Call of Duty: Supreme Court Tournament Edition

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Jim Snyder
ENG221: College Writing II
Professor Grzelak
10 May 2011

Call of Duty: Supreme Court Tournament Edition

There is a certain irony in Arnold Schwarzenegger taking a stance against violent media, particularly given the source of his pre-political income. Yet, as governor of the state of California, Schwarzenegger signed legislation in 2005 that banned the sale or rental of “violent” video games to anyone under the age of eighteen; retailers caught violating this law could have faced fines of up to $1,000 for each offense (Barnes, A02). The law was quickly overturned, but has since fought for survival all the way to the highest court in the land. Shortly after the Supreme Court decided to hear arguments over the law, Schwarzenegger jumped into the war of popular media, announcing, “We have a responsibility to our kids and our communities to protect against the effects of games that depict ultra-violent actions, just as we already do with movies” (Barnes, A02). What the former “Governator” seems to have forgotten is that the movie industry is self-regulated, meaning that no laws exist to punish theater owners if a fourteen-year-old sneaks into an “R” rated movie. The Entertainment Software Rating Board (ESRB), which serves as the video game industry’s regulatory body, provides a rating system that it applies to video games in much the same way that the MPAA rates movies. There are arguably opportunities to improve the ESRB rating system, but those improvements should come from within the industry, not from government-enforced requirements. In order to understand why self-regulation is more appropriate for the video game industry than government oversight, it is important to first understand the history of violent video game controversies, then examine the arguments and results of judicially overturned video game legislation, before finally learning why it is vitally important to keep the video game industry self-regulated.

The issue of whether the video game industry should be allowed the continued freedom to regulate itself is deeply rooted in the various controversies about the effects of video games upon their consumers. These controversies can best be examined through the specific lenses of psychological studies, political stances, and media portrayal of violent video games. The first lens, psychological studies, is often used by legislators, activist groups, and news reporters to provide a viewpoint of video games that offers little room for debate. The problem with this lens is that reports are often selectively quoted, failing to provide additional contextual information, and rarely are contradictory reports brought to light. For example, the authors of a November 12, 2010 article from The Washington Times note “[t]here is no question that playing violent video games has an adverse effect on our children. […] It ranks right up there with gang membership as the No. 1 sign for propensity to commit crimes of violence” (Nance, B-3). The article goes on to cite guidelines of the American Association of Pediatrics (AAP) which indicate that video games – among other forms of violent media – pose “a significant risk to the health of children and adolescents” (Nance, B-3). However, this same article fails to illuminate a couple of specific recommendations by the same organization. The AAP states that “[p]ediatricians should advocate for more child-positive media, not censorship” (AAP, 1224) and suggests that simple rating systems would “help parents guide their children to make healthy media choices” (AAP, 1225). Wide-swathing claims such as those made by the authors of the article from The Washington Post also fail to take into account positive reports noting that violent war games provide positive brain stimulation (White, L.1), or updated research that shows there may not be a connection between violent video games and desensitization toward violence in youths (Gordon). Regardless of conflicting results from various psychological studies on video game violence, politicians who see violence as a “hot button” issue with their constituents often march forward with only the information that demonizes gaming.

The history of politicians taking various stances against violent video games is nearly as lengthy as the history of video games, dating back to the 1976 release of Death Race, a game in which players scored points for running over other characters (Gentile, 226). However, the 1990s brought greater attention to video game violence as graphics became more representative of “real” characters. In 1994, Senators Joseph Lieberman (D., Conn.) and Herb Kohl (D., Wis.) held congressional hearings about the graphical violence portrayed in video games, particularly as displayed in Mortal Kombat (Thomsen, 2009). In the aftermath of the 1999 Columbine massacre, authorities and experts came to believe that Dylan Klebold and Eric Harris may have used the game Doom as “a dry run for the massacre that took place in real life” (Simpson, 1999), and following the 2007 shootings at Virginia Tech, Senator Newt Gingrich took the opportunity to point at video games as well, stating, “young people are being dehumanized by violence in video games” (Radford, 2008). Not surprisingly, the author of the 2005 California law being reviewed by the Supreme Court, California state senator Leland Yee, believes that there is a strong connection between pressing a button on a controller that allows your character to perform a violent action and becoming desensitized to that kind of similar action in real life (Fritz, B.3). In fact, Yee stated in an interview, “I can see that that kind of connection between your action and the consequent behavior is dangerous” (Fritz, B.3), essentially saying that since a player makes the decision to press the button to perform a violent action, that same player is more likely to make that same decision to personally perform a real act of aggression. Unfortunately, when a politician takes a stand using incomplete, faulty, or purposely obfuscating information, it is little surprise that some reporters – particularly in the television and newspaper news media – adopt very similar stances.

