U.S. Supreme Court supports video game freedom of speech

Video game restrictions ruled unconstitutional.

In a decision affirming two lower court rulings, the Supreme Court of the United States ruled that states do not have the right to restrict or prohibit video games sales based on violent content.  Video games are now a legally recognized form of free speech.  The case in question is known as Brown [originally Schwartzenegger] (Governor of California) v. Entertainment Merchants Association, or just Brown V. EMA, docket # 08-1448.

The case was originally argued on November 2, 2010, and although a ruling was expected by June, it was something of a surprise that it took this long to publish. The Court calendar indicated that today was the last regularly scheduled day for making a ruling, and apparently the end of June deadline for decisions, though not inviolate, it taken fairly seriously.  (It would, however, have been amusing if a video game decision had slipped.)

The wait was worth it, as the decision was clear and unequivocal.  It rules, explicitly, that “Video games qualify for First Amendment protection.”  Further, it rules that the proposed law in California (and, by extension, any similar law) does not “satisfy strict scrutiny”, so the original (correct) decision was upheld and the law has been completely struck down.

Read the full decision here (PDF, 485K) [includes 2 page summary]

Additional commentary to follow.

Supreme Arguments

Video Games have their day before the Supreme Court.

On November 2, the case of “Arnold Schwarzenegger, Governor of California, et al., Petitioners v. Entertainment Merchants Association, et al.” (docket # 08-1448) was argued in front of the Supreme Court of the United States.  Oral arguments began at 10:04am and lasted exactly an hour (until 11:04am).  The format was an initial argument by the petitioners (California), followed by a response from the respondents (EMA), and then a rebuttal by the petitioners.  Each side is represented by one (speaking) attorney, and the Justices interrupt them (and each other) at whim with questions and arguments.

As discussed originally in my post, Video Games facing Supreme Court review, the case concerns the law passed in California that would prohibit sales of games with “deviant violence” to anyone under 18 years of age.  The law never went into effect and was ruled unconstitutional by two lower courts before being appealed to the Supreme Court.  Hopefully, as discussed at Meaningful Play 2010, this case will put the legal question to rest once and for all and allow the industry to have an open debate.

Surprisingly, the transcript of the oral arguments in the case (PDF) is actually fairly entertaining to read.  The Justices are nowhere near as dry as one might expect, and there were moments of actual laughter.  The case is also very interesting in the fact that the normal ideological lines of conservative versus liberal seem to break down, so there are no easy predictions as to how individual Justices may vote (and Clarence Thomas did not speak at all).  In fact, press reports differ on which way the Court may be leaning.

Here are a few of my favorite moments from the oral arguments in this case:

“I’m concerned about the producer of the games who has to know what he has to do in order to comply with the law.  […]  But a law that has criminal penalties has to be clear.  And how is the manufacturer to know whether a particular violent game is covered or not?” — Justice Antonin Scalia

“Well, I think what Justice Scalia wants to know is what James Madison thought about video games.” — Justice Samuel Alito

“Would a video game that portrayed a Vulcan as opposed to a human being, being maimed and tortured, would that be covered by the act?” [answer: “No, it wouldn’t…”]  “So if the video producer says this is not a human being, it’s an android computer simulated person, then all they have to do is put a little artificial feature on the creature and they could sell the video game?” [answer: “Under the act, yes…”] — Justice Sonia Sotomayor

For more coverage, you can listen to the story from National Public Radio (or read the NPR transcript) or see the associated stories in the Wall Street Journal and Los Angeles Times, or read the story on Kotaku for a perspective from the game media.

A ruling on the case in expected by June, 2011.

I stand with Stan

A comic book legend weighs in on video games.

As we approach the upcoming arguments before the United States Supreme Court concerning video games and the protection of free speech in this country, legendary comic creator Stan Lee has contributed some historical perspective to the issue, finding a direct parallel with attacks upon the comic book industry half a century ago.  That is why Stan Lee supports the Video Game Voters Network.

If you prefer your commentary irreverent, fast-paced, and visual (or even if not), I recommend viewing this video by Zero Punctuation (a.k.a., Ben “Yahtzee” Croshaw) explaining the importance of VGVN.

Our Games.  Our Rights.

Join Now.

When I testified before the Michigan Senate Judiciary Committee back in 1995 in opposition to proposed game restrictions in Michigan, one Senator (while I was still on the stand) equated the game industry with prostitution and essentially implied that I was a whore. When our government makes judgments that some expressions (such as his) are more worthy of protection than others, such as those reflected in video games (or books, movies, newspapers, etc.), they dishonor the Constitution and a fundamental principle of the United States of America.

By the way, for those who did not follow (or do not remember) the story at that time, Michigan went on to pass the legislation (which was similar to the California law currently under review), it was signed into law, and then it was ruled unconstitutional by a federal court and overturned. In addition to the immense waste of time (not to mention, good will), the State of Michigan was forced to pay an extra $182,349 to game industry groups in restitution for legal fees amassed while opposing this foolhardy bill.

The big legal event is scheduled.

Of course, the really major upcoming issue is Schwarzenegger, Governor of California v. Entertainment Merchants Association (#08-1448) being reviewed by the Supreme Court.  The case is on the docket and arguments are scheduled to be heard on November 2, 2010.  It is supposed to be the first case (of three) presented on that day.

