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Tuesday, June 28, 2011

Reactions to the Supreme Court decision on video game violence

Reactions to the Supreme Court decision on video game violence

 27 Jun 2011 10:10 AM PDT

The video game industry is breathing a sigh of relief today with the Supreme Court’s ruling that struck down California’s law banning the sale of violent video games to minors.

Here are some reactions to the decision so far.

Mike Gallagher, president of the Entertainment Software Association, the game industry’s trade group, said in a conference call that it is a “very very historic day for the video game industry.” He said the decision benefits parents, who retain the right to decide what their children can play in the home, and for consumers, who can “enjoy the full range of content that our industry can provide.”

He noted that there were 180 signatories to 27 amicus (friend of the court) briefs on the video game industry’s side. That included the support of 82 social scientists and medical professionals and 10 attorneys general for different states. Gallagher said this was the 13th favorable decision — and most important — in legal proceedings related to violent video games.

“This decision affirms the rights that we believe we have always had,” Gallagher said. Gallagher said the industry will continue to improve its parental controls systems for consoles and the ratings that it applies to games.

The principal author of the California law, state senator Leland Yee, noted that as many as four justices (two dissenters and two with a separate concurring opinion) thought that a law could be narrowly tailored and still be constitutional.

“Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children,” said Yee (D-San Francisco). “As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.”

Yee also praised Justice Stephen Breyer, one of the more liberal justices on the Court and a San Francisco resident, who wrote the dissenting opinion.

“Justice Breyer, in his dissenting opinion, clearly understood the need to protect our children from the harmful effects of excessively violent video games and to give parents a tool in raising healthy kids,” said Yee.

“We are thrilled by today’s news,” said Jennifer Mercurio, vice president and general counsel of the Entertainment Consumers Association, a game industry consumer group. “We had hoped that we would see this decision, and it’s been a long time coming. That being said, there will probably be one or two legislators who attempt to test these new parameters, and the ECA will continue to fight for the rights of entertainment consumers.”

Patricia Vance, president of the Entertainment Software Rating Board (ESRB), heads the industry group, which rates video games. She said in a statement,  “ESRB welcomes the Supreme Court’s decision in this case, especially given its validation of the ESRB rating system as an effective and reliable tool that parents use to decide which video games are appropriate for their children and family. Today’s decision acknowledges the value and effectiveness of the ESRB rating system, the Federal Trade Commission’s positive assessment of our self-regulatory regime, and the latest research showing that game retailers overwhelmingly enforce their voluntary store policies regarding the sale of Mature-rated games. In striking this law the Court has made clear that the video game industry effectively empowers parents to be the ones to decide which games are right for their children.”

Vance added, “The most constructive means of ensuring that children play age-appropriate video games is to educate parents about the tools at their disposal, including ESRB’s two-part rating system (age categories and content descriptors) and rating summaries available at ESRB.org and via a free mobile app. We remain eager to work with government officials, legislators, parents groups and any others who wish to participate in or otherwise support these constructive efforts, which achieve the intended goal without infringing Constitutional rights.”

The Center for Democracy and Technology, a tech lobbying group that supported the video game industry, applauded the decision and what it means for online content as well.

“We are very pleased that the Supreme Court has embraced the idea that voluntary ratings systems are one of the best ways to assist parents in determining what kinds of content their children can view,” said John Morris, CDT General Counsel.  “The video game industry continues to develop user empowerment tools that will help parents achieve this goal in a much more effective — and constitutional — way than the California law.”

Common Sense Media’s chief executive James Steyer, said in a statement, “Today’s decision is a disappointing one for parents, educators, and all who care about kids. But the fight is far from over. Advocates for kids and families can work within the scope of this ruling to protect the best interests of kids. An overwhelmingly high percentage of parents would support a bill that would prevent their kids from walking into a store and buying the most ultra-violent and sexually violent of video games. That decision should be in the hands of parents, not kids or video game vendors, and certainly not the video game ratings board, which recently approved the Dead Space 2 ad campaign that clearly markets a Mature-rated game to kids. We respectfully disagree with the Court when it comes to their analysis of the First Amendment rights of children and families — this is a sanity issue, not a censorship issue. If parents decide a violent game is okay for their kid, that’s one thing, but millions of kids are not able to judge the impact of ultra-violence on their own. Today, the multi-billion dollar video game industry is celebrating the fact that their profits have been protected, but we will continue to fight for the best interests of kids and families. Moreover, we look forward to working with national and state policy makers on another common sense solution in the very near future.”

