel or Saw has content that goes above and beyond the worst a game has shown. The worst game I can think of is probably Manhunt, and that is practically tame compared to the explicitly gruesome content in any of this style of movie.

    Many people have stated that “harm” should be determined by scientists and apparently the “harm” they are looking for is whether it influences people to be violent.

    I’d prefer my lawmakers work with facts instead of opinion where possible. Video games sales should not be stopped no more than sexual harassment laws should be repealed because lawmakers “feel” harassment does no harm to victims and costs too much for businesses. I also prefer consistency in my laws; as the Supreme Court says, there’s no reason to carve out exceptions for video games when we have plenty of violence available to children in other media and there is no proof that video games have a different impact.

    one that is self-regulation and did huge harm.

    It’s important to note that this self-regulation came because the government was threatening to regulate (in laws that would have run afoul of free speech protections, but not necessarily seen as such with the Supreme Court at the time). Self-regulation was seen as the better option, but look how that turned out. Would the government regulation have been better? We can speculate, but I see no reason why it would not have turned out the same way.

    Apparently I can’t edit my comment.

    That’s what the preview button is for! :) The system trips out anything that looks like stray HTML to prevent a certain class of hacks.

    That’s like saying we should all swear around children as much as we want because they’re going to hear it anyway.

    No, it’s like saying that you need to write down everything you plan to say in front of a child and give it to a government official to review to make sure there is nothing considered by law to be inappropriate. The proper thing to do if an adult doesn’t want someone swearing near a child is to ask them not to do it, not petition the government to create laws restricting it.

    Derrick wrote:
    You can’t stop them from playing it if they want to, of course – and the laws have no impact on that.

    What’s worse is that the laws are likely to have a “chilling effect” on what stores will carry. Already stores pretty much categorically refuse to carry AO rated games, effectively making that rating the kiss of death for a game. This also means that any games that wanted to deal with topics that might relate to this area, such as a mature discussion of sexual relationships, are restricted.

    Ben Sizer wrote:
    …apparently if a child can’t buy your expression, it somehow limits your ability to be expressed?

    As I mentioned, it’s a “chilling effect” that is mentioned in legal contexts. Let’s say the California law was allowed to stand. The problem is that, as I mentioned above, 20% of minors are still able to buy games, and this isn’t all due to inattentive or uncaring shopkeepers; sometimes mistakes happen or kids actually lie to get what they want. So, a larger retailer looking at the cost of compliance might decide not to sell games, which would be bad. (Yes, digital distribution, etc, but how long until the government tries to expand the laws to that, making Steam do the impossible: verify that the person buying the game is an adult.) Or, how does this law regulate “indie” games sold from a website? What about a developer not from the U.S.? In short, it just becomes easier not to deal with it at all, which does reduce the ability to express oneself through the medium.

    Ultimately the issue is that banning a game might have the follow-on effect of restricting games available to adults. As I said before, it’s been established that restrictions intended for minors don’t only apply to minors. That’s the basis of most of the court’s rulings in these cases.

    …if someone’s child is unfairly aggressive to others, or worse, commits some violent crime, which was influenced by the media they consumed….

    Again, there’s no evidence that this is the case. (In fact, some studies suggest they help reduce crime. Here’s the more visual anecdotal version.)

    …psychology just doesn’t have the answers yet to explain why sometimes a kid from a decent family with completely law-abiding siblings goes out and shoots people.

    Well, that doesn’t meant that banning random things and hoping to stop this is the right move based on gut feelings. We might have to accept that random shootings are just that: random. We might have to wait until neuroscience does catch up and figure out what causes this. Then we have a whole other ethical debate if “reading people’s minds” to prevent these tragedies is the proper response, or if banning something that seemed unrelated at the time is the proper response.

    So relying on parenting as the only tool in the child-raising toolbox seems wishful at best.

    It may not be the only tool, but it should be the primary one. Ultimately, I think it comes down to this: if a kid is sneaking around buying and playing violent video games against a parent’s wishes, there are some larger issues here than the kid playing violent video games. And, studies have shown that kids who play excessive video games have other problems with self-control (smoking, not doing homework, etc.) not related to gaming. And, even if you did ban kids from buying violent video games and somehow didn’t impact the ability for adults to enjoy them, what about all the other violent media from “torture porn” movies to the original Grimm’s fairy tales.

    Americans often talk about the Comic Code and how it stifled the expressive power of the industry, but I think that’s more about the power of bad censorship rather than censorship in general.