Ultimately, the ruling by the Court could have a substantial impact on the game industry, either by curtailing the repeated attempts by legislators to treat games as an unprotected form of expression and erode the concept of free speech, or (if they rule incorrectly) by opening the door to many more of such restrictions, leading us to war games where soldiers bleed green and mature games being banned from sale altogether.  Fortunately, every court so far has ruled against these kinds of laws, including against this particular law twice previously.

For more information, please see my previous posting, Video Games facing Supreme Court review.

“Why does this matter?  Because if you restrict sales of video games, you’re chipping away at our First Amendment rights to free speech.”Stan Lee

Video Games facing Supreme Court review

The US Supreme Court will hear an appeal about a law restricting video game sales.

Two weeks ago, the United States Supreme Court announced that it would hear an appeal of the California ban on sales of certain “violent” video games to anyone under 18 years of age.

This case is very likely to turn on a decision about First Amendment protections of free speech.  On the one hand, this is a good thing, given that none of these types of laws has ever been upheld as Constitutional.  (At last check, video game and First Amendment advocates were 13-0 against overzealous legislators.)  Additionally, this Court recently held that it is perfectly legal to profit from video sales of animal snuff films (US v. Stevens, 08-769).

The scary part, however, is that this is also a Court that does not really understand current technology, as demonstrated in the questioning (on the same day) during City of Ontario v. Quon, when some of the Justices asked basic information about how text pagers work.  Further, recent Courts (with the same core Justices) have not been reluctant to modify the law of the land based on politics rather than law.

It is a crap shoot and we will have to wait until October for the case (Schwarzenegger, Governor of California v. Entertainment Merchants Association, 08-1448) to be heard, and probably even longer before a decision is announced.

In a recent opinion piece, The New York Times agrees that the law is unconstitutional, concluding that, “The Constitution, however, does not require speech to be ideal for it to be protected.”  Bingo!

Click on the banner below to join a free organization that informs citizens of these kinds of threats to free speech, and specifically to video games being treated differently from other forms of expressive media and entertainment, including films, books, and music.

If you are not easily offended, see this related piece of satire from the Onion. [warning: NSFW!]

Poll: Almost nobody disagrees with not regulating video games.

Earlier this month, U.S. News & World Report posted an opinion poll [still open for votes as of this writing] on its web site, using the misleading title, Violent Video Games: Should Kids Be Able to Buy Them? Of course, the poll question is “Should Kids Not Be Sold Violent Video Games?” which elicits an opposite response from the poll title.

Whether by a deliberate and hamfisted attempt to manipulate the results, or just utter incompetence, the confusing wording opens the results up to interpretation.  More than 70% answered the question correctly, and I estimate that 90% of the other respondents misread the question (missing the “Not” or simply answering the headline), so I place lamina in buccinator and conclude that more than 97% of the public oppose video game regulation.

Take that!  (I can be just as unscientific as the “mainstream” press.)

Duke Nukem For Never

Surprise (NOT)!

As you have probably heard or read, 3D Realms, the developer of (the aptly named) Duke Nukem Forever, has gone out of business. The company website now features a big “Goodbye” message on the front page. The story was reported even in the mainstream media, including this BBC News article.

The release date for DNF has always been “When it’s done.” This scheduling choice seems to put a product on a slow train to vaporware, and I posted about it being way past expiration three years ago: A Long Time Coming. I could rehash the history, but game industry news site Shacknews has posted an updated article (originally from 2007), The Brief Long History of DNF: Post-3D Realms Edition, detailing a dozen years of unfulfilled promises and hype.

So, now Duke Nukem Forever is finally toast, all of the developers have been laid off, the company is gone, and the product is going to remain unpublished. The saga ends here, right?

Not so fast.

Next comes word that Take Two Interactive, who in 2000 (perhaps unwisely) purchased the publishing rights to this title (from another publisher) for $12 million, and reportedly (probably unwisely) renewed this agreement with 3D Realms in 2007, is now suing for breach of contract. Of course, they (definitely unwisely) never provided any development funding for the title, so there is not much left there to get…

… except the source code. Take Two immediately filed for an injunction to get a copy of the source code “to ensure the code is preserved and remains unharmed” while it prosecutes its lawsuit, as shown in this article about the release of the court documents.

Now it is revealed in this Gamasutra article that “3D Realms has not closed and is not closing” after all. They merely fired (sorry, “let go”) the entire Duke Nukem Forever development team due to lack of funding. Still, they (i.e., unnamed 3D Realms representatives) “believe Take-Two’s lawsuit is without merit and merely a bully tactic“. Really? Interesting.

Here is what we know:

  1. Company management did not do what it would take to ship this game.
  2. The development team did not do what it would take to ship this game.
  3. The publisher did not provide what it would take to ship this game.
  4. Incompetence reigns in this matter, and there is plenty of blame to go around.
  5. It will probably be another year before this matter is finally settled.

This whole story is a case study in poor choices and a wholesale failure of anybody involved to recognize and acknowledge the [situation] this has become. Trains wrecks are fascinating, though.

Always Bet On Duke.” – I don’t think so.