U.S. Supreme Court considers free speech limits on marketing violent video games to minors

The U.S. Supreme Court will hear a challenge Nov. 2 to a California law that limits sales of violent video games to children in a controversial First Amendment case.  In taking the case, the Court is indicating it may consider new limits to free speech as it applies to children and violence. -db

Wall Street Journal
November 1, 2010
By Jess Bravin

ROCKVILLE, Md.—Videogame designers at ZeniMax Media Inc.’s Bethesda Softworks destroyed a virtual U.S. Capitol, Jefferson Memorial and other landmarks in the Mature-rated “Fallout 3,” which depicts the ruins of post-apocalyptic Washington.

They didn’t bother to obliterate the U.S. Supreme Court. But in the real world, that’s where the $10.5 billion videogame industry faces its greatest threat. On Tuesday, the court’s nine justices will consider whether to strip First Amendment protection from violent videogames that critics say appeal to the deviant interests of children.

A 2005 California law prohibits selling or renting such games to minors based on legislative findings that they stimulate “feelings of aggression,” reduce “activity in the frontal lobes of the brain” and promote “violent antisocial or aggressive behavior.” The law never took effect because lower courts found it violated free-expression rights.

In a 2009 ruling, a federal appeals court in San Francisco said the state provided no credible research showing that playing violent videogames harmed minors, and found the law was an unconstitutional effort “to control a minor’s thoughts.”

The videogame industry says allowing the law to stand could stifle the art form, while the movie business and other media industries worry that a broad ruling against videogames could open the door to restricting their content as well.

The industry says its own ratings system already keeps violent games out of children’s hands. A 2009 Federal Trade Commission report found that videogames had a stronger regulatory code than the movie or music industries, and that retailers regularly enforced age restrictions which limit games rated M (for mature) to consumers age 17 and older.

California argues that the voluntary system isn’t good enough, because some minors manage to purchase M-rated games anyway, and some publishers don’t submit games to the ratings board.

Game makers say that if the California law is upheld, other states and cities would likely follow with their own restrictions. They say big-box retailers where most games are sold might drop titles that carry restricted labels, much as most movie theaters won’t run films rated X or NC-17.

“Suddenly games would become a regulated commodity, like alcohol and cigarettes,” says Ted Price, president of Insomniac Games Inc., maker of M-rated games like “Resistance: Fall of Man.”

“There will be a real chilling effect,” he says. “We will be more conservative in the ideas that we discuss, we will self-restrict for fear of our games falling under the language in this law .”

Backers of the California law say that civilization will survive.

“I wouldn’t compare videogames to Shakespeare,” says James Steyer, founder of Common Sense Media, a San Francisco advocacy group that advises parents on materials it considers child-appropriate.

Since 2001, the Supreme Court has stood by as federal judges have tossed out videogame restrictions in other states. In taking the California appeal, the justices signaled a willingness to consider new limits on free speech—at least when it comes to children, computers and violence.

Courts have refused to treat violent content as they would sexual material, which government can restrict under longstanding obscenity doctrines.

But in recent years the Supreme Court has been taking a more paternalistic view toward youth. In 2007, the high court approved punishing a high school student for hoisting a banner that allegedly made light of smoking marijuana, finding antidrug policies outweighed student free-speech rights.

In other rulings, the court has reduced maximum penalties for juvenile offenders, reasoning they are less culpable than adults because their characters are not yet fully developed.

The California law’s author, state Sen. Leland Yee, 61 years old, is a child psychologist who says videogames are worse than other media because they’re interactive. “When you push a button, you literally are hurting, killing maiming another human being” in the virtual space, the Democrat says.

In “Grand Theft Auto: Vice City,” the game that sparked Mr. Yee’s concern, the player portrays a drug dealer who advances by killing both rival criminals and the police. The San Francisco Democrat says repeated play of violent games desensitizes one to cruelty and instills violent reflexes, which could lead to real-world atrocities like the Columbine High and Virginia Tech shootings.

Videogame makers agree that many of their titles are unsuitable for children.

“My sons”—ages 11 and 7—”have never played anything I’ve ever worked on,” says Pete Hines, vice president for marketing at Bethesda Softworks, a unit of privately held ZeniMax Media Inc.
Since government doesn’t regulate movies or music for violent content, game developers bristle at being singled out.

“We are being questioned at a level where these other forms of media are not,” says Steve Papoutsis, who heads a team of 100 programmers and writers behind the M-rated “Dead Space 2,” set for release in January by Electronic Arts Inc., based in Redwood City, Calif.

“Dead Space” features a protagonist named Isaac Clarke-for science fiction writers Isaac Asimov and Arthur C. Clarke-who gains points by dismembering an army of monstrous necromorphs who attack his space city. Mr. Papoutsis says playing the game is like being a character in gruesome but stylish sci-fi films like “Alien.”

“We want to create a compelling story for people to get lost in and enjoy,” he says.

Nick Wingfield contributed to this article.

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