The fight game

Video-gaming industry girds for a long battle over sales restrictions

Brian D. Crecente, Rocky Mountain News

Published January 10, 2006 at midnight

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Arnold Schwarzenegger's film career has been one of legendary body counts. So when the actor-turned-governor signed a bill into law that restricted the sale of violent video games, the irony was not lost on gamers.

Those players thought they had the last laugh when a federal judge placed the California law on hold last month, but the fight to drag video games through the same trial by fire that movies, music and even comic books have had to endure is far from over.

In 2005, politicians introduced 80 bills to restrict the sale of video games. A week into 2006, 55 are already prepping for their run at the Constitution.

"It's sort of a rite of passage for new technologies," said Robert Corn-Revere, First Amendment lawyer and a partner at Seattle-based Davis, Wright and Tremaine.

"If you look at the history of technology and the history of the First Amendment, you will find it has taken decision-makers and courts a period of time before they become comfortable with that technology. Censorship is sort of a natural reaction to new technology."Dennis McCauley, editor of political-centric gaming site Gamepolitics.com, sees another reason for all the legislation.

"It makes for good theater," he said. "You have a lot of big (political) stars, and it's dealing with an interesting topic. It's just fun to talk about."

But not as fun to deal with.

"We (face) two new bills in Maryland, two new bills in Indiana and a bill in Florida," said Gail Markels, senior vice president and general counsel of the Entertainment Software Association. Markels' group represents the makers and publishers of video games.

"We have another 50 that carried over from last year, so we are already starting with 55 this year. I hope to God we don't go to 80 again."

All three of the bills from 2005 that made it into law have had injunctions placed against them, but court battles and appeals are looming. In Michigan, the ESA has moved to have the preliminary injunction converted into a permanent ban of the law. Last week, the state of Illinois appealed the injunction against its law, homing in on the law's restrictions on obscenity and dropping its contention against violence in games.

But most eyes are on California's recently passed, and more recently blocked, Clockwork Orange-esque state law prohibiting the sale or rental of "ultra-violent" video games to minors. In October, Schwarzenegger signed the measure into law. In December, U.S. District Judge Ronald Whyte temporarily blocked the law from going into effect Jan. 1.

"This is a hot issue in public policy and in the courts right now, and at some point a challenge to one of these statutes is going to make it to the U.S. Supreme Court," said Nathan Barankin, spokesman for the California attorney general.

Leland Yee, speaker pro tem for the California State Assembly and author of the bill, believes that his staff learned from the mistakes of previous bills introduced. He thinks the California law will be the one to reach the Supreme Court because it's narrowly focused on a subset of games that he labels "ultra-violent."

"There are some games that are M-rated that would not be classified as ultra-violent," he said. The law "talks about gratuitous violence, heinous-in-nature killings." The law prohibits kids from buying games that allow the killing or injuring virtual people in a way that is "especially heinous, cruel or depraved in that it involves torture or serious physical abuse to the victim."

While the law, if upheld, would affect all games on the market, Yee thinks only a handful fall under its definition of ultra-violent.

"Maybe four or five," he said.

That may be too narrow to serve any real purpose, said Corn-Revere. "When you are talking about four or five games, it becomes largely a symbolic gesture."

Yee, a former child psychologist, says the impetus for the bill was concern for the effect that violent video games have on children. Yee lists studies that show a connection between violence and game-play; the ESA lists a number that show there is no connection.

But Yee remains stalwart about his beliefs that the government should regulate the sales of video games to minors. And he understands the significance of a law like his, which deals with First Amendment rights.

"We've taken that issue very seriously," he said. "As someone who supports the First Amendment, I don't relish restricting anyone's First Amendment rights."

Markels counters that any such law would have a significant effect beyond the game industry.

"It would really change American culture," she said. "In this country, you have always had the ability to tell a story and speak your mind. If you start imposing penalties on gaming production, you have a chilling impact on speech."

Legal actions

A look at the laws passed in 2005 aimed at restricting the sale of violent video games to minors:

Michigan

• Signed into law: September

• Blocked: In November, by a federal judge, because it would probably have a "chilling effect on adults' expression as well as expression that is fully protected as to minors."

• Current status: The Entertainment Software Association, which sought the injunction against the law, is now trying to make it permanent.

• Description: Restricts the sale or rental of "ultra-violent" video games to minors, imposing fines up to $5,000. Repeat violators would be subject to up to 93 days in jail and a $40,000 fine.

Illinois

• Signed into law: July

• Blocked: In December, by a federal judge, because the law was vague and would have a chilling effect on creation and distribution of video games.

• Current status: The state has appealed the injunction, homing in on the law's restrictions on obscenity.

• Description: Prohibits stores from selling or renting extremely violent or sexual games to minors, imposing a $1,000 fine on violators.

California

• Signed into law: October

• Blocked: In December, by a federal judge, because "games are protected by the First Amendment."

• Current status: The state's attorney general plans to appeal the injunction.

• Description: Prohibits retailers from selling or renting "ultra-violent" video games to minors, imposing a $1,000 fine on violators.

The California law targets killing or injuring virtual people in a way that is "especially heinous, cruel or depraved in that it involves torture or serious physical abuse to the victim." Only a handful, like the game Manhunt, which awards points for especially brutal kills, specifically fall under the law's definition of "ultra-violent." The Terminator, for example, which includes dismembering and shooting as part of the game, would not be targeted under the new law.

Brian Crecente writes about video gaming and technology. 303-892-2811 or crecenteb@RockyMountainNews.com

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