    Americans, in general, believe there is no such thing as “good censorship”. Once you go down the path in accepting censorship, you allow a whole other host of problems to raise their ugly heads. Once you get into the business of deciding what content is acceptable or unacceptable, then those boundaries expand. And, it’s not like the CCA created a few isolated incidents, the CCA was routinely and continually the source of problems and abuse throughout its history. It was a case of a “moral panic” where someone wanted a scapegoat to blame the problems with the young people of the day who were obviously less respectful and less moral than any previous generation.

    It’s often overlooked that some of the most violent games, such as the Grand Theft Auto series, Carmageddon, Manhunt, were made in the UK where we do have laws like the Californian one in place. It wouldn’t appear that expression is being overly curtailed.

    I’m glad you completely trust your government. ;) Perhaps there’s a reason why Americans don’t share that enthusiasm….

    Comment by Psychochild — 2 July, 2011 @ 12:43 PM

  30. @Psychochild “29.Djinn wrote:
    First, to re-quote myself: “the MORE EXTREME content in video games marked M is in hardly any movies, if at all.” [emphasis added]

    The stuff you mention is in movies:”

    [sigh] I requoted myself because you didn’t respond to what I actually said, and now again “HARDLY ANY MOVIES, if at all.” Note that for the elderly you had to go back to a 40 year old movie that was obscure when it came out. Not a lot of this in any actually-popular movies that a minor is likely to see. You’re reaching here, which was my point.

    As for torture, in googling I also found “The Torture Game” which was from 2008 and sounds shocking. I wouldn’t start it up to see for myself but the descriptions are disgusting and far more graphic than any movie I could think of except perhaps SAW which I won’t read about or watch so I don’t know more than the couple seconds from commercials before I turn them off (but even that seems enough to know).

    As for harmful effects on minors, I’m not suggesting that we not work with facts. I’m saying that I believe that their definition of harm (video games causing minors to BE more violent) has already let things go too far. I don’t want to wait until something causes my nephews to actually BECOME more violent. I don’t want minors to play games that cause them to view “beating prostitutes, beating elderly, raping, killing cops, extreme gore…” as entertaining. By definition, putting that content in games where you/your character is the one doing it (or on the side of those who do) causes you to look at these actions as fun (you play games to have fun). Whether you then go out and do them in RL or not is beside the point. As an adult I don’t think of these acts as fun and would never go out with (for instance) anyone who did. I certainly don’t want children to think this way.

    Comment by Djinn — 3 July, 2011 @ 8:48 AM

  31. Djinn wrote:
    I requoted myself because you didn’t respond to what I actually said, and now again “HARDLY ANY MOVIES, if at all.”

    And I disagree with your assertion. I think that violence is more pervasive and more extreme in movies, as well as other media, than in games. It’s just that games have been an easy target because they weren’t explicitly accorded protected expression status until this recent court case. We’ve also seen more examples from games since they have been in the news more often in the last few years. There’s also the perception that games are still mostly for kids, despite the fact that the average game player is now 37 years old.

    Note that for the elderly you had to go back to a 40 year old movie that was obscure when it came out. Not a lot of this in any actually-popular movies that a minor is likely to see. You’re reaching here, which was my point.

    I picked a well-known movie, some call it a classic, directed by a famous director (Stanley Kubrick), distributed by a mainstream company (Warner Bros.), based on a book that contained probably even more explicit descriptions. Yes, it’s 40 years old; of course, it’d be hard to find a video game 40 years old that featured rape and elder abuse. ;) Of course, doing a search for “elder abuse movie” or “elder abuse game” doesn’t give a whole lot of results that aren’t related to actual elder abuse, most of which are inflicted by caregivers rather than children. :(

    As for torture, in googling I also found “The Torture Game” which was from 2008 and sounds shocking.

    The only game I found with that name was a Flash-based game published on Newgrounds. In other words, this is an amateur game posted by an individual developer; not exactly on the same level as A Clockwork Orange that was distributed through the mainstream system. Also note that the California law would have done nothing to stop kids from playing a Flash game, since the bill only dealt with selling violent games to minors, not access.

    I just “played” it, and in my opinion the game is incredibly tame compared to movies like Saw or its ilk. The first game is more on par with a Tom & Jerry cartoon (or perhaps Itchy & Scratchy) in violence.

    I don’t want minors to play games that cause them to view “beating prostitutes, beating elderly, raping, killing cops, extreme gore…” as entertaining.

    Then you can stop any minors you are responsible for from playing them. I do have to wonder what the rationale is for other people controlling what parents allow their kids to play if peer-reviewed research shows that there is no harm on kids, especially since we don’t also see outcry for violence in other media. Ultimately, I think that most kids are still able to judge the difference between a fantasy world of a game (or cartoon, etc.) better than many give them credit for.

    It has been an interesting discussion, though. Thanks for sharing your point of view.

    Comment by Psychochild — 3 July, 2011 @ 4:46 PM

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