The Website and Blog of Joshua R. Kagan

Violent Video Games Go (Back) To Court

California Civil Code § 1746,¹ a law enacted in 2005, criminalized the sale or rental of certain violent video games to minors. The law didn’t last long. A federal court declared it unconstitutional last year² and it wasn’t hard to see why.

As a content-based regulation, § 1746 requires a strict scrutiny analysis,³ which means that such a law is only constitutional when the state (1) has a compelling interest and (2) the law uses the least restrictive means to further that interest. The State argued that it had a compelling interest in preventing minors from accessing violent games and presented a study that purported to link violent behavior with violent games. The Court didn’t buy the State’s argument, finding that the plaintiffs raised serious questions about whether there is a causal connection between access to such games and harm to children. In the end, the plaintiffs were awarded an injunction against enforcement of the statute. Fast-forward to October 2008, and § 1746 has reared its ugly head again in the form of an appeal by Governor Schwarzenegger.

The video game industry is no stranger to controversy over game content. In 1994 it established a self-regulatory organization called the Entertainment Software Rating Board (ESRB) that applies ratings to all video games and sets certain advertising guidelines that publishers agree to. Its ratings mimic the ones used by the motion picture industry, with distinct categories for age groups like “Everyone,” “Teen,” and “Mature 17+.” Like the film rating system, the ESRB’s ratings are technically voluntary, but that doesn’t mean they’re without consequences. For example, Wal-Mart will only stock ESRB-rated games and won’t sell any games that carry an “Adults Only 18+” rating. Wal-Mart is currently the U.S.’s biggest reseller of games, so that means an AO rating is a kiss of death for most titles. A few months ago when I was working for a game publisher making a game based on the SAW movies, this was a significant concern. Ratings have real effects on the way publishers do business.

For what it’s worth, I don’t disagree that some games can be harmful to children. Grand Theft Auto IV, Soldier of Fortune: Payback, Brothers in Arms: Hell’s Highway, and many other games contain content that isn’t suitable for children. But so do at least as many Hollywood movies and popular TV shows. The industry recognizes this, which is why self-regulating programs like the ESRB have developed to keep violent games out of children’s hands while ensuring that games are still widely available. But more importantly, it’s not the state government’s place to restrict the sale of content that qualifies as speech. As courts have already found in other states that tried similar legislation including Arizona, Illinois, Louisiana, Massachusetts, and Oklahoma, this kind of law can’t survive a First Amendment attack on its face.

Next Wednesday when the appeal comes before the Ninth Circuit, I suspect the Court will agree. There isn’t really any uncertainty there. The real question here is whether lawmakers in Sacramento and other state legislatures will get the message as well.

1. Formerly known as California Assembly Bill 1179. [↩]
2. Video Software Dealers Ass’n v. Schwarzenegger, 2007 WL 2261546 (N.D. Cal. Aug. 6, 2007). [↩]
3. R. A. V. v. City of St. Paul, 505 U.S. 377 (1992). [↩]

On “Technology Policy,” Let’s Be More Specific

Earlier this week Professor Michael Scott of Southwestern Law School called for a “coherent federal technology policy.”  He pointed to the decline in government R&D spending and argued that the next president should “turn things around.”

He’s right.  But I want to go one step further and specifically outline what a good federal technology policy should include.  Here are my ideas.

• The first problem is that our present government doesn’t seem to understand technology when it matters.  For example, Senator Ted Stevens (R. Alaska) delivered a now-infamous speech in which he demonstrated a complete lack of understanding about how the Internet works.  Normally I wouldn’t care, but at the time Sen. Stevens was the chair of the Senate Telecommunications Committee.  He vehemently opposed an important bill on the basis of this erroneous understanding.  This is destructive.  The people in charge of technology need to be experts in the technology.  It’s obvious that Sen. Stevens and others in Congress have their committee chair positions simply because of seniority.  In other fields this probably isn’t a big deal, but in technology it’s huge.
• Another issue is reform of the broken patent system.  A good technology policy should provide consistent, predictable, and reliable protection for inventions while closing off the patent trolls as much as possible.  Let’s use the U.S.P.T.O. to encourage innovation, as it was designed, instead of undermining innovators and rewarding trolls.
• We also need a consistent policy for protecting our IP abroad.  We live in a nation with an increasingly information-driven economy.  Innovation may soon be our greatest export, and because of the Internet information has no borders.  In some industries like entertainment this is especially important.  We need a fair and consistent set of rules that allow American businesses to cooperate and competitively conduct business in foreign markets over the Internet.
• The next problem is that our present government doesn’t embrace technology when it should.  The Internet is a powerful tool for bringing people together and allowing them to do and understand things very efficiently.  The next president should create a cabinet-level position for using technology to communicate and work with the people.  For example, people should be able to use the Internet to retrieve up-to-date information about how tax dollars are being spent.  Let’s use the Internet to create the ultimate transparency law.
• In addition to embracing technology, the government should also embrace science.  Our current administration has an almost antagonistic relationship with science.  When our scientists present valid peer-reviewed findings, the policy should be to put their recommendations first, not second to the needs of some lobbying group or faith-based position.
• The government also needs to have a policy of promoting next-generation technologies like broadband access.  It’s ridiculous that the U.S. trails behind Korea, Canada, the Netherlands, and other countries in broadband penetration.  The Internet is quickly becoming the most important way that people communicate, and everyone should have access, regardless of socioeconomic status.  This is an area where the U.S. should lead, not trail.
• Finally, a good technology policy needs to be committed to information neutrality across all channels.  This includes everything from net neutrality on the Internet to continuing the U.S. tradition of content neutrality on the airwaves.  Give everyone a chance to express their opinions and to try to make their business models work.

Obviously there’s more that can be done, but I think this would be a terrific start toward “turning things around,” back on the road to being the technological leader that our nation could be.  Let’s invest in our future.  Let’s embrace the 21st century instead of running from it.