U.S. Supreme Court hearing case on violent video games

[Raen]

So it seems that California is attempting to make the sale or rental of violent video games to minors a crime. Personally I'm completely in favour of this, it's the way that some games (and I feel all games should be as DVDs are) in the UK are restricted, and it makes complete sense to me. Of course it doesn't actually stop the sales, but it works as a better preventative measure.

However it seems that the US Constitution and the right to free speech doesn't agree with me, hence the legality of California's decision being taken to the Supreme Court (http://content.usatoday.com/communities/gamehunters/post/2009/05/67062931/1). Apparently it's the first time the court has heard a case on violent video games, and while this isn't exactly the kind of violent video game case I'd always imagined going that high, it certainly is interesting.

[Ox]

No, it's not.

Look, there are nine people on the U.S. Supreme Court. They all have to attend argument for and rule upon every case that the court decides. But there are tens of thousands of court cases in America every year. Obviously, SCOTUS cannot and does not hear every case: out of the 10,000 or so cases each year where one party asks the court to hear it, the court hears only about 80 or so.

SCOTUS has what's known as "discretionary jurisdiction" over most stuff: it can refuse to hear cases for any reason at all. In order to ask SCOTUS to hear a case, you file a petition asking them to invoke their discretionary jurisdiction, which is technically called a petition for certiorari (or cert petition for short). As the above statistic makes clear, these are usually futile. But that's all that's happened here: California has filed a cert petition, saying, "Gee, this case is super-important and interesting and it'd be totally awesome if you considered it." Now opposing counsel will write a petition opposing cert, saying effectively, "No, dude, this case is so dry and boring and irrelevant and not worth your time." Then SCOTUS will likely deny cert, meaning there will be no decision and the lower court's decision will stand.

Maybe this will eventually turn out to be a news story, but not yet. So far, it's gotten no further than half the cases Jack Thompson pursued.

EDIT: To be clear, this filing isn't even technically an appeal; it's a petition for permission to appeal. And while those usually fail, it is a petition following a decision from the famously-batshit Ninth Circuit, on what does seem to be an awfully broad reading of the First Amendment. So I'll revise my estimate of the chances of a grant of cert upward somewhat, but I still don't think this is a story yet.

[Raen]

Legal stuff

Thanks for the clarification Ox :) I had a feeling you'd have something to say. While I am interested in if it gets heard, I'm more interested in the issue itself. I probably should of gone with a different title, but thought the law was probably pretty old news. If a mod is willing to change the title to better reflect both issues, then please do so :)

I also agree that it's a very broad reading of freedom of speech. As a layman I don't even really see how it applies.

[Ox]

Basically, the Supreme Court said a long time ago that states can restrict minors' access to sexually-explicit material. That's why I couldn't buy Asian Butt Sluts LXI when I was 12. But the case specifically referred to sexually explicit material; if it wasn't sexually explicit, then there wasn't much reason to restrict kids' access.

Now California is saying, wait a sec; all the rationales for restricting sexually explicit material to adults also apply to violent material. Can we forbid minors from seeing really violent stuff, too? The Ninth Circuit basically said, "Well, that old case said 'sexually explicit.' So no."

[Raen]

Basically, the Supreme Court said a long time ago that states can restrict minors' access to sexually-explicit material. That's why I couldn't buy Asian Butt Sluts LXI when I was 12. But the case specifically referred to sexually explicit material; if it wasn't sexually explicit, then there wasn't much reason to restrict kids' access.

Now California is saying, wait a sec; all the rationales for restricting sexually explicit material to adults also apply to violent material. Can we forbid minors from seeing really violent stuff, too? The Ninth Circuit basically said, "Well, that old case said 'sexually explicit.' So no."

So the Ninth Circuit have basically not heard of interpretation then?

[Ox]

On the contrary: the Ninth Circuit is famed for its extremely, ah, aggressive technique of interpretation... when it wants to interpret something. But the Ninth Circuit is also pretty liberal. Why would it want to extend a Supreme Court ruling that restricts the reach of the First Amendment?

