Warning. Inappropriate Materials Here

Your Day in Court


The black and white PARENTAL ADVISORY STICKER (as seen on the left) was a staple of my adolescence. It seemed that a great deal of the music my peers were interested in were Hester Prynne’d by that stark label. Very few (if any) parents gave the thing a second look. Very few (if any) music outlets would deny a sale based on the patron’s age. As a method of regulation, the label was a joke. As a signal of disobedient youth, it became a wild success. Lacking any serious enforcement or consequence, the warning instead became a kind of fashion statement, a signal that your latest purchase would have some profanity or lewd conduct layered somewhere between the chorus and backing vocals.

In contrast, my late teens were ruled by the Motion Picture Association of America’s film-rating system. By the time I was old enough to be interested in a flash of skin or an uncomfortably gross sequence, the MPAA had begun to actively enforce the age restrictions built in to their ratings. Nudity, excessive gore, particularly florid language? All required the accompaniment of an adult, 18 years or older. Without the kind adult companion, I was relegated to gems such as Space Jam or Turbo: A Power Rangers Movie.

While the highly-alluring “R” (Restricted) movie was certainly tempting, I never had the nerve to sneak in to movies which were out of my classification league. The possibility of public shaming -- or, worse, having my parents called in to hear how I juked the law -- became mortifying death sentences for my young ego. My own fear served to keep me in check.

Now that the issue of “appropriate age” faces gaming (again!), and that the Entertainment Software Ratings Board, by proxy, is feeling a moment in the spotlight, I’m beginning to feel like I’m on a carousel ride.

Virtually every entertainment medium has, at one point or another, suffered the accusation of corrupting the minds and morals of our youth. Comics, through their seduction of the innocent, were purported to promote degenerate sexual values and homicidal urges. As a result, the industry adopted a self-regulating Comics Code Authority. In the intervening time between the adoption of the CCA and the present, the idea that a code should govern the content of our funnybooks became positively quaint. While advances in story, art and design have made the modern comic more graphic than anything that spawned the CCA, there’s an accepted value to the medium as an entertainment vehicle. Perhaps as important, the image of a comic fan has shifted from gangly eight year-old to pudgy Comic Book Guyish young adult.

Likewise, advances in resolution, design and imagery have made it possible for games to push convincingly graphic simulacra onto their audience. Night Trap and Mortal Kombat helped create this hysteria with their visual shock, despite the low-res nature of their age. Grand Theft Auto III brought the idea of unrestricted immorality to the table, shifting attention away from what children see. It has since become a question of whether these experiences color the way children may act. And while gaming has become a more mainstream pastime -- thanks in large part to casual upticks from the Wii and Farmville, and from the massive success of Rock Band and Guitar Hero -- the idea of gaming is still framed as an immature “kid” thing to do.

The arguments that the U.S. Supreme Court is hearing today boil down to some rather heady items. Can the state of California express a reasonable interest in regulating the sale and purchase of video games? If answered in the affirmative, this places games on an analogous scale to alcohol, pornography and tobacco (in regulatory terms). Such an answer would also strip video games from any reasonable claim to artistic or literary merit.

To put that in context, something like the exceedingly controversial novel Fanny Hill could, under the terms outlined above, be considered devoid of any artistic merit. Ditto for Uncle Tom’s Cabin, which was briefly contested in the U.S. thanks to its anti-slavery views. And A Clockwork Orange, as a film, could be considered little more than an early predecessor to Saw or Hostel.

When applied to literature, the implications behind Schwarzenegger v. EMA are chilling. When applied to digital media (re: video games), a kind of fugue clouds over what would otherwise be a significant act of censorship. For all the effort that goes into defending games as High Art, few would say that the experiences are completely lacking any sort of artistic merit. Katamari Damacy may not read like Poe, but the combination of art direction, music and user experience blends to create a significant statement. Likewise, Metal Gear Solid may not be the most accessible work ever put to silicon disc, but scenes of torture and graphic brutality don’t invalidate Hideo Kojima’s musings on nuclear proliferation, genetic engineering, and life in a new millennium.

Keep in mind that the definition of art here hangs on the assumption that shocking or graphic scenes can not promote any worthwhile discussion. By that same token, Ingmar Bergman’s The Virgin Spring, which features the rape of a young woman, loses any value as a commentary on vengeance, justice, and faith. We must wonder how far some are willing to go to categorize something as destructive to the young mind. Heavy Rain a game praised for its narrative, features drug use, nudity, scenes of torture and death. Would others dismiss the whole because of its constituent parts?

Never before has the concept of artistic value in games been so essential.