Ahsan Shaikh,  a video game patent attorney at McDermott Will & Emery, said, “With more spotlight on video game violence, the time is ripe for developers in the industry, both hardware and software, to respond to the increasing attention on video game violence.  Whether it’s an innovation in content restriction or an alternative to displays of violence, the developer that addresses these concerns and patents their innovation will gain a controlling position in the industry now that parents are more acutely aware of the violence prevalent in video games their children have access to.”     

The video game violence arguments that mattered to the Supreme Court

 27 Jun 2011 09:49 AM PDT

Here’s a breakdown of the arguments that mattered to the Supreme Court in its decision today to strike down California’s law banning the sale of violent video games to minors. The court voted 7-2 in favor of holding the law as unconstitutional on First Amendment grounds. It’s interesting to see how the court considered the evidence and decided.

The divided vote shows that this wasn’t an overwhelming victory for the video game industry and free speech advocates. In the 92-page decision, here are the arguments that stand out on both sides.

– Writing for the majority, Justice Antonin Scalia noted that previous cases have held that “the basic principles of freedom of speech do not vary with a new and different communication medium.”

– Opponents of violent video games foundered in their attempts to define violence. Scalia noted that Dante’s Inferno and the Grimm’s Fairy Tales depict violent scenes but have never been restricted. “Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy.””

– Scalia said the court found unpersuasive the state’s claim that video games are special because players participate in the interactive act of violence. The state failed to justify singling out video games in arguing for a “compelling government interest” in the restrictions. Scalia said that psychological studies purporting to show a connection between “exposure to violent video games and harmful effects on children do not prove that such exposure causes minors to act aggressively,” as the effects are small and indistinguishable from the effects produced by other media.

– Justice Scalia stated with regard to the validity of the scientific evidence put forth, “The State’s evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games causeminors to actaggressively (which would at least be a beginning). Instead, ‘[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.’”

– Scalia said the game industry’s existing voluntary rating system accomplishes the goal of giving parents a choice about whether to restrict their children’s access to violent games

Justices Samuel Alito and John Roberts concurred with the majority, but issued their own opinion.

– Justice Alito’s opinion opened with a comment on how the effects of new technology are unpredictable. He noted that spending hours controlling the actions of a character who guns down innocent victims might actually be different in kind from reading a description of violence in a work of literature. He found the increasing realism of violent games to be disturbing. Motion-sensing systems (such as Microsoft’s Kinect) can now enable players to mimic violent actions to produce a violent effect on the screen, like swinging a baseball bat to “smash a skull.”

– “These present-day and emerging characteristics of video games must be considered together with characteristics of the violent video games that have already been marketed,” Alito said. “In some of these games, the violence is astounding.”

Justices Stephen Breyer and Clarence Thomas dissented. They used the following arguments.

– Breyer said that it is possible to define violent games that are the most realistic and potentially damaging. He found California’s description of violence with words such as “kill,” “maim” or “dismember” to be precise enough to be enforced, much like the term “nudity” in anti-obscenity laws. Breyer said that evidence submitted by California about the effects of violent video games on children was more extensive than that submitted for obscenity laws.

– “The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child or adolescent from obtaining a game provided a parent is willing to help,” Breyer wrote. “All it prevents is a child from buying, without a parent’s assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.”

– Breyer wrote, “What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured and killed — is also topless?”

– Breyer also argued, “Sometimes, children need to learn by making choices for themselves. Other times, choices are made for children — by their parents, by their teachers, and by the people acting democratically through their governments.”

– Thomas argued that parents have authority over children and can thus control what speech their children hear or see. He says there is a long tradition behind that belief and that video game publishers do not have the unfettered right to speak to children without restraints. He noted that the law does not ban the sale of violent games to minors; rather, the law does allow parents to buy violent games for minors if they so choose.

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