Under the Same Gun
As it turns out, video games and pornography often face the same criticism, voiced by the same critics. Whether it is condemnation from the so-called Religious Right, or touchy-feely concern expressed by left of center proponents of "Nanny Government" like Hillary Clinton, both industries have come under the gun of newly proposed governmental regulations, legal restrictions and rhetorical recriminations.
Recently, XBIZ sat down with attorney Larry Walters, whose client list includes many adult entertainment and video gaming industry clients, to talk about the common threats faced by those two industries — and the possibility of establishing a joint effort to thwart the attacks made against them.
XBIZ: What are some of the similarities between the approaches taken by antiporn activists and critics of video games who want to see greater regulation imposed on that industry?
Larry Walters: We've been seeing numerous parallels in the tacks taken by the family values groups when attacking the videogame industry as well as the adult industry. Apparently they see violent and sexually oriented videogames as comparable evils. Plus, their "protect the children" mantra works for both adult entertainment and videogames. So, for example, when explicit videogames first gained widespread popularity about 10 years ago, the knee-jerk reaction was to restrict their distribution to minors at the point of sale. Similarly, the first reaction to the proliferation of explicit websites was a complete ban, à la the Communications Decency Act's indecency prohibitions. The censors met with precisely the same fate in court both times — the Supreme Court invalidated the CDA on 1st Amendment grounds, and courts across the country threw out the videogame restrictions on the same basis.
The next approach was mandatory labeling, ratings and age verification. The adult industry saw adoption of both state and federal COPA (age verification) laws, and the introduction of a variety of labeling/ratings bills. The videogame industry faced increased pressure on its ratings entity, the ESRB, and federal inquiry into the ratings process and criticism of the actual ratings categories themselves. Thus far, the respective industries have been able to beat back these efforts, both in the legislature and the courts. Most recently, the Morality-in-Media types are trying to approach this problem from the standpoint of imposition of a "sin tax" or a special tax on the expressive activity. Multiple bills are pending on this issue against both the gaming and adult industries. There are substantial constitutional problems with this effort as well, but we'll need to rely on the courts to sort that out if these legislative tax proposals are ultimately successful.
XBIZ: What can be done to counter the "junk science" that is cited in support of greater restrictions on gaming and adult entertainment?
Walters: Both industries are facing potential serious regulation premised on invalid, un-scientific "junk" studies and reports from so-called "experts." These experts claim that violence and sex change the developing child's mind, and can result in "addiction" to this type of media. Sexual material acts like drugs, and stimulates the pleasure center of the brain like heroin. Violent material causes children to become overly aggressive and do things they would not do ordinarily. None of this has been proven to any degree of scientific probability, but instead is based primarily on anecdotal evidence from emotional cases, which often involve school shootings or child abuse. Unfortunately, lawmakers hear the sad stories, listen to the "experts" with lots of letters after their name tell them they need to do something and they end up passing patently unconstitutional legislation.
The industries need to develop their own bank of scientific knowledge and studies that debunk these unsupported conclusions. The time to develop this information is now, not the 11th hour when we're facing a court hearing on important constitutional issues. There is insufficient time to develop sufficiently compelling evidence in the short period of time after a constitutional challenge is filed. These cases tend to go to hearing in a matter of weeks, and are resolved on an expedited schedule.
XBIZ: In the case of porn, it would seem that there's no practical way to test the theories concerning the effect that viewing pornography has on a child's mind or social development. One can't simply sit around in a clinical environment showing porn to children and measuring the results of that exposure — to do so would be a crime, even in a controlled setting, correct?
Walters: True. Children cannot be shown "harmful" materials in order to test their impact. However, young adults can participate in such studies, and scientists can extrapolate from those tests. But we really don't need a study that says there is no harm to kids from viewing hardcore erotic media. No responsible adult website or videogame company is advocating doing that. They are claiming that violent media does not cause negative brain impacts, and that no harm is caused to adults from erotic materials. Thus far, we must accept the proposition that the government can prohibit children from viewing sexually explicit materials — even in the absence of any direct evidence of harm there from.
XBIZ: In a recent interview at the Game Developers Conference, you talked about the possibility that the courts might shift the standard of review from "strict scrutiny" to the lower threshold of a "substantial interest" type test. As a practical matter, how would that shift take place? I assume that would happen as a function of a conservative court reviewing one of the cases challenging a state's video gaming statute and deciding that something less than strict scrutiny should be applied? Is that most likely to take place at the U.S. Supreme Court level, or could that shift conceivably come from one of the appellate or circuit courts?
Walters: Well, the problem with that question is that in order to answer it, I would have to provide a roadmap for implementing such a disastrous change. I will not do so. I can say that such a change would fly in the face of established law, and thus it would probably take a Supreme Court ruling to create such a dramatic shift in the law.
However, the censors could get crafty and try to pass a law that does not require application of the strict scrutiny test, but instead be evaluated as a so-called "time, place and manner" restriction on speech.
Such restrictions are afforded the "intermediate" standard of review, which is much less speech-protective, and more favorable to the government. This is a constant battle, and as free speech advocates, we routinely push for use of the strict scrutiny test, which virtually guarantees invalidation of the challenged law.
XBIZ: Is there a lesson to be learned from the legal challenges to video gaming statutes that can be applied by adult companies? For example, if adult companies can find a way to add real literary, scientific or political value to their products, could doing so make them a less-attractive target for obscenity prosecution?
Walters: While the two industries are facing common enemies and pressure tactics, the adult industry faces a somewhat different set of problems, given the existence of obscenity laws. Both videogames and XXX media are considered protected speech, unless obscene. However, thus far, the focus of the restrictions on videogames has been on violence — not sex.
That is because there really isn't too much explicit erotic material in mainstream videogames, and there's still somewhat of a public perception that games are for kids. So the same level of violence that would earn a movie a "PG" rating would result in an "M" (Mature) rating for a videogame. "PG-13" violence in a videogame earns an "AO" (Adults Only) rating, which is the kiss of death, since the major retail outlets will not carry AO rated games. There is no logic behind any of this. But the ratings standards have created a de facto ban on a certain level of realism in videogames.
Turning to adult media, the inclusion of serious value is always a good idea, as it makes obscenity prosecutions easier to defend, and less likely to be filed. But since the adult industry deals with sex rather than violence, the government will have more leeway in regulating adult fare given the way the law has developed. Remember, we'd much rather have our kids watching people hacking each other up with chainsaws than engaging in the physical act of love.
XBIZ: Do you think there is potential for collaboration between the adult entertainment and video gaming industries, in terms of combating the establishment of overreaching regulatory measures? What form might such collaboration take?
Walters: There is much the two industries can do with each other, and learn from each other. The same scientific studies will benefit both industries, as both games and adult fare often contain elements of both violence and erotic activity.
So the industries could pool their resources to develop a bank of scientific research and studies, to help debunk the junk science being trotted out by the censors in support of their overbroad regulations.
The family values groups are using similar strategies to attack both industries (i.e., "sin taxes"), and therefore adult and gaming can compare notes and share legal strategies.
Often, an invisible line exists between the two powerhouse industries, and that can only help the censors. Both industries can do a better job of reaching out to the media, and educating consumers regarding the value of their materials, as well as their contribution to the economy.
Often, only one side of these issues is portrayed in the mainstream media. These industries need skilled spokespersons and PR campaigns. Ultimately, this is a battle for the hearts and minds of the consuming public. Once they're sold, the regulators will fall in line and the extremists will be marginalized.