Publisher's Note

Publisher's Note
Schwarzenegger vs. Interactivity

Alexander Macris | 19 Jul 2010 13:00
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For the past two years, I have been leading a not-for-profit organization called Triangle Game Initiative, charged with building up the Raleigh-Durham interactive software industry. We had our breakthrough success this past Monday, July 12th, when the North Carolina legislature passed a bill providing financial incentives for "interactive digital media" companies (including videogames, immersive learning products, simulators, and more) similar to those enjoyed by our competitors in Georgia, Louisiana, and Montreal. Once Governor Perdue - a vocal supporter of digital and interactive media - signs the bill, it'll become law.

But while we're celebrating our victory here on the East Coast, dark clouds are gathering on the West. The State of California has spent the past five years attempting to restrict the First Amendment rights of game developers and consumers. On the very same day that North Carolina passed a bill to support the game industry, California filed a written brief with the United States Supreme Court arguing for the reinstatement of a law that made it illegal to sell or rent "excessively" violent videogames to minors.

The Supreme Court case in question, Entertainment Merchants Association (EMA) v. Schwarzenegger, is an extremely important one; one that will have far-reaching consequences for the U.S. gaming community and beyond. Indeed, it has the potential to hinder America's Free Speech itself through the censorship of interactive media.

Judges have repeatedly struck down the Californian law as unconstitutional - initially by District Court Judge Ronald Whyte in August 2007, and again by a three-judge panel of the 9th Circuit in February 2009. The 9th Circuit rejected the state's attempts to link games and real-world violence as "based on correlation, not evidence of causation" with "significant, admitted flaws in methodology." The Court also rejected as unconstitutional the law's requirement that retailers label "violent" games with a four-inch square label.

In striking down the law, the 9th Circuit followed a trend set by nine previous federal court decisions, all of which have uniformly held that videogames are protected speech, just like other content such as books, comic books, movies, and music. But on April 26th, the Supreme Court of the United States granted the state of California's petition for it to review the decision.

It's not difficult to understand the Court's decision to review. The question of whether videogames are protected speech has, after all, come before the federal courts ten times in the last few years, and each time the decision has hinged on a matter of Constitutional interpretation. Up until now, these court cases have largely only interested creative artists who make videogames and the consumers who buy them.

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