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Violence and videogames in the Land of the Free
by Joey Núñez
29.6.11

The videogames industry has just won a landmark legal battle which, had we lost, may have seen censorship of videogames becoming increasingly common. If you're not in-the-know regarding the proposed law, or you're unsure about the legal terms making up the full case, Joey Núñez - our only writer who just happens to have a law degree - brings you a 'for dummies' guide to California Assembly Bill 1179.

California Assembly Bill 1179 was a proposed law in the state of California, which would have legally prohibited the sale, or rental of, violent videogames by minors. Under the proposed law, any game in which the option of killing, maiming, dismembering or sexually assaulting an image of a human being was offered to the player, in any shape or form, could be considered as violent, and would have to include a nice big '18' certificate on the packaging. Any publisher or retailer in violation of the law would be looking at a nice hefty fine. Needless to say, the industry was in a bit of a fuss, and it didn’t take long before the constitutional validity of the bill was being argued at the courts.

On 27th June, 2011, the Supreme Court of Justice of the United States issued its decision on the matter. How did the Honorable Justices presiding over the Supreme Court rule? They took the First Amendment, and they used it to bitch-slap the California State Legislature - those are the dudes cooking up these zany laws - across the face, whilst politely indicating to the fine congressmen and women of California that Bill 1179 could 'suck it'.

Okay: so maybe the Justices did not exactly phrase their feelings on the California Bill that way. Or, maybe, they did? Feel like reading through the 96-page decision issued by the Supreme Court to find out? Yeah, I didn’t think so somehow. Luckily for you, I tore through the decision like a first year law school student, and I like sharing. You fine readers may not be clued-up on the legal mumbo jumbo, but as gamers in the know we should all at least be marginally aware of this case which, any way you put it, has produced what can truly be considered a landmark decision for the video games industry, and perhaps the entertainment industry as a whole.

So what exactly is all the fuss about? Let’s break it down for you:


1: Video games are protected by the First Amendment. This is awesome.


The First Amendment of the United States Constitution establishes a nifty legal principle and human right known as 'Freedom of Speech'. The legal theory behind it all is quite deep - and genuinely interesting - but I won’t go into all that here; what you really need to know is that, thanks to freedom of speech, those in power cannot (for the most part) censor what you and I say. We are free to go on television, the radio and online and speak our mind freely about the most diverse topics, without fear of persecution.

The Supreme Court has now made it clear to the rest of the world what we gamers have known for quite some time now: videogames are more than just 'dumb games', but rather are legitimate forms of expression on par with books, movies and plays. Through videogames, designers and developers not only create entertaining interactive experiences but "communicate ideas" and transmit social messages. Videogames are, without a doubt, a form of artistic expression (or can be anyway) and, as such, fall under the protection of the First Amendment and cannot be unlawfully censored by the government. As the Supreme Court so eloquently put it, "esthetic and moral judgments about art and literature are for the individual to make, not for the Government to decree..." In a nutshell, since videogames fall under the protection of the First Amendment, the government cannot restrict or censor games based on their content, unless a restriction can be justified. The proposed bill sought to do just that, making it illegal for millions of gamers to access the content of hundreds of games just because a game could be considered 'violent'. The fact that the Supreme Court made it known that this was a load of crap is a very good thing, both for us gamers and the industry as a whole.


2: God of War and GTA are not responsible for the psychopaths. So quit whining.


So, when exactly is censorship a valid option? Well, when the government seeks to restrict Freedom of Speech based on content, a restriction can only be valid if it can pass the test of strict scrutiny, which basically means those in power have to justify that the restriction is motivated by a compelling government interest, which can only be accomplished by the proposed restriction.

When asked if the proposed California bill passed the strict scrutiny test, the Supreme Court responded with a resolute "Hell NO, bitches!"

Or something along those lines.

See, the fact of the matter is that the California legislature was unable to prove that there was any significant, direct, causal link between violence in videogames and harm caused to minors. They were simply unable to provide any solid evidence which showed that violent games make minors more aggressive. I have a theory which could explain this: violent videogames do not make minors substantially more aggressive. I’m sure there are tonnes of troubled teens out there who pile obscene amounts of time into aceing the perfect headshot online, but I’m just not buying the idea that the game that a teen is playing is the source of their troubles. Luckily, the Supreme Court wasn’t buying it either.


3: Dear Californian douchebags: enough with the witch-hunt already. Sincerely, videogames.


The California Legislature claims that it has the best interest of minors at heart - the children must be protected from the violence! Alright then. So, I’m guessing this nifty bill also censors anything at all DragonBall related, right? Power Rangers is also on the black list, correct? Oh, and those god-awful fairy tales with all the sword fights, enchantments, melting witches and dying princesses are probably headed out the window.

They’re not? Well then, I call bullshit. And guess what - the Supreme Court agrees.

I’m going to go ahead and quote those in the robes, who - when referring to the proposed bill - pointed out that it "...is wildly underinclusive when judged against its asserted justification...", and that this underinclusiveness "...raises serious doubts about whether the government is in fact pursing the interest It invokes, rather than disfavoring a particular speaker or viewpoint". In short, the Supreme Court concluded that California had singled out the video games industry for disfavourable treatment, in comparison to the treatment offered to booksellers, cartoonists and movie producers, and there is simply no persuasive reason for this to occur.

Long story short: you fail, California. Now stop picking on video games.

I’m not going to sit here and justify the fact that millions of underage kids are playing highly inappropriate games. I personally have a big problem with this issue. However, creating an unconstitutional law unfairly aimed at the industry was not the solution. The ESRB rating system does a pretty decent job at rating games and provides parents with the tools they need to make sure that their children aren’t nailing gruesome headshots and picking up virtual hookers before they should be. Censorship is not only generally lame, but it is legally unsound and sets dangerous precedents. In my opinion, achievements and trophies are in order for the Supreme Court. You did well, oh ye honourable robed ones. You did well.


What do you think of the Supreme Court decision and the proposed bill? Sound off in the comments section below.

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- Joey Núñez

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