Content debate promises to gain new vigor

So far, the midterm campaigns have been largely free of the kind of cultural flare-ups that make Hollywood wince: The attacks on sex and violence in the media, making content creators out to be akin to smut peddlers and arms dealers.

But just in time for Election Day, on Nov. 2 to be exact, the content debate promises to gain new vigor. That’s when the Supreme Court is set to hear oral arguments on the constitutionality of California’s ban on the sales of violent videogames to minors.

More than likely, election politics that day will trump the court proceedings, but that certainly will not be the case when the high court delivers its verdict. If it upholds the law, there likely will be an outcry from content creators of all stripes that the justices have carved out new territory of unprotected speech, that of excessive violence. If it overturns it, as the lower courts have, there could be a backlash from parents groups and lawmakers, perhaps leading to new legislative contortions that could pass constitutional muster. A spokesman for state Sen. Leland Yee, a Democrat who authored California’s law, said they are prepared to do so if that happens and expect the court to “give us direction on where to go.”

With plenty more urgent needs, sex and violence in the media have faded from policy debates. But as courts consider not just the vidgame law but the FCC’s efforts to limit indecency on the airwaves, the issues of entertainment content are perpetually lying in wait.

If the past is any guide, going after media sex and violence is just too tempting a target for politicians of both parties, even more so given that Democrats rarely risk losing their industry faithful even when slapping them on the wrist for excessive shoot-’em-ups.

Appearing in 2008 before an industry audience at the Kodak Theater for his pre-Super Tuesday debate with Hillary Clinton, Barack Obama said he rejected censorship but that the industry should “show some thought” in its marketing of violent content. It certainly didn’t slow his pace of raising money in showbiz.

California Attorney General Jerry Brown is defending the state’s videogame law, but that didn’t stop the Entertainment Software Assn. from giving $21,000 to his gubernatorial campaign last March, nearly the same amount it gave his rival, Meg Whitman.

Most telling, for both sides, is that the vidgame bill was signed into law in 2005 by Republican Gov. Arnold Schwarzenegger, who carved out an entertainment career in part on violent actioners.

Those are the very type of movies that the videogame industry says could be the next target if the law were allowed to stand. The Motion Picture Assn. of America, along with other lobbying orgs and guilds, is expected to file friend-of-the-court briefs supporting gamemakers by a Sept. 17 deadline.

“The significant fact is that defining what violent content you want to restrict turns out to be very difficult to do without including more than you intended to cover,” says Daniel L. Brenner, a partner at Hogan Lovells in Washington who also teaches at Georgetown Law School.

The law imposes a fine of up to $1,000 for the sale or rental of a violent videogame to a person under the age of 18, defining “violence” in much the same way that the Supreme Court has defined obscenity: of a deviant or morbid interest to minors, offensive to community standards as to what is acceptable for children to see, and lacking in “serious literary, artistic, political or scientific value.” The 9th Circuit Court of Appeals, however, refused to “redefine the concept of obscenity under the First Amendment.” The law then faced a higher level of scrutiny that it could not meet, in part because California never was able to establish a causal relationship between vidgame violence and psychological or neurological harm, even if it did produce a correlation.

As definitive as its ruling was, what is worrisome to some opposed to the law is that the Supreme Court didn’t just let the decision stand. It’s perilous to try to read tea leaves on a grant of certiorari, but First Amendment scholar and legal commentator Julie Hilden wrote on her blog that “it seems very unlikely that the Supreme Court took this case in order to proclaim, as the Ninth Circuit panel did, that minors do indeed have First Amendment rights – rights that extend far enough to reach “violent” video games.”

James Steyer, CEO and founder of child advocacy org Common Sense Media, which filed a brief in support of California, says the law is not about censorship but is narrowly focused on the sale of “ultra-violent videogames,” so specific that when it comes to restrictions on other types of media, “We don’t want to go there.”

As California challenges the reasoning of the 9th Circuit, arguing the social science behind it is “more than sufficient” to justify the law, and it is narrowly focused on children, not the creation and the distribution of the games, it is clearly laying out a case for what parents are up against, in graphic detail.

In fact, the state brief’s description of one game in particular, “Postal 2,” makes you fear not just for kids. In addition to scenes including maiming, child torture and brain bashing, there’s one in which a player lights a victim on fire then “urinates on the victim and says, ‘That’s the ticket.’ ” There’s plenty more.

As compelling a call to action as the example is, one that surely will be magnified by the Supreme Court’s review, It’s still important to note that the politics surrounding it are no longer so easy to predict. So far 11 states have joined California in support of the law, but Utah’s attorney general, Mark Shurtleff, is considering a brief in support of the videogame industry. His reasoning is not just free speech, but an unexpected wrinkle in the content debate, one that speaks to the ubiquity of games: He tells the Salt Lake Tribune that he doesn’t want to hand “every criminal out there” a new defense: “The videogame made me do it.”

ted.johnson@variety.com

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