What Does the Future Hold?
The losses in court have not dissuaded censorship advocates from encouraging lawmakers to keep trying to pass these laws. For example, state lawmakers worked with one well-known anti-gaming figure to develop a Bill prohibiting the sale of violent videogames to minors in Louisiana, which cleared the state's legislature in June, 2006. However, a federal court quickly intervened and entered a Temporary Restraining Order barring its enforcement.1 Similar efforts continue in Florida, Utah, Maryland, Virginia, and Oklahoma. Nonetheless, any attempt to equate violence with explicit sexuality will likely be rejected by the courts, given the clear distinction recognized by established judicial precedent.
A. Sexually Oriented Regulations
Undoubtedly, lawmakers will learn from their failed efforts in the courts, and attempt to tweak both their legislative and judicial strategies. One strategy may be to focus only on sexually-oriented video game content. Efforts to restrict erotic videogames may receive a much warmer reception in the courts given the historical precedent referenced above. However, the continued viability of these arguments is not a sure thing. In 2004, the United States Supreme Court rendered its decision in Lawrence v. Texas2 wherein the Court invalidated the nation's anti-sodomy laws. The rationale used by the Court for its decision is important, and may lay the groundwork for a change in the approach to legislation based on enforcement of a "moral code." The majority of Justices in that case found that the government's interest in enforcing morality can no longer justify legislation affecting fundamental freedoms.3 In fact, this revolutionary decision caused Justice Scalia to lament the potential demise of all laws premised on morality, such as those prohibiting prostitution, bigamy, bestiality, and importantly: obscenity.4 Although one district court picked up on this concern, and struck down the federal obscenity statute based largely on Lawrence v. Texas,5 that decision was later reversed by the Third Circuit Court of Appeal.6 The full impact of the Lawrence v. Texas case is not yet known, however, the winds of constitutional change may be blowing in favor of erotic expression.
B. Violence Regulations
Some change could be in the works regarding how violent content is addressed by the courts as well, but that change may be detrimental to the videogame industry. As mentioned above, in striking down previous regulatory attempts to date, courts have largely relied upon the lack of evidence of "harm" allegedly caused by videogame violence. However, family values groups are focused on generating scientific evidence to justify restrictions on violent videogames, particularly with regard to consumption by minors. These groups realize that the courts will not "rubber stamp" legislative attempts to restrict access to videogames just because some county council or state legislature thinks it's a good idea. Moreover, the government will be unable to meet its censorship burden by simply calling some hack psychologist or scientist to the stand to testify as to anecdotal incidents of violent behavior by teens after playing certain videogames. The censors have learned that "real" evidence is required, if the courts are to begin taking their arguments seriously. The industry can therefore expect to see mounting evidence in the form of studies suggesting a link between real world violence, and exposure to violent videogames. The initial studies are starting to come out.7 To the extent that these studies are not discredited – either by challenging their conclusions or their methodology – the government may begin achieving more success in the courts, when seeking to justify violent videogame legislation.
C. A Call to Arms
This should be a call to arms for the videogame industry. A substantial knowledge bank must be generated by the industry's trade groups and leaders, on the issue of whether videogames impact the real world behavior or attitudes of players. Moreover, the opposition's studies and testimony must be critically evaluated and publicly discredited, where appropriate. Widespread dissemination of this industry-sponsored information should occur, to help educate the public.
D. The Court of Public Opinion
Of course, the battles in the courts are only part of the equation, and will never ultimately resolve the issues. This battle between censors and proponents of free expression must be waged and won in the court of public opinion as well. Only when the impetus for passing videogame restrictions dries up, will the legislative and legal battles cease. While certain conservative factions will mount objections to violent or sexually oriented videogame entertainment forever, the majority of lawmakers' constituencies can be educated as to the fallacy of the censors' arguments. Current evidence utterly fails to establish causation between real world violence and videogame consumption. While proponents of regulation will point to occasional cases of violent outbursts sometime after an individual played a violent videogame, the fact that the media consumption occurred before the violence does not mean that the violence occurred because of the media intake. It would be just as reasonable to assume that playing a game of basketball causes violent behavior, if the individual played basketball before the violent outburst occurred. The public will respond favorably to truthful information about videogame consumption.
E. Working with Parents
In order to protect its own interests, the videogame industry must learn to work with parents who desire to shield their children from violent or sexually-explicit videogames. While the ultimate responsibility falls on the parent, a climate of cooperation must be fostered by the industry to facilitate implementation of each parent's decision on behalf of their children. Insufficient and/or misleading game ratings, hidden content, media intake, and questionable marketing activities directed toward children will only lead to an adversarial relationship between videogame distributors and the nation's parents. This will, in turn, lead to more legislative attempts to ban violent and/or sexually-oriented content, forcing an endless round of legislation and litigation. To break this cycle, the videogame industry must collectively ask itself how it can empower parents with sufficient information about videogame content to allow informed purchasing decisions at the point of sale – whether that is a retail location, or via Internet download. It must also re-double its efforts to avoid inappropriate marketing of mature-rated games to children, or through venues populated by minors.
While game-makers view publication of videogames as a right, the government sees it as a privilege – a privilege that the government will be all too happy to take away for political gain. While the courts afford a last line of defense, the videogame industry should heed parents' calls to review marketing practices, effectively label content, and voluntarily regulate point of sale activity before the government finds a way to take control.8
As videogames become ubiquitous in American homes, and as the generation that grew up on modern videogames becomes parents themselves, attitudes will change and conservative hysteria will hopefully be relegated to amusing background noise. However, the videogame industry must become active in protecting its own collective interests to mitigate any damage that could occur before attitudes calcify. Media outreach, governmental relations, symposiums, and other visible efforts to educate the public are critical at this unique juncture in the videogame industry's development. This will drive a wedge between reasonable parents and hysterical censors. If the videogame industry speaks for parents along with children, and is perceived as their ally, the elements of censorship will be left with no support.
Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou, DeWitt & Walters, www.FirstAmendment.com. He has been practicing for over 18 years, and represents clients involved in all aspects involved in the video gaming industry. He recently launched www.GameCensorship.com to serve as a clearinghouse for information relating to videogame censorship efforts. Nothing contained in this article constitutes legal advice. Please consult with your personal attorney regarding specific legal matters. Mr. Walters can be reached at Larry@LawrenceWalters.com, or via AOL Screen Name: "Webattorney."
(1) E. Bangeman, "Federal Judge Issues Injunction Against New Louisiana Videogame Law," ARS Technica (June 20, 2006).
(2) 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).
(3) 539 U.S. at 560.
(4) 539 U.S. at 586-605.
(5) U.S. v. Extreme Associates, Inc., 352 F.Supp.2d 578 (W.D. Pa. 2005).
(6) U.S. v. Extreme Associates, Inc., 431 F.3d 150 (3d Cir. 2005).
(7) E.g., University of Missouri-Columbia Study: Bartholow, B. D., Bushman, B. J., & Sestir, M. A. (in press). Chronic violent videogame exposure and desensitization: Behavioral and event-related brain potential data. Journal of Experimental Social Psychology
(8) Efforts are now under way to have the Federal Trade Commission take control of the voluntary videogame rating system, the ESRB, under legislation recently introduced by Rep. Cliff Stearns (R-Fla.), see: HR 5912, a.k.a. "The Truth in Video Game Rating Act."