California has spent the past five years attempting to establish state laws that restrict the First Amendment rights of video game developers and consumers. Now it has taken the case, Entertainment Merchants Association (EMA) v. Schwarzenegger, to the U.S. Supreme Court. The court's decision will have far-reaching consequences beyond the gaming community, because California's law has the potential to hinder free speech through the censorship of interactive media and through a chilling effect on its sales to consumers.
Judges have repeatedly struck down the Californian law as unconstitutional - initially by a District Court judge in 2007 and again by a three-judge panel of the 9th Circuit Court of Appeals in 2009. The 9th Circuit rejected the state's attempts to link games and real-world violence because the argument was "based on correlation, not evidence of causation" and because expert conclusions were drawn using "significant, admitted flaws in methodology."
The Supreme Court has long held that First Amendment rights can be abridged only in cases where there's a compelling state interest. Such an interest might be the alleged psychological damage that video games have on minors. However, there is no consensus of scientific evidence showing that games are harmful to children, and there are many less onerous and well-proven means by which consumers can control children's access to games (e.g., the successful ESRB rating system).
In striking down the law, the 9th Circuit followed a trend set by nine previous federal court decisions, all of which uniformly held that video games are protected speech, just like books, comic books, movies and music, and that no compelling evidence exists that game content causes harm to players.
The case is slated to come before the Supreme Court early next month. California argues that video games are special because of "the interactive nature of gaming." That is, the state can censor violent games, even though it can't censor violent books or violent movies, simply because they are interactive - because the consumer of a video game is actively engaged with the content, rather than merely consuming it.
Labeling video games as unprotected speech because of their interactive nature enters dangerous territory. First, there is a growing community of game makers who build games designed for rhetorical impact. In the same way that conventional media are used to argue or advocate for political or cultural positions, these games use their interactivity to present a point of view, with the goal of engaging the player in a new idea or perspective.
More broadly, the interactivity of the medium makes games not only a form of speech from the content creator to the player, but turns them into a forum for "person to third-person" speech. Not only would upholding the California law declare that the government may regulate creative media in a digital environment, but free speech protection in all digital forums and media would be weakened. This blatantly goes against the First Amendment.
In addition to the censorship of interactivity, the law imposes a serious liability on businesses that could lead to unconstitutional, chilling effects on free speech.
Traditional "brick and mortar" businesses, such as GameStop, will have to restructure their business models to ensure that minors are not sold games, in order to avoid liability of $1,000 per sale. Additionally, under the California law those in best control of the point-of-sale (sales clerks) are specifically exempt from liability, requiring businesses to assume the burden of increased training, supervision and thus higher costs. These businesses may decide that it is more cost-effective not to stock and sell these games altogether, effectively chilling speech to all members of the community.
In addition, businesses with an online distribution model are even less able to ensure the purchaser of the game is not a minor. Since digital distribution retailers are national entities, they might be required to geo-target California as a state where no mature games will be sold, as the only way to avoid liability under this bill.
Video games are merely the spearhead of an interactive revolution that is transforming our world. Interactivity is coming to us everywhere - on the websites that we visit, the television we watch, even the radio stations we listen to. "American Idol" is interactive content. So is the online encyclopedia Wikipedia.
What is really in question in this case is whether we want the Supreme Court to rule that interactive media is subject to more state regulation than traditional media - simply because it's interactive. All in the absence of any compelling evidence that such regulation provides protection from societal harm.
The same reasoning that lets a state regulate a violent video game would also give the government power to control who can access Wikipedia or a TV show that invites its audience to vote online. Allowing regulation for interactive media will invite censorship into our lives, impede our rights and negatively impact fair market practices.
Alexander Macris is president and CEO of Themis Media, an interactive media publishing company based in Durham. He is also co-founder and president of Triangle Game Initiative, a trade association. R. Michael Young is an associate professor of computer science at N.C. State University, where he co-directs the Digital Games Research Initiative. He is also a 2010 GlaxoSmithKline Faculty Fellow in Public Policy and Public Engagement at the NCSU Institute for Emerging Issues.