[Raen]

On the contrary: the Ninth Circuit is famed for its extremely, ah, aggressive technique of interpretation... when it wants to interpret something. But the Ninth Circuit is also pretty liberal. Why would it want to extend a Supreme Court ruling that restricts the reach of the First Amendment?

Ah ok that makes sense. I apologise for any glaring errors in my assumptions, not being from the US I don't take note of a lot of these things.

[ClannerDelta]

Ah ok that makes sense. I apologise for any glaring errors in my assumptions, not being from the US I don't take note of a lot of these things.

Then you're already half American.

[Johan]

The Ninth Circuit is what keeps the Supreme Court in business. I love the Ninth Circuit. They're always good for a laugh.

[Ultima Thulian]

Yada yada legal mumbo jumbo blah blah.

Fuck that. I wanna talk about Asian Butt Sluts LXI. :D

[Sandman]

Yada yada legal mumbo jumbo blah blah.

Fuck that. I wanna talk about Asian Butt Sluts LXI. :D

No you don't, Asian Butt Sluts started going downhill around ABS XXII.

[Ox]

Fuck that. I wanna talk about Asian Butt Sluts LXI. :D
They brought the original cast back together, a la Star Trek VI: The Undiscovered Country. They were a little creaky.

[National Kato]

They were a little creaky.

I'm sure you mean 'leaky.'

[alienmastermind]

They brought the original cast back together, a la Star Trek VI: The Undiscovered Country. They were a little creaky.

And in a nod to Gene Gobblesberries, they called it The Undiscovered Country.

[National Kato]

And in a nod to Gene Gobblesberries, they called it The Undiscovered Country.

Are you sure they spelled 'Country' with an 'O?' ;)

[DylonCorp]

Are you sure they spelled 'Country' with an 'O?' ;)

I think that was the one where they tried to penetrate the galactic barrier.

[alienmastermind]

I have derailed the thread.

Sorry.

Let us talk about the Freedom Of Speech, and how violent video games affect kids. Well, in all honesty, there's not a single research paper by a credible source that points to violence in media equating to real life violence.

Exposing children to explicitly violent material or explicitly sexual material is ethically and morally wrong, in my opinion, so keeping it from them is the responsibility of the parent, and not the guy behind the counter at the Blockbuster. I mean, renting Knife Stabber 6: Call of the Stab-Master and leaving it in my living room, a kid could pick it up and play it. But it's not Jimmy the Clerk's responsibility once it leaves the store. Does he have the right to not rent me the game because my kid's with me?

Or the guy at GameStop? Can he say 'Nah, you have kids, no GTA for you. Here's Petz.'

I think just arresting the clerks, or fining the stores is too punitive for stores that sell material that may not be appropriate for minors, as they cannot control product once it's sold.

It's a sketchy issue.

[Ox]

Exposing children to explicitly violent material or explicitly sexual material is ethically and morally wrong, in my opinion, so keeping it from them is the responsibility of the parent, and not the guy behind the counter at the Blockbuster.
These first and last clauses of this sentence are in tension. If exposing kids to particular material is morally wrong, why is the guy behind the counter at Blockbuster permitted to do it? The First Amendment is designed to protect socially valuable speech. As a judicial doctrine, courts also protect some valueless speech (e.g., smut) as a prophylactic to ensure there's no encroachment on valuable speech. Prophylactics are great, but nobody wears eight condoms at once: there's a limit to how much you need, and a cost-benefit analysis to consider. Isn't the distribution of violent material to kids something that's very bad (high cost) that contributes only a very little bit to the protection of valuable speech (low benefit)?

[Inspector Fowler]

What's funny to me is how similar this debate is to the old comic-books, movies, etc "won't somebody think of the children" bullshit.

Look at Dave Grossman. I have read some of his books. He seems like an intelligent guy, and some of the stuff he writes helped me get a better mindset for safe patrol work. In some areas he uses excellent research and anecdotal evidence together to come up with great ways to help people. Reading his books is a far sight better than some of the other crap available for cops or soldiers.

