In April of this year, the United States Supreme Court announced that they had agreed to hear a case submitted by the State of California over whether or not to legislate the sale of videogames to minors. The case, being called “Schwarzenegger vs. EMA,” is set to be heard later this year.
Court cases of this kind are not unusual; lawmakers have been attempting to legislate federal control over game sales for years. What is unusual is that a case of this kind, which have all previously been easily and immediately dismissed for Federal courts as being in direct violation of the First Amendment to the United States Constitution, is being heard by the highest court in the land.
The Escapist spent some time with The Entertainment Consumers Association‘s Hal Halpin at this year’s E3 talking about what’s at stake in this landmark court case, and why gamers – all consumers, really – should be concerned even if they agree that children shouldn’t play mature-rated games.
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Hal Halpin: One of the key reasons for being at E3 is that we’re trying to meet with all the publishers and make sure they understand that we’re trying to help them with the petition and we could use their help to get the word out to consumers, to gamers.
After a decade of [game publishers] repeatedly saying “We want consumers to come up and help us with these kind of issues” and then recently being frustrated in the media saying “Where are the consumers to help us?” Well, here we are. So, now we’re asking for their help to help us get more people [involved] because the bigger the petition is, the more impactful it will be.
The Escapist: That’s got to be one of the biggest challenges for you guys, because the kind of gamers that would benefit from the ECA’s protection are not necessarily the ones that are reading all the blogs or reading all the websites.
HH: Really, the downside consequences of a loss in the Supreme Court this fall could be staggering and widespread. The more we look at it from a legal, legislative perspective, the more dire it is.
It would have a chilling effect on the media, and we might see different games in different regions with different content – ours being sort of tamped down. The ways in which retailers might sell games could change entirely or change state by state. The ripple effects would just continue from there. It will increase into other forms of entertainment and visual entertainment and it’s really important from all those legal, legislative perspectives.
For me, almost more importantly, this is a real opportunity for us to change the paradigm, change the way people view gaming and view gamers. Here we are, trying for all those years to try and change that perspective and make it so people understand that we aren’t the stereotype, that everyone are gamers. They’re pervasive in society and it’s just as valuable as any other form of entertainment media. This is also an opportunity in that regard to work with the upside of winning with the mass media in order to get that message out.
TE: Can I get you, in your words, to sort of explain what’s going on with this court case and what is actually on trial here?
HH: The most recent [case] was the State of California, which became Schwarzenegger vs. EMA. …. That wording came from Leland Yee, Senator Leland Yee’s – at the time, Congressman Leland Yee’s – opinion that, in his former life he was a child psychologist and he felt pretty ardently that games, because of the interactive nature of them as a medium, were different inherently than passively watching video or passively listening to music. Because of the interactive nature, they should treat it differently because you’re really interacting with what’s going on on the screen.
Having done a fair share of debates with him, I can tell you – I can channel him briefly – and tell you that he feels that if you watch The Sopranos and someone getting killed that it’s a different experience entirely from if you were playing Grand Theft Auto and killing someone in the same sort of scenario. He feels as though that interactivity takes it to another level and therefore is harmful. He uses that as leverage in the bill to advance it through the courts. It came up to the District court level and then was turned down again on First Amendment grounds and then they appealed to the US Supreme Court.
Last September, we were expecting to hear back that they weren’t going to be hearing the case because there was all this precedent before and then just recently, six weeks ago or seven weeks ago, we heard back through the Supreme Court that they were indeed going to hear the case, which was shocking to the industry and to everyone I think. It became a real cause of concern. The next step would be that mid-September, all the different amicus briefs are due and then the clerks and justices will read through them and that will help inform their opinions on background and understanding some of the idiosyncrasies along with some of the basics of the case. And then we go to trial.
TE: There have been a lot of studies on the psychology of behavior and evidence points to the fact that Yee may have a point. Children are psychologically impacted by games. Games are a very psychologically-impacting medium. Why does that not matter in this case?
HH: The vast majority of the studies, frankly, are studies that are value-less because they were done for sensational reasons on short-term impact and they are studying short-term spikes – that adrenaline. That same spike could happen if I just walk up behind you and go “boo.” You’d have that spike of adrenaline, and you’d get that rush and it would go away. You probably wouldn’t be traumatized unless I was really scary. The vast majority of all those studies are worthless.
