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Playing games with the law

Politicians are targeting the sex and violence in video games, even though popular movies and television shows have similar content.

By JOSH KORR
Published March 19, 2006

The CBS franchise CSI: Crime Scene Investigation is one of the most popular shows on network television, reaching up to 17-million households per episode. Here are a couple of things CSI fans and 10 p.m. channel surfers have seen recently:

- A lab worker skewers a corpse's eye with a hypodermic needle and accidentally pulls it out, the eyeball trailing nerves and blood vessels like a flaccid squid.

- An officer sees a ghostly image of a woman, imprisoned in a house, starting to gnaw off her hand to escape handcuffs.

The video game Resident Evil 4 is one of the most popular of the past year, with 3-million copies sold worldwide. Here are a couple of things players of the Mature-rated game see:

- When the main character shoots people in the right spot, their heads shatter like a pumpkin pinata.

- A deranged man wearing a brown bag over his head lops your character's head off with a chainsaw, spraying blood everywhere as the screen fades to black.

The characters in Resident Evil 4 are created from thousands of polygons; though the game is one of the most graphically advanced ever made, the graphics don't look half as realistic as Jar Jar Binks. The gore on CSI is crafted from the best makeup and effects a top-10 TV show can buy, and it's realistic enough at times to make you turn away.

Over the years, the protectors of our nation's children have set their sights on many devils of popular culture: movies, comic books, television, Prince. These days, video games are the scourge of choice.

Since 2000, seven state or local governments have enacted laws restricting video game sales. Last year alone - when a semiexplicit animated sex scene was found in the blockbuster game Grand Theft Auto: San Andreas - lawmakers introduced 80 video game bills, according to the Rocky Mountain News. In Florida, a Senate committee recently approved a video game bill sponsored by Sen. Alex Diaz de la Portilla, R-Miami.

And last Dec. 16, Democratic Sens. Evan Bayh of Indiana, Hillary Clinton of New York and Joe Lieberman of Connecticut introduced the Family Entertainment Protection Act to prohibit the sale or rental to minors of games rated Adults Only and Mature.

There's just one problem: that nagging issue of the First Amendment.

Even if they can get their legislation through Congress, the senators will need to convince the courts that it's constitutional to prohibit Best Buy from selling Resident Evil 4 to a 12-year-old while CBS beams CSI to the same 12-year-old's bedroom TV. Supreme Court obscenity decisions and recent lower court cases striking down video game laws suggest the legislators shouldn't bother.

Defenders of laws restricting game sales usually start by claiming video games don't count as speech and therefore aren't entitled to First Amendment protection. Lower court rulings have put this argument to rest, establishing compellingly that video games express ideas just as other art and entertainment do.

In striking down a Missouri county's ordinance prohibiting the sale or rental of violent games to minors, Judge Morris Sheppard Arnold wrote for the 8th Circuit Court of Appeals in Interactive Digital Software Association vs. St. Louis County (2003): "If the First Amendment is versatile enough to "shield (the) painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll,' - we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence."

If video games count as speech, the next tack to get around the First Amendment is to claim the games are obscene material, which is not protected. But the key Supreme Court rulings on obscenity are invariably concerned with sexual material - and few video games depict sex or nudity.

The Supreme Court formulated a revised standard for obscene material in the 1973 Miller vs. California case, which involved mass-mailed advertisements for sexually explicit books. The second part of the decision's three-part standard is "whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law."

By this part of the standard alone, no mass-market video game today could be considered obscene.

According to the Entertainment Software Rating Board, there are no Adults Only video games for current home systems: GameCube, PlayStation 2, Xbox and Xbox 360. (Grand Theft Auto: San Andreas was rerated AO, but the sex game has since been removed.) There are two mainstream Adults Only titles for personal computers, but they are no stronger than a late-night Cinemax movie.

The ratings board lists only 13 of some 300 M-rated console games and two others for PC that have nudity or partial nudity. This is primarily shots of breasts, as in BMX XXX, God of War and Playboy: the Mansion. None of these games can be considered as having "patently offensive" depictions of sexual conduct.

Fortunately for the senators, the Supreme Court has also ruled that material can be considered obscene for children even if it's not obscene for adults. Unfortunately for them, Ginsberg vs. New York (1968) discusses this "variable obscenity" strictly in terms of sexual material.

This is the ultimate challenge facing video game laws: Because of the lack of sexually explicit games, the laws must successfully expand the definition of what is obscene for children to include violence. So far, lower courts have been emphatically unwilling to do so.

In striking down a Washington state law in Video Software Dealers Association vs. Norm Maleng (2004), Judge Robert S. Lasnik of Washington's Western District Court in Seattle refused to treat violence as obscene speech. "No court has accepted such an argument, probably because existing case law does not support it," Lasnik wrote.

The Interactive Digital Software Association ruling is blunt: "Simply put, depictions of violence cannot fall within the legal definition of obscenity for either minors or adults."

That leaves one last argument for defending video game laws: Governments can restrict games with violent content because of a compelling interest, in this case to protect players' and the community's well-being.

The courts have repeatedly dismissed the research into video games and violent behavior that underpins this argument.

In his Dec. 2 ruling striking down Illinois' game laws, Judge Matthew F. Kennelly said of government attempts to show a compelling interest in preventing minors' violent behavior: "Defendants have come nowhere near making the necessary showing in this case."

Kennelly's 53-page ruling reveals some tenuous research. One study had participants play a violent or nonviolent video game, then compete in a task and administer a "noise blast" when they won. Tiny differences in the length of beeps were considered evidence of video games' increasing aggressive behavior.

In another study, college students played violent or nonviolent video games, then were given a list of partial words they had to complete. Players of the violent games were more likely to form an aggressive word.

There you have it: Word association and horn honks prove Grand Theft Auto turns kids into cop-killing sociopaths.

Judge Richard Posner of the 7th U.S. Circuit Court of Appeals dismissed the two studies given as evidence of games' harmful effects in his opinion in American Amusement Machine Association vs. Teri Kendrick (2001), which granted a preliminary injunction against an Indianapolis ordinance restricting minors' access to violent arcade games. But Posner goes further in pointing out the essential silliness of singling out video game violence:

"Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault are aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

Defending The House of the Dead, a first-person zombie shooting game, he puts the debate in perspective:

"Self-defense, protection of others, dread of the "undead,' fighting against overwhelming odds - these are all age-old themes of literature, and ones particularly appealing to the young. The House of the Dead is not distinguished literature. Neither, perhaps, is The Night of the Living Dead, George A. Romero's famous zombie movie that was doubtless the inspiration for The House of the Dead. . . . We are in the world of kids' popular culture. But it is not lightly to be suppressed."

For anyone who has played a video game or respects pop culture, this is a no-brainer. That the courts agree and are unwilling to accept the constitution-baiting of Clinton, Lieberman and Bayh is encouraging not just for gamers but also for movie fans and TV junkies.

After all, Posner writes: "Violent video games played in public places are a tiny fraction of the media violence to which modern American children are exposed. Tiny - and judging from the record of this case not very violent compared to what is available to children on television and in movie theaters today."

Unless they are willing to pick a fight with Quentin Tarantino and Jerry Bruckheimer, the senators might want to make their bills an early campaign promise they forget to keep.

Josh Korr can be reached at contacted at  jkorr@sptimes.com. Check out his video game blog at www.sptimes.com/blogs/videogames

[Last modified March 20, 2006, 13:24:56]