But when it comes to video games, he'll throw in a whole chapter or two making broad claims based on just one or two incidents and with virtually none of the research and evidence that makes the rest of his book so compelling. For example, he claims that video games are training school shooters because it instills a "game over" instinct in them. He cites one or two incidents where a principal or teacher forcefully told a shooter to stop, and he did - Grossman then theorizes that by having gameplay interrupted so many times by character/avatar death, the teacher was able to substitute their authority for that instinct and stop the killings.

Not only is that unsupported, but it isn't accurate - I would imagine most of the (many) teachers and staff shot in school shootings yelled "no" with no result.

Given the excellent level of detail paid to issues in the rest of his writing, I pretty much assume Grossman writes this extra shit to sell more books. The rush to cash in on making video games the villain would be entertaining if I had a different hobby!

[alienmastermind]

The First Amendment is designed to protect socially valuable speech. As a judicial doctrine, courts also protect some valueless speech (e.g., smut) as a prophylactic to ensure there's no encroachment on valuable speech. Prophylactics are great, but nobody wears eight condoms at once: there's a limit to how much you need, and a cost-benefit analysis to consider. Isn't the distribution of violent material to kids something that's very bad (high cost) that contributes only a very little bit to the protection of valuable speech (low benefit)?


Yeah, Ox, I agree with your statement, but my point was that once the guy at Blockbuster hands over the game or movie to an adult renting it, his responsibility of the handling of that media is gone I'd think, and making the guy responsible for the media once it's out of the store in the hands of a legal buyer seems draconian and egregiously unfair.

I also don't think we should be holding him accountable for ne'er do wells that rent for their younger siblings or kids, or worse, for neighborhood kids or strangers. The guy who is the problem here isn't the one making minimum wage, it's the guy renting the game for his kids or other kids.

I also think that while the First Amendment is designed to protect valuable speech, the text doesn't delineate what speech would be considered valuable, though I could be wrong on that, I'm not looking at a Constitution right at the moment.

I happen to believe that 'Jammin' In New York', George Carlin's filthy and hilarious comedy album is valuable speech, even though it uses filthy language and crude humor.

I also think that unpopular speech, even hate speech, is valuable speech, even if only to demarcate a line of morality or shared standard of communication and social interaction...knowing where 'too far' might be, or knowing what crazy things people might say. We have a right to speak, not a right NOT to be offended.

[TheKeck]

Yeah, Ox, I agree with your statement, but my point was that once the guy at Blockbuster hands over the game or movie to an adult renting it, his responsibility of the handling of that media is gone I'd think, and making the guy responsible for the media once it's out of the store in the hands of a legal buyer seems draconian and egregiously unfair.

I also don't think we should be holding him accountable for ne'er do wells that rent for their younger siblings or kids, or worse, for neighborhood kids or strangers. The guy who is the problem here isn't the one making minimum wage, it's the guy renting the game for his kids or other kids.

Am I crazy when I say that I don't think this law has anything to do with what you're saying? Isn't it only preventing the minimum wage guy from renting/selling directly to a minor with no adult present?

[Ox]

Yeah, Ox, I agree with your statement, but my point was that once the guy at Blockbuster hands over the game or movie to an adult renting it, his responsibility of the handling of that media is gone I'd think, and making the guy responsible for the media once it's out of the store in the hands of a legal buyer seems draconian and egregiously unfair.
Keck's right, nobody's talking about that.

I also think that while the First Amendment is designed to protect valuable speech, the text doesn't delineate what speech would be considered valuable, though I could be wrong on that, I'm not looking at a Constitution right at the moment.
Sure, but you're not a textualist.

I also think that unpopular speech, even hate speech, is valuable speech, even if only to demarcate a line of morality or shared standard of communication and social interaction
Okay. I agree that commentary on political matters or other matters of public import is inherently valuable speech, even when wrong or offensive. "Valueless speech" is usually deemed speech that makes no attempt to communicate a fundamental truth about the human condition. So Communist speech is valuable, but a nonsense string of curse words is not. Carlin arguably used profanity to shed light on important aspects of the human condition and soul, so it would also be valuable speech. Your average videogame, however, would not (although yes, some videogames do offer genuine commentary).

