The Governator vs. the Video Game Industry3

by Damon Martin

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The Supreme Court of the United States of America will soon be taking on a precedent-making case, set to be heard in November of this year, about the reach of the First Amendment when it comes to the realm of video games. Given Governor Arnold Schwarzenegger’s involvement, I’m going to try to present facts and opinion, and leave out any clichéd quotes such as “Get to da choppa!” or “I’ll be back” as best I can.

In 2005 the State of California passed two statutes, California Assembly Bills 1792 & 1793, which effectively banned the sale of ultra-violent video games to minors. However, the Video Software Dealers Association successfully appealed on the grounds of freedom of expression at the district court level, and the laws were judged to be unconstitutional. The State of California subsequently appealed the decision, and Schwarzenegger vs. Entertainment Merchants Association will bring the issue to the highest court in the land for a final judgment call

The California law originally stated that games containing “killing, maiming, dismembering or sexually assaulting an image of a human being” would be illegal to sell to minors, and any outlet or distributor caught selling the games could be fined up to $1,000 per offense. Considering the broad language of the law, which could apply to almost all games currently sold outside of Dora the Explorer’s Backpack Adventure, the video game industry, which is worth $20 billion a year, is desperately trying to resist any kind of censorship or self-imposed yet obligatory ratings system, such as are in place in other areas of the entertainment industry. Governor Arnold Schwarzenegger applauded The Supreme Court’s decision to hear the case, as did many of the leaders in the video game world, who hope to shoot the statutes down once and for all.

Video game makers want their rights to fall in the same category as many other media forms, which are protected under the First Amendment. Video games have become a vibrant part of pop culture over the last two decades, and any kind of government regulation in this case could very well subject video game makers to creatively stifling mandatory standards. Similar laws in the past have been struck down because of their implications when it comes to infringement on freedom of speech and expression. Case in point; just recently the Supreme Court threw out a case that made it illegal to traffic videos that depicted animal cruelty. As with previous First Amendment cases, this one isn’t about taste. The wider issue rests on where the government’s right to tell people what they can or can’t be exposed to begins and ends. The Supreme Court in the past has stated that minors are protected under the First Amendment.

Personally, I’m not a video gamer, but I have seen and followed the gaming industry for several years. The video games on shelves today are no more violent than movies in the theaters, shows on TV, lyrics in music, or the words of authors in books. Regardless of your views on violence in entertainment as it pertains to an underage audience, the problem with this law is that it’s the first step down a very dangerous path towards censorship. Once that door is opened, it’ll be very, very hard to close.

Six different states have tried to pass similar laws regarding video games in the past only to have them struck down by the courts in each of those respective districts, and a court ruling in favor of the California law could set a disastrous precedent. Conversely, if the Supreme Court rules in favor of the video game manufacturers, it could put an end to states trying to impose similar sanctions in other areas of the media and entertainment industries.

Whether you agree with the level of violence depicted in video games is really irrelevant when it comes to the First Amendment. Much like past cases involving pornography, the rulings regarding the First Amendment aren’t a matter of taste as much as a matter of our freedom vs. the law.

Further reading: CNN, The New York Times, The Los Angeles Times, USA Today, Wiki News