Nine U.S. states have filed a brief with the Supreme Court in support of the videogame industry’s fight against a California law that would prohibit the sale of M-rated games to minors.
It’s easy to think sometimes that the relationship between government and the videogame industry is one of “us vs. them,” as legislatures at all levels do their worst to stifle the First Amendment rights of a medium they just don’t get. But the reality is a little more complicated than that, and while 11 states have come out in support of California’s contentious videogame law, nine others have just signed up to oppose it.
Rhode Island Attorney General Patrick Lynch filed a brief with the Supreme Court on behalf of Arkansas, Georgia, Nebraska, North Dakota, Oklahoma, Puerto Rico, South Carolina, Utah, Washington and his own state, pointing out that the Supreme Court itself has warned that previous cases setting specific exceptions to free speech “cannot be taken as establishing a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.”
“The road to unconstitutional and unwise over-regulation is paved with good intentions,” the brief states. “Though [the California law] fixes nothing, it raises the specter of censorship for any media that finds itself at the center of a politically charged societal debate. This Court has consistently recognized that the Constitution blocks entry to this slippery slope.”
The brief cites data indicating that in spite of the hysteria over a presumed “causal connection” between videogames and real-world violence, the reality is entirely different. “In the videogame era, adult and juvenile crime rates have steadily declined nationwide,” it says.
On top of everything else, there are also pragmatic problems with allowing the law to stand. “In addition to the unenviable task of determining which games meet the highly subjective standards of violence (without artistic merit) disapproved by the Act and the burden of prosecuting costly criminal suits, state officials will run the risk of civil liability resulting from the classification of certain games as ‘patently offensive’ and lacking any ‘literary, artistic, political or scientific value for minors’,” the brief warns.
“Those aggrieved by a negative classification will doubtless run to court and force States to incur significant additional costs by claiming not only constitutional violations but business damages through overweening governmental interference as well,” it continues. “The law enforcement cost outstrips the questionable benefit of having the government itself dictate and enforce another minimum age requirement in retail stores.” It even suggests that the law could “unintentionally turn a baseless ‘Twinkie Defense‘ into an increasingly functional criminal defense.”
The willingness of various States to wade into the fray reflects the fact that this case is really about more than just videogames; it’s about the sanctity of the First Amendment. The Motion Picture Association of America stated as much in its own brief to the Court in support of the game industry. “If the Court’s reasoning is not confined to the particular medium of video games, state and local governments could attempt to impose similar restrictions on depictions of violence in other media, including motion pictures,” it said. “Such restrictions would have an obvious chilling effect, particularly given the inherent amorphousness of restrictions of that type and the potential for a patchwork of nationwide regulation.”
Whatever their reasons, I have to admit that it’s kind of comforting to have a few old dudes in nicely pressed suits on our side of the aisle. The Supreme Court is scheduled to hear arguments on California’s law banning the sale of videogames to minors on November 2.