Playing Super Mario Bros (Gameboy Color Game) on iPod photo

Music or games – free speech is free speech, say legal, advocacy, and industry groups. Photo (CC-BY-SA) FHKE.

A California ban of the sale of violent video games to minors may not seem relevant to the world of music on first blush. But the music industry, joining everyone from software makers to legal groups to state Attorneys General, feels otherwise. Overzealous restriction of the sale of games, these groups say, is tantamount to an attack on rights of free speech protected by the United States Constitution. And while the California law would make a separate set of rules for gaming, the message from the music industry, as others, is clear: diminish the freedom of one medium, and you diminish us all.

In addition to the National Association of Broadcasters, The Recording Industry Association of America (RIAA) joins an amicus brief with booksellers, publishers, novelists and writers, music retailers, “amusement and music operators,” and the Recording Academy, jointly filing their protests with the US Supreme Court.

Amongst the authorities cited in that brief: reviews of the game Halo, histories of banned books and laws concerning free speech, violence in Elizabethan England, and Homer and Aeschylus. (Yes, Homer’s Iliad Book 13 sits alongside Grand Theft Auto.) Even Punch & Judy, Tom and Jerry, and Little Red Riding Hood make an appearance. So does the Bible.

Of course, the music industry is sensitive to these attacks, having been at the business end of similar, ill-fated litigation. Books, magazines, newspapers, television, broadcasting, music – there simply isn’t a medium in America that hasn’t had to fight off similar complaints.

There are various arguments for whether or not gaming is reviewed as art, though here, there’s enough legal precedent to assume they are, in the eyes of the law. More telling, however, is the observation that “protection accorded to depictions of violence did not turn on … merit.” (The case cited in the brief protected gory, grisly images and descriptions of crime, which New York law tried to ban in the 1940s. At the time, the Supreme Court conceded it couldn’t understand why you’d want such a thing, but that merit was not the basis for the ruling.)

And that’s the bottom line: free speech is not about merit, or one medium or another, just as this Supreme Court decision is as much about music or words as it is about games.

The precedent, legally, is clear, leaving only the “newness” of the technology as a defense. Here’s the brief’s response to that issue:

California also appears to suggest that the new technologies represented by video games require a reassessment of First Amendment principles. Technological change usually causes fear and uncertainty.

In the twentieth and twenty-first centuries, technological change has repeatedly revolutionized entertainment media and communications, as well as the storage, retrieval, and distribution of information. Each of these technological advances—movies, television, the Internet, and now handheld, interactive electronic video games—has brought with it the fear that the new technology would corrupt the young. But there is no reason to permit fear of novel technologies to diminish fundamental constitutional rights such as the First Amendment.

For any artist, for anyone in the business of expression, this is a case to watch, at least in regards to US law.

More reading:
Merit Briefs/Amicus Briefs, Schwarzenegger, Gov. of California v. Entertainment Merchants, Assn., Docket No. 08-1448 [American Bar Association]

At stake in Terminator vs. video games? “The future of media”
[Ars Technica]

The brief cited here:
Brief for the American Booksellers Foundation For Free Expression, Association of American Publishers, Freedom to Read Foundation, the National Association of Recording Merchandisers, Recording Industry Association of America, Amusement & Music Operators Association, the Association of National Advertisers, Pen Center USA, and the Recording Academy in Support of Respondent [PDF]

  • http://bedroomproducersblog.com/ bedroom producers bl

    So Terminator can be the governor, but kids can't play GTA? Curious, indeed.

  • ted

    thanks for bringing this to attention. i think you're absolutely right.

  • sans soleil

    hmm…i just think of how much money the video game industry stands to lose if the law passes.

    i'm all for free speech, but i think it makes sense to limit exposure of minors to certain things…any parent will surely tell you the same.

  • http://www.createdigitalmusic.com Peter Kirn

    @sans soleil: Right, but how much money do novelists stand to lose? Booksellers?

    The question is who is limiting exposure and how they define it, and that's where the legal precedent comes in.

    Follow the logic here:

    If the government is going to regulate *content* of a medium, it will have to determine how to regulate that content.

    So, if it wishes to limit access to "violent" content, that puts the government in the position of deciding what constitutes "violence."

    As the amicus brief notes through a variety of examples, there's no legal test for what is too violent – not with games, not with comic books, not with music, not with books. Moreover, kids have access to violence through all kinds of media over which there is no such control, meaning the law here would have to explicitly discriminate against one medium – and for no particularly good reason. (I, for one, would feel more comfortable "shooting" a fake person in a game than watching actual violence or death on television.)

    If the government is deciding what is and isn't violent, and furthermore applying it differently to different media, by definition, it is interfering with constitutional rights of free speech.

    The First Amendment actually doesn't tell you that explicitly; indeed, it doesn't say much at all. You have to look at the logic of the situation, but also decades upon decades of legal precedents, which on this issue all point clearly at one conclusion. The State of California just doesn't have any legal precedent that isn't refuted in the briefs above; sometimes the law is complex, and I'm not a lawyer, but in this case you can read through the examples and it's pretty much right there in front of you. The Court would have to break significantly from precedent to back California on this law.

    As for limiting exposure to minors, that's been in the hands of minors' parents and guardians and voluntary ratings by the industry. Similar systems work for TV, movies, and so on. If you're a 12 year old, no one's going to sell you Playboy anyway. (And… yeah, 12 year olds are going to get them regardless.)