Violent video games have gotten more than their fair share of bad press simply through condemnation by news reporters who have never played the particular game they are demonizing. In the wake of the Columbine shootings, video games like Doom sat alongside movies, music, and the internet as one of the sources of violence that caused Klebold and Harris to go on their rampage. The video-game playing habits of Virginia Tech shooter Cho Seung-Hui got televised consideration. And following the tragic early 2011 shooting of Representative Gabrielle Giffords and others in Tucson, Arizona, the link to Jared Lee Loughner’s video game habits came quickly to the news reports, and even sparked some strange commentary. In an opinion piece, Marybeth Hicks noted in the Washington Times, “I suggest someone […] take a look at the games in his video collection. No, violent music and games didn’t ‘cause’ his descent into violent and disturbing behavior. But they sure couldn’t help” (Hicks, 2011). While the Wall Street Journal’s mention that “all [Laughner] did was play video games” (Emshwiller, 2011) or The Arizona Republic’s quotation of an associate of Laughner’s that indicated he was a “big video gamer” (Lee, 2011) are less than accusatory, because of the long history of video games portrayed as a cause of violence, media groups and family watchdog organizations hopped quickly on the “blame gaming” bandwagon. With all of the finger pointing at violent video games being part of the cause of these violent, horrific tragedies, and the media often blaming teenage violence on gaming as well, there are two important points to consider. First, there has been some theorizing, in particular by Loren Colemen, author of The Copycat Effect, that media coverage of horrific events can often times lead to “copycat” violence (Solyom, A.4). Given the wide berth taken with video game violence, one might suppose that news reports should carry ratings as well, especially given that the evening news is often as violent as other forms of entertainment media. Second, if playing violent video games truly leads teenagers to commit more violence, where is the tangible evidence? Violent crime has, according to the Federal Bureau of Investigations, been on a steady decline since 1985, while video games have, in general, become more realistic and violent (Radford, 2011). In fact, according to the FBI, the violent crime rate was at its 20-year-low in 2009, the last year of available statistics, with the crime rate sitting at roughly 57% of its peak in 1992 (U.S. Department of Justice, 2010). If violent video games are at the heart of so much violence, shouldn’t the statistics show it? Perhaps this, along with the traditional First Amendment protections afforded to almost every form of creative expression, is partly why no legal ban or restriction on the sales or playability of video games has ever survived judicial review.