Media impacts us, it does affect us. It stands to reason that we should study it. But so far the vast majority of studies single out gaming and exclude music and movies and everything else. They are rarely longitudinal in the study period and the ones that are don’t necessarily inform us that it’s bad. We get as much good data as we do bad data.
What we’ve been trying to do in the course of the last five weeks or so is we’ve announced that we’re doing this amicus brief and we’ve announced that we’re doing this petition and why it’s important and that every US gamer of any age can sign onto it. It really just boils down to the fact that we believe games should enjoy the same First Amendment rights as music and movies and shouldn’t be treated and legislated like tobacco, alcohol and firearms.
If you can agree with that basic statement, then you should be signing the petition, if you’re five or if you’re fifty. If you’re a casual Facebook gamer or a die hard first person shooter fan.
TE: It seems fairly simple. “This is an imposition on First Amendment rights, go away, end of story.” It’s been argued over and over and over again, right? But why does it seem so complicated?
The average consumer feels it’s a rather complicated issue. “Children shouldn’t play horrible games.” They’ll agree with that. What is clouding the issue for people on terms of being able to say “I’m going to sign that petition, because, duh.”
HH: Assuming that … there are 50 million gamers in the US, I would say that the vast majority of them look at it and simply say “OK, children shouldn’t be able to have access to mature content, what’s the problem?” The next thing I hear right after that is usually “In the movie theatre, it’s illegal to show an R-rated movie to a minor.” We usually have to have one of the social networking people jump in their and say “No, no, wait a minute. That’s a self-regulatory system, just like ours is.”
Just because the movie theatres have done a really good job over a long period of time of keeping children out of R and NC-17 rated films doesn’t mean that it’s regulated by the government. The difference is significant.
We’re not concerned specifically with the idiosyncrasies of the bill and where signage should or shouldn’t be and whether it should be behind locked glass or any of that. Our concerns are the much bigger 30,000 foot perspective ones of “My god, what happens if this fails?” What happens to us as gamers, as consumers? What happens to our rights? What happens to the way in which we enjoy gaming? What happens to the way in which developers are able to tell their stories? You don’t see those kinds of concerns. It really takes getting over all of those humps until people understand.
The people who are signing onto the petition quickly are likely the ones reading articles on the enthusiast media website and magazines where the editor already understands him or herself. Once they get it and they’re explaining it really well, people get it and they’re through the process already, they sign up. Once they do, a large percentage of them use the tools provided on our website to share it with social media. The vast majority of people signing on are all coming via Twitter, Facebook and all these social media apps because they see other people that they respect signing on and because those people are reading it through editors that they respect.
TE: Can you explain in nutshell broad strokes what’s beyond the hard-to-get-your-head-around, esoteric First Amendment effects – what’s really at stake?
HH: The easiest way to boil it down so that you don’t have to think about it at all, and you want to make a decision about whether this is something you support or not is: If you’re a gamer, and you care about gaming, if you care about a relative who cares about gaming, then this is a no brainer.
The reason why is because if this law passes, if we fail, the repercussions would be profound and significant in ways that don’t impact other forms of entertainment. …. The ways in which it will impact things, it will impact lives of professionals, like the 45,000 people that are here, it can easily impact retail and how you interact with retailers, so instead of shopping for games like you shop for DVDs, you’d have to shop for them like you’d shop for guns.
If that doesn’t bother you, then by all means, ignore us. If that is something that horrifies you in the same way it horrifies me, then please lend your voice to the choir.
TE: It seems that folks like Leland Yee never go away, or if he finally decides that it’s not worth fighting anymore or he retires, that someone else will pick it up.
HH: Leland Yee – he’s already promised to already bring up another piece of legislation if he fails and we succeed in the US Supreme Court. And he said that he would continue to successively do so, each time altering the piece of legislation to make it less likely to be unsuccessful.
Frankly, I can’t imagine the State of California – if it goes all the way to the Supreme Court and is rejected – would permit him to waste the state’s time and money further. I’m not sure it would be good for his career and his constituents would probably think “OK, seriously. Even if we agree wholeheartedly with you, for crying out loud, it’s been to the Supreme Court. We appreciate your heart, but, let’s move on.”
TE: Doesn’t that seem like a gamer mentality in a way, to keep at poking at the problem until you find a solution; just trying every iteration until you find it.
HH: It could just be a stubborn streak that we all have in common.
TE: Maybe that’s the way to find common ground with Yee. “We’re just like you.”
HH: Why can’t we all just get along?