I attended the Oral Arguments (exciting in person!) and wrote up a summary for my friends, some of whom are lawyers, but didn't see this thread until now. Still might be worth posting, so here's the paste-job:

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I attended the Oral Arguments at the Supreme Court today.


Here are my thoughts:

Oral arguments for the Schwarzz v. EMA were phenomenally entertaining. Not only that, but some folks had brought some signs outside: one with an image of Terminator 2 (the film) labeled LEGAL in block letters, and on reverse side, image of Terminator 2 (a game version) labeled ILLEGAL? in block letters.

As to the case, CA's lawyer was not very well prepared, not defending the statute in so far as being capably able to defend why games are so special as to need regulations that would not apply to literature, music, or film. Justices, especially Breyer and Scalia, lambasted him with questions about ambiguity in definitions and classification of standard violence games v. morbid regulated violent games. CA counsel at one point argued that games to be censored are those that meet certain definitional threshold of violence (graphic nature against human being, etc.) while just moments later stating that games would not be subject to the regulation if taken "as a whole" exhibited political/scientific/literary/artistic merit. Justice Scalia further opened the can of worms CA did not want to address by suggesting that if harms can be attributed to depictions of violence, that if the state can deny access to that content from retailers to minors, then how about other activities or objects that are also linked to harms? Can state prevent minors from viewing films, etc. in which persons are smoking or drinking? CA was unprepared to answer that performing game actions are different than viewing them, discussing this point once in initial statements but not using this specialness argument in answering the tough questions, as he ought to have done. Instead, CA case presented was very weak, vague, and particularly anti-game for little explained reason.

Highlights: hearing "video games" mentioned explicitly in SCOTUS oral arguments for first time. Also, discussion of "Doom" and "Mortal Kombat", however briefly, by SCOTUS. Q from a Justice (Kagan?) to CA counsel: 'have you played Mortal Kombat, a game I can assure you that many of our [SCOTUS] law clerks have?' audience: 'laugh, laugh, laugh'. CA: 'No, I have not'.

On EMA side, counsel was well prepared and stuck well to his points: that this case is not about the difference between pornography, with substantial regulatory history, and violence, no regulatory history whatsoever; that there are many tools already in place (ESRB labels and warnings, parental controls, parental monitoring, retailer voluntary age checks, etc.) that makes CA law unnecessary and confusing to "manufacturers". EMA counsel could not, though, budge in cases where common sense would dictate that regulation would be reasonable--game of beheading babies--drawing scorn from Justices who wanted to know at what point a governing body should have a stake in regulating violence.

Despite the for-now definitive conclusions among scientists that the body of evidence does NOT support CA's proposition that exposure to violence by playing games is not harmful, Justices at no point expressed confidence in that brief, instead claiming that there's one body of scientists over here, and another body of scientists over there. They fail to realize that the no-harms scientists are of a more prestigious grouping and completely tear down the poorly argued claims from CA scientists. This was barely, barely touched on in oral argument, not argued by either side, only mentioned by a few Justices. Hopefully EMA takes time to clarify the position in further briefs.

PROJECTION: Based on the hostility--mockery, in fact--to CA from all Justices, CA's law will be found to be unconstitutional. The bigger, and more important question, is to what extent SCOTUS will leave the door open to further regulation. All previous courts, federal district and federal circuit, have refused to enforce these laws because they purport to apply a brand new category of regulation to a category of ideas--violence--that has never been regulated, and which is at least as difficult to legally define and categorize, as pornography. Unlike pornography, however, for which there are very few legitimate reasons to allow access to minors, violence, even referenced in those previous cases, is a common theme of human and American life. The question SCOTUS really must face in crafting opinions on this case is: will SCOTUS open the door for the future regulation of violence, however carefully, and if so, will it match the types of content-plus-community-standards tests that are used for pornography? If SCOTUS does open that door, how will states navigate regulation of violence in view that content itself should not be [until science gets way, way more advanced than it is possible to explain now] specific to certain domains (games, films) but not other domains (literature, painting, sculpture)?
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Thanks for sharing that.

Keithustus wrote:

On EMA side, counsel was well prepared and stuck well to his points: that this case is not about the difference between pornography, with substantial regulatory history, and violence, no regulatory history whatsoever

The case isn't about that difference? Then why point out that one has regulatory history and the other doesn't, if it's irrelevant?

Keithustus wrote:

Despite the for-now definitive conclusions among scientists that the body of evidence does NOT support CA's proposition that exposure to violence by playing games is not harmful,

CA's proposition is that exposure to violence by playing games is not harmful?

Dan Hankins