[alienmastermind]

Am I crazy when I say that I don't think this law has anything to do with what you're saying? Isn't it only preventing the minimum wage guy from renting/selling directly to a minor with no adult present?

Yes. Actually it doesn't even do that, Keck. I was worried about the 'requiring proof' portion of the law, which would affect the clerk, but then read this nugget:

1746.3. Any person who violates any provision of this title shall
be liable in an amount of up to one thousand dollars ($1,000), or a
lesser amount as determined by the court. However, this liability
shall not apply to any person who violates those provisions if he or
she is employed solely in the capacity of a salesclerk or other,
similar position and he or she does not have an ownership interest in
the business in which the violation occurred and is not employed as
a manager in that business.

So, if I own GameStop, and tell only clerks to sell games at the register, leaving my managers to handle returns and shelving, am I now bulletproof? I mean I could sell 'Hooker Killer 2: The Extra Killening' to 8 year olds and be fine, since the clerks are the ones selling the games.

But, here's the funny thing about legalese.

"Person" means any natural person, partnership, firm,
association, corporation, limited liability company, or other legal
entity.

So, Ox, I have need of your expertise...if the clerk sells it, he's not liable. But since he's not the owner of the game, the company is, doesn't the violation move up the ladder to the corporation owning the store?

This is just a government mandated 1000.00 shakedown of gamesellers, it seems, as the requirements of proof of sale of the game seem to be outlined as 'An adult tells the DA that the game was purchased from a store by a minor' and the proof that the store requires is the state identification of each sale of violent games. We don't even do that for alcohol and porn, man.

[alienmastermind]

Carlin arguably used profanity to shed light on important aspects of the human condition and soul, so it would also be valuable speech. Your average videogame, however, would not (although yes, some videogames do offer genuine commentary).

The average videogame is a hard thing to nail down, Ox, even by people who play them. The rise of the Wii, and the seeming popularity of its casual gaming and fitness titles suggests that people are finding something of value in the stories being told within them. But even Mega Man has a story that sheds a tiny bit of light on the world we live in with a fairly thin commentary on humanity and the dependence on machines that we have.

Even games like GTA IV provide a story and an actual commentary on society in America. Especially GTA IV, which has a story with a morality and a 'Eastern Promises' kind of feel to it, bordering on an artistic achievement, even while containing violence, each violent thing you do has weight, and the police inevitably come to stop the mayhem in a Kobayashi Maru-like neverending escalation of retaliation...

But we're talking about violent video games, here, the ones like Manhunt that are designed simply around the titillating aspects of violence, and offer nothing.

Games like Psychonauts, Beyond Good and Evil, or Halo even have violence, and stories that entertain, and do shed some light on the human condition through humor or storytelling (no matter how wafer-thin). Some violent games have long, drawn-out, over-wrought stories like Metal Gear Solid, or some are truly violent and yet speak to real-world issues and tell very poignant stories, like Call of Duty: Modern Warfare.

Then, there are games that do nothing but entertain and are violent, like God of War...but the same can be said of film or television. Not every film is meant to reveal the nature of man, sometimes we just want to hear babies talk like Bruce Willis.

Gaming has been my hobby since I was five. My first game? Combat. On the 2600. I guess my dad was one of those ne'er do wells that give their kids violent games. :)

[BigJonno]

I'm firmly behind restricting the sales of violent media to kids. Horror movies/games as well, for that matter. I don't think for a minute that any game or film is going to lead to real life violence, quite the opposite, I believe that fantasy violence is an important part of growing up and incredibly cathartic for adults.

However, I think the decisions about what children do see should be up to the parents and legally restricting sales is a sensible way of helping parents keep in control. It also supports gamers when someone decides to get on the soapbox about violent videogames. Being able to say "Actually, it's illegal to sell these games to children" is a pretty damn good arguement.