The controversy over violent video games, from psychological studies to political stances and media coverage, has often led politicians in various states to enact and support legislation that would ban, restrict, or otherwise adversely affect the sales of video games in the public marketplace. Though there have been several laws enacted at local, county, and state levels, with the rare exception of laws applicable to adult or pornographic video games, all of these laws have been overturned upon judicial review. To properly frame prior judicial interactions with the video game industry it is important to review the history of judicial challenges against specific laws, note important decisions with regard to these challenges, and analyze the scope of the important issues that face the Supreme Court in its current deliberation of California’s law restricting the sale and rental of violent video games to minors. One of the earliest pieces of legislation regarding violent video games actually targeted the video game arcade industry, not home console games. Bart Peterson, former mayor of Indianapolis, Indiana, with the support of the Indianapolis city council, enacted legislation that would require arcade operators to label violent or sexually offensive video games, and to prohibit their play without parental consent (Schoettle, 6). A spokesman for Peterson stated, “We think this is a good ordinance, with a good purpose. […] We think it will stand up legally” (Schoettle, 6). The law carried stiff penalties for arcades that failed to comply: $200 per day fines, per violation (Schoettle, 6). Very quickly after the ordinance was passed, the law was challenged by the American Amusement Machine Association (AAMA) and other industry groups, which eventually led to the United States Seventh District Court of Appeals to overturn the law (Groppe, 1). Though the Supreme Court is presently deliberating the 2005 California law, it had previously turned down an appeal by Indianapolis to hear arguments regarding its ordinance (Groppe, 1). While the Indianapolis law was aimed at arcades, a St. Louis County law passed in Missouri was of a much wider scope. The St. Louis law made it “illegal for any person to sell, rent, or make available violent video games to minors” (Business Wire, 2003). In this case, the Interactive Digital Software Association (IDSA) led the charge of industry groups including the AAMA to successfully fight all the way to the Eighth District Court of Appeals, which led to another unanimous decision in overturning a violent video game law (Business Wire, 2003). Douglas Lowenstein, then president of the IDSA, noted that the decision marked an “unambiguous affirmation of our position that video games have the same constitutional status as a painting, a film, or a book” (Business Wire, 2003). Prior to California’s law that would fine violators for selling or renting games to minors, the state of Washington tried a similar approach that was also struck down upon appeal, this time by Washington’s Western District Court (Korr, 1.P). In his verdict, Judge Robert S. Lasnik noted that “[n]o court has accepted [that violent speech is obscene], probably because existing case law does not support it” (Korr, 1.P). Similarly, when the Ninth Court of Appeals overturned California’s 2005 law banning the sale of violent video games to minors, the court indicated that “sufficient evidence of a causal link between violent video games and harm to minors” had not been proven (Cannan, 2009). Clearly, while legislators often stand on the side of restricting various forms of video gaming, often focusing on the more violent ones, the judicial system sees a different picture, and does not want to tread harshly upon the protections afforded other forms of media. From the decisions of these cases, there is certainly some insight to be found.

In the overturn of various pieces of legislation regarding violent video games, many judges have weighed in with important insight on the matter of violence in the media. Perhaps one of the most important points comes from the Honorable Richard A. Posner who was one of three members of the Seventh Court of Appeals who unanimously overturned the Indianapolis arcade ordinance. Posner wrote:

[T]o shield children right up to the age of 18 from exposure to violent descriptions and images […] would leave them unequipped to cope with the world as we know it. Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature […] is interactive; the better it is, the more interactive. (ESA)
In overturning the St. Louis County law regarding violent video games, the Eighth Court of Appeals addressed the psychological argument of minors being adversely affected by playing video games. The Eighth Court noted that while St. Louis County linked violent video games to potentially damaging psychological effects on children, such an effect “is completely unsupported in the record” (Business Wire, 2003). Essentially, the Eighth Court of Appeals felt that there was no conclusive testimony providing a sound link between violent youths or long term effects that were caused by violent video games. Similarly, in the opinion of the Ninth Court of Appeals with regard to California’s law, Judge Consuelo M. Callahan noted several issues with the research into the link between violent youth and violent games. Most notably, Callahan wrote, “None of the research establishes or suggests a causal link between minors playing violent video games and actual psychological or neurological harm, and inferences to that effect would not be reasonable” (Video Software Dealers Association, 1963). There is a lot of precedent involved in the overturning of laws that have attempted to suppress the availability of video games based upon their content, and as each case has come up, the rulings involved in previous cases are cited as continued example to strike such laws. Yet, with the Supreme Court finally taking the matter into consideration, there are some areas that the high court should strongly consider in its deliberations.