  • sans soleil

    understood – the point i was trying to make was that i don't think this is really about free speech, at least not from the perspective of the big players involved…it's purely about profits.

    the stats i've seen place under-18s at 25% of the video game market (less than one might think, but still a very significant portion in terms of bottom line).

    the 'free speech' thing just serves as a handy rallying cry to get others onboard, many of whom which have (to my mind) much more legitimate concerns regarding the issue – booksellers and novelist, which you mentioned, being a prime example.

    in this regard, i think it's absurd that a group's argument underlying the right to free speech is based on allowing minors access to some pretty horrific violence.

    …and i understand what you're saying about parents being the ultimate arbiters of what their children can or can't do, but i don't think that many people would disagree with maintaining age restrictions with respect to cigarettes, booze or guns.

  • http://www.createdigitalmusic.com Peter Kirn

    Well, I expect the comic book publishers in the 50s were similarly motivated by economics. ;) Of course, to me, commerce *is* part of free speech – again, because you don't have to have any merit here at all. The idea is to remove government from the decision-making process, except in cases of libel or physical threats.

    There's a legal differentiation between things that cause physical harm (like cigarettes) and speech / the press / and art. As the amicus notes again, that means protecting *even* speech that can motivate people to harm — like Hitler's speeches, which they cite as an example. The idea is to avoid a slippery slope. This is purely in terms of government. In a private context, you can regulate whatever you want. That's why, say, Facebook can have an anti "hate speech" rule, but the federal government can't apply the same standard to a blog.

  • Kim

    You cant drink until your 21 and games are to violent. Im from California and I don't think this is about freedom of speech its about target markets and how much corporate entities can make. Ban the games Im all for it.

  • Legs Mechanical

    I'm neither inclined to believe that this ruling is going to come out on the side of the CA statute, nor to think that, if it is, it will come be terribly detrimental to the interests of other artists and purveyors of art in other mediums.

    First of all, CA has attempted to defend the video game statute on obscenity grounds. Restricting the sale of obscene material to minors has long been recognized as valid. The thing is, obscenity refers ONLY to sexually explicit material that is devoid of artistic merit. Essentially, CA wants to stretch the obscenity test to cover violence, and almost no one thinks thats going to happen because the kind of violence at issue in these games is clearly not of a sexually explicit nature.

    So, if its not obscene, then CA can still regulate sale of games but only if the state has a compelling interest to do so, and the way it regulates it is the least restrictive way to do so. 2 things here: 1) Regardless whether something is ultra-violent, the state can't regulate it as long as there is some reasonable claim that it is of artistic, cultural, or social value…. this is why it seems pretty clear that whatever the ruling is, it won't affect musicians: A pretty clear argument can almost always be made that music has artistic value. The reason video games are potentially on the chopping block is that they're a more recent medium whose artistic worth has yet to broadly recognized like music, books, and film have been.

    But… beyond all that… CA has to show conclusively that violent videogames cause negative behavior. Not gonna happen. Same'll hold true with music etc…. They also have to show that there is absolutely no good that can come out of kids playing violent video games. Not gonna happen. Problem-solving skills and hand-eye coordination etc…

    Anyway… the fact that there is so much precedent stacked against the CA law is a pretty clear sign that this is gonna come out well. The court took this case not to uphold the CA law, to but to clarify that various newer types of media are still protected under the 1st for their potential, if less clearly-discernible value to society.

  • aaron

    Kim: controlled substances/chemicals rules (booze, pills, cigarettes, etc) are not akin to music/games/media/literature bans and do not enter the arena of constitutional rights. Just because there is a age limit on controlled substance use does not mean a ban on media is correct, or legal. Parents should be responsible for what their kids are doing.

    That said, Tipper Gore et. all tried this once before with Explicit Content stickers and age requirements. It didn't work. There are PA warning stickers but they are just that, warnings. Even if CA does this I dont think it will have an impact on anything at all. Maybe initially.. but after a few months it's affect will wear off as court battles ensue and store clerks stop giving a F and sell whatever they want anyways.

    The only legal approach is industry self-regulation and we know how well that works (again, look @ PA warnings and also look @ the rated R warnings on movies.. when was the last time a under 18 teenager was kept from buying a ticket?).

    Nothing but a farce, a waste of time and tax payer money.

  • Zoopy

    "Now that the show is over, and we have jointly exercised our constitutional rights, we would like to leave you with one very important thought. Sometime in the future, you may have the opportunity to serve as a juror in a so-called obscenity case. It would be wise to remember that the same people who would stop you from viewing an adult film may be back next year to complain about a book, or even a TV program. If you can be told what you can see or read, then it follows that you can be told what to say or think. Defend your constitutionally protected rights. No-one else will do it for you. Thank you."

  • http://www.musicwords.net Jim AIkin

    If "free speech" is restricted only to speech that you and I can agree is nice, it's not free at all. The legal doctrine of freedom of speech and of the press is specifically intended to protect content that is nasty and anti-social.

    As a developer of text (non-video) games, I can tell you that this type of law would have a chilling effect on my creative output. What if I want to write a game based on some of the horrific violence in Leviticus? (Hey, that's not a bad idea….)

  • http://wearethemusicindustry.blogspot.com Jeremy Biggs

    “Now that the show is over….. If you can be told what you can see or read, then it follows that you can be told what to say or think. Defend your constitutionally protected rights. No-one else will do it for you. Thank you.”

    +1 to that.