Supremes wrestle with California vidgame law

Free speech vs. violence tough debate

Another week has passed, the Supreme Court’s term is nearly at end, and yet there’s still no decision on California’s violent videogame law.

The measure to restrict the sale of ultraviolent titles to minors is supported by parental groups and lawmakers but opposed by the vidgame business and much of Hollywood.

The biz has been confident that it has a very strong First Amendment case to make, but given that oral arguments were Nov. 2 and there’s still no ruling, is it time to panic?

What looked like a slam dunk of a free-speech case is only increasing the speculation (and I caution that it is speculation) that the justices are really struggling with this case. Oral arguments centered on the vagueness of the law on the one hand and the shocking content — like decapitations and lighting people on fire — on the other.

So it’s fair to consider just what would happen if the law were upheld.

There are no shortage of scenarios regarding slippery slopes and chilling effects if the court for the first time carves out an exception to the First Amendment to allow for certain restrictions on violence in the media.

Broadcasters believe that such an exception would only embolden lawmakers on Capitol Hill, in particular Sen. Jay Rockefeller (D-W.Va.), who has for some time broached the idea of regulating TV violence in the same way that the Feds police obscenity and indecency.

More to the point, the vidgame business, which has prided itself on a voluntary labeling system, would have to think about altering some of its plans. Perhaps maiming and mutilation would have to give way to mediation, or even a button where a character can be made to say, “Maybe we can talk this over?”

That’s an extreme, but Ahsan Shaikh, attorney at McDermott, Will & Emery, said publishers would have to become more creative in their storylines to avoid explicit displays of violence. Specializing in intellectual property law in the vidgame biz, he even sees opportunity: Someone could get a patent on a technique that reduces violence on the screen — like a character who, instead of getting killed, “ages really quickly and turns to dust.”

Publishers will be looking for ways to alter “as little as possible to make games less violent and get them out quickly,” he said.

It’s not so far-fetched: As he points out, in 1993 Acclaim Entertainment had to be creative in porting the video arcade hit Mortal Kombat to Super Nintendo because the latter had a “family-friendly” policy in place. While the Sega Genesis version kept the blood, gore and fatalities, the deaths were removed from the Super Nintendo version and blood was replaced with sweat.

The concern of the rest of Hollywood is that it won’t just be videogames that will suddenly be under government scrutiny, but movies, TV and even theater.

The Motion Picture Assn. of America and a host of guilds and other industry orgs filed a friend of a court brief warning that the law would lead to a patchwork of state and local regulations, including those threatening theater owners with legal sanctions if they admit minors into violent films. At the very least, they noted, what has to be considered is that the “increasingly symbiotic relationship” between vidgames and motion pictures — think “Tomb Raider” — makes it more difficult to draw clear lines.

“The greater impact would be far beyond the (vidgame) industry itself,” said Steve Smith, head of the videogame practice at Greenberg Glusker. “I don’t see any place to draw a line between videogame law and any other type of media.”

What stands out to him is a point made during oral arguments by Justice Elena Kagan. She asked whether vidgames are really speech at all, but more like a Monopoly set. Her question, he wrote in a blog post, “illustrated the factual difference between speech as expression by the creator versus speech as conduct by the actor.”

Going down that route of reasoning, then, a law could be passed to restrict kids from acting violent scenes in the production of a play, or even play itself, Smith suggested.

“It is not just the expression of the artists and programmers that make the games. It is also the expression of the kids who buy and then act out the games,” he wrote. “If the Entertainment Merchants Assn. loses this case, I hope a 17-year-old ‘minor’ who is prohibited from buying a violent game sues to enforce her right under the First Amendment to buy and act out the play contained in that game.”

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