A great many of the considerations that the appellate courts have given with regard to the ongoing legal challenge against violent video games have been based in large part upon the protections that are granted to virtually all forms of media under the First Amendment. To begin, the Supreme Court should consider simply that the ESRB rating system works. According to a recent congressional report by the Federal Trade Commission (FTC, 2008), “the video game industry continues to do an excellent job of clearly and prominently disclosing rating information” (FTC, 29). In fact, a 2008 mystery shop survey conducted by the FTC indicated minors could buy “M” rated video games only 20% of the time compared to a 35% success-rate of minors getting into “R” rated movies. Senior staff attorney Lee Tien of the Electronic Frontier Foundation cautions against the need for legislation of video games “if there are reasonably effective private rating systems and parental control tools that don't interfere with our First Amendment rights” (TechWeb, 2010). As for one of the most often used arguments against video game violence, that players are more likely to become violent because they are consciously making decisions that are played out in the game, there is more to consider there as well. Some of the available research supports a link between control and potential aggression, but other research notes that control “might also be the cue that constantly reminds players of the fictional environment in which they're playing” (Thomsen, 2009). The counterpoint basically suggests that it is the very control of the video game itself, the mental realization that the actions being performed are due to the push of buttons, that keeps the player firmly rooted in the idea that the game isn’t real. Perhaps most importantly, the justices of the Supreme Court should remember to take the research statistics that purport to show a trend of violent games begetting violent kids and temper those statistics with reports that show the other end of the spectrum. Professor Christopher J. Ferguson wrote, “Some studies have found that violent-game use is a normal part of development, particularly for boys, and may release stress” (Ferguson, E.5). Ferguson also noted that there is a “near-zero” effect on children who partake in violent video games or television, and that there is very little to link media violence with any form of aggression (Ferguson, E.5). In short, there are many other factors that might lead a child to violence. Even Justice Antonin Scalia has stated, “Violence is not and has never been a subject of taboo for children” (Moon, D.8). While the psychological, political, and media debate over video game violence provides plenty to consider, and the judicial aspects of prior legislation provide a historical framework, it is also very important to consider the potential effects should the Supreme Court uphold the California law on violent video games.

There are three very specific areas that an affirmation of the California law would affect. There is a potential spill-over into other media, the impact upon the video game industry itself, and the role of parents in determining what constitutes suitable content for their children. First, many advocates of the overturn of California’s law see the danger of allowing a broad-stroke, generalized law that targets rather generic violence as one that, if allowed to remain law, could lead to censorship of other forms of media. Paul M. Smith, lead attorney for the video game industry in the battle against California’s law, points out that “any new exception to the First Amendment for exposing minors to violent content would be impossible to contain to just the gaming medium” (Orland, 4), noting that television, books, plays, movies, and other forms of expression that contain violent content could be at risk for future legislation. While some may laugh at the idea that any such fallout would occur, the Motion Picture Association of America provides a stark piece of historical context:

The history of the motion picture industry serves as a vivid illustration of the threat to First Amendment rights from the impulse to control and censor new forms of media — a threat reflected in the statute at issue before the Court. From the advent of motion pictures, a variety of state and local governments sought to restrict their content for the asserted purpose of protecting moviegoers from being exposed to harmful material. (MPAA, 2010)
As noted previously, even many judges within the judicial system recognize the presence of violence and the importance that it plays not only in society but in the education of minors. Any censorship of a medium due simply to violence would be to rob the American culture of an important piece of its history. This theft would be most evident within the affected media, and would have immediate, tangible effects upon the video game industry.

Should the violent video game law be upheld by the Supreme Court, there would be both creative and economic impacts upon the video game industry. Consider that as presently the current ESRB rating system, voluntary enforcement exists. Retailers such as Wal-Mart and Best Buy usually ask for identification in order to verify the age of anyone attempting to purchase an “M” rated video game. However, if someone makes a mistake and forgets to card a minor, there isn’t a punishment that could potentially cost a retailer thousands of dollars in fines. Under the California law (and similar laws that would crop up nationwide if the law is upheld), retailers could face significant fines for selling or renting a violent video game to a minor. Video game developer Daniel Greenberg cautions about the cascade of events that could follow a failure to overturn the law. “Some stores may stop carrying Mature-rated games. Game publishers might be afraid to finance them” (Greenberg, B03). This might seem like an over-reaction, but the idea that retailers would take the easiest route to avoid fines is not difficult to imagine. Wal-Mart, which typically has their video games locked away behind glass doors, and which one might believe would have the easiest time policing the age of potential purchasers of games, was found by the FTC to have only an 80% success rate in stopping children from purchasing M-rated games (FTC, 2008). That would leave 20% of its sizeable number of “M” rated video game sales to carry a stiff fine if caught by authorities. The next logical progression, as Greenberg noted, would be that game publishers simply wouldn’t fund the games. If there’s not a readily-available outlet for violent video games, specifically given the increased cost of developing highly realistic gaming environments, it stands to reason that without a guaranteed return on investment, the money would dry up swiftly. Some might suggest publishers would simply move to digital downloads and online sales, but the FTC is aware of that and actually noted in a congressional report that online stores were a particular failure in the regulation of minors purchasing “M” rated games (FTC, 28). Certainly any law designed to fine traditional storefronts would target virtual ones as well. Greenberg’s final point of note is that with the vague nature of the California law and other previously overturned laws, “[d]evelopers would not know how to avoid triggering censorship because even the creators of such laws don't seem to know” (Greenberg, B03). Restricting the sale of violent video games to minors definitely has a wider reach than the sales that it is intended to restrict. Of course, with the available ESRB rating system, it would seem that parents already have the tools they need to make informed decisions, and therefore such censorship truly seems unnecessary.

Daniel Greenberg not only develops video games, he develops violent video games. “Parents have good reason to be concerned about their children's media diet and to ask what possible good can come from blowing out the brains of a character in a game,” Greenberg writes (Greenberg, B03), expressing a belief that is pervasive throughout the video game industry: Parents should definitely be involved in the choice of games their children play. There is definitely a vocal section of society that believes the government should regulate video games in the same way that it regulates gambling and pornography, believing that laws such as California’s would “empower parents to have more control over their children's access to extremely violent video games” (Nance, B-3). Yet, the Federal Trade Commission, still uncertain as to how the ESRB and the video game industry will handle mobile gaming, noted that upon its recommendation, the ESRB surveyed parents and changed its rating system to supply additional information to help parents make better informed decisions (FTC, 27). The question is not one of a complete or even near failure of the rating system currently in place for video games, and in fact is more a question of whether parents are keeping themselves actively involved in the media decisions that their children make. Vince Horiuchi, a regular contributor and blogger for The Salt Lake Tribune, points out the hypocrisy of certain politicians taking a moral stand against violent video games. As he notes, former New York governor Elliot Spitzer was a politician who stood against violent video games, and was also “the guy who lost his job after patronizing hookers and cheating on his wife” (Horiuchi, 2008). This is not to say that all politicians have similar skeletons in their proverbial closets, but rather to say that parenting should remain in the hands of the parents, not the politicians.

The decision that will soon come from the highest court in the United States of America will have long lasting effects, regardless of how it turns out. To call the case a “landmark” would be almost to understate the importance of the ruling. Should the Supreme Court side with the video game industry, the precedent will likely eliminate many other potential laws looming in the minds of state and local politicians, though it is unlikely that the California law will be the last to see its day in court. However, should the Supreme Court side with California and reverse the decision of the Ninth Appellate Court, a major blow to the First Amendment protections previously granted to the creative expression found in various forms of media will have been dealt a pretty severe blow. Certainly no one is trying to keep parents out of the decision making process when it comes to the games, and in fact, movies, television, books, and other forms of expression that their children partake in. Those decisions should be left firmly in the hands of parents though. From the Motion Picture Association of America and its rating system for movies, through the parental advisory label that appears on music CDs with controversial lyrics, and on to the information made available about video game content through the Entertainment Software Rating Board, parents have been provided the tools to stay informed about the content available to kids. Certainly there is room for improvement in the ratings systems, but the ESRB has certainly shown willingness through action to be part of a continued dialogue with parents about how to best present the information necessary to make well-informed decisions. Still, the one thing that no government agency can regulate is perhaps the core of the controversy regarding media consumption by minors: It takes a responsible parent to use the information properly. As the country awaits the ruling of the Supreme Court, perhaps it is best to reflect on the wise words provided in legal briefs to the high court: “Depictions of violence, unlike obscenity, have played a longstanding and celebrated role in expression properly consumed by minors, from Greek myths to the Bible to Star Wars and Harry Potter” (Sullum, 60). Video gaming is just the latest medium to draw attention to itself; surely wisdom should prevail in preserving freedom of expression.

Works Cited

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