Supreme Court vs Video Games

[deanb]

So yeah they decided against it.

http://www.cbsnews.com/stories/2011/06/27/national/main20074669.shtml

 

Official words on the matter (warning PDF)

http://www.supremecourt.gov/opinions/10pdf/08-1448.pdf

 

From the sounds of it it was apparently a bit too broad and vague, they have suggested a more focused law could get through.

 

I've not really made secret that I see nothing wrong with enforcing ratings on games, but meh you guys like to get in arms if someone mentions the word "first" and amendment together.

I do think the "devs will tone down games" claim a bit silly given GTA n Manhunt are UK made. (oh that's a general "internet commenter" thing, not something in the pdf)

 

So yeah, you can sleep safely tonight knowing that kiddies can play COD alongside you on XBL.

[Mr. GOH!]

So yeah they decided against it.

http://www.cbsnews.c...n20074669.shtml

 

Official words on the matter (warning PDF)

http://www.supremeco...pdf/08-1448.pdf

 

From the sounds of it it was apparently a bit too broad and vague, they have suggested a more focused law could get through.

 

I've not really made secret that I see nothing wrong with enforcing ratings on games, but meh you guys like to get in arms if someone mentions the word "first" and amendment together.

I do think the "devs will tone down games" claim a bit silly given GTA n Manhunt are UK made. (oh that's a general "internet commenter" thing, not something in the pdf)

 

So yeah, you can sleep safely tonight knowing that kiddies can play COD alongside you on XBL.

 

No, even a more focused law likely couldn't get through. SCOTUS ruled that any law restricting the sale of video games (or otherwise regulating them based on content) must pass the strict scrutiny standard. That may sound like a loophole, but it's essentially lawyer-speak that means that there may be, in some Platonic universe, a set of evidence so iron-clad as to be irrefutable that's also coupled with language that is astoundingly specific that may allow a law regulating games based on content to pass muster. But the reality is that a ruling that a law must pass strict scrutiny is essentially saying that no similar law would ever be found constitutional. The Court has only very rarely applied strict scrutiny to a law and found that it passes muster. Maybe twice i can think of off-hand, and those rulings are usually later overruled by a new Court.

 

This is as big a win as we could have hoped for; it's a home run, or a goal kicked from midfield for you Euro-types. Video games are speech. They essentially cannot be regulating based on content.

 

 

[Mr W Phallus]

I've not really made secret that I see nothing wrong with enforcing ratings on games, but meh you guys like to get in arms if someone mentions the word "first" and amendment together.

A fact I've always found deliciously ironic considering that, as an amendment, it's mere existence confirms the fallibility of the law in the first place.

[P4: Gritty Reboot]

This is as big a win as we could have hoped for; it's a home run, or a goal kicked from midfield for you Euro-types. Video games are speech. They essentially cannot be regulating based on content.

What is this in Starcraft terms?

[Mr. GOH!]

I've not really made secret that I see nothing wrong with enforcing ratings on games, but meh you guys like to get in arms if someone mentions the word "first" and amendment together.

A fact I've always found deliciously ironic considering that, as an amendment, it's mere existence confirms the fallibility of the law in the first place.

 

The Constitutional rights are rights that restrict government action. The Bill of Rights was built around the idea that laws could be bad and restrict hard-won freedoms. Legislative laws, on the other hand, all represent burdens upon freedom and liberty. In order to be valid, they need to not conflict with the liberties enshrined in the Bill of Rights and subsequent Amendments. If the Constitution is found to be insufferably fallible, it is amendable, by the people or the legislature, but it is very difficult, so the problems but be clear and almost universally agreed upon. I mean, we could repeal or change the First Amendment. Ain't gonna happen, but other Amendments and clauses have been repealed and altered.

[Thursday Next]

Seems to me that one of the major reasons this law didn't pass is because the ESRB and the Video Software Dealers Association (part of the EMA) already do what this law seeks to.

 

The EMA rules state: "Failure to comply with EMA's terms of use may result in the imposition of sanctions by the EMA pursuant to its enforcement policies, including, but not limited to, monetary fines, recall or relabeling of product, revocation of the right to use the logos, and commencement of litigation by the EMA."

 

I don't see how (in practical terms) having to sign up to a "voluntary" organisation that does pretty much what the legislation proposed to do is a massive victory for freedom.

 

At least government is accountable and transparent. You can't send a freedom of information request to a private company (at least not in this country) so all you've done is obfuscated the matter.

[Johnny]

This is as big a win as we could have hoped for; it's a home run, or a goal kicked from midfield for you Euro-types. Video games are speech. They essentially cannot be regulating based on content.

What is this in Starcraft terms?

 

In StarCraft terms this is like scouting your opponent's all-in cheese strategy and countering it flawlessly, rendering the opponent near-incapable of any further attacks.

[Mr. GOH!]

Seems to me that one of the major reasons this law didn't pass is because the ESRB and the Video Software Dealers Association (part of the EMA) already do what this law seeks to.

 

The EMA rules state: "Failure to comply with EMA's terms of use may result in the imposition of sanctions by the EMA pursuant to its enforcement policies, including, but not limited to, monetary fines, recall or relabeling of product, revocation of the right to use the logos, and commencement of litigation by the EMA."

 

I don't see how (in practical terms) having to sign up to a "voluntary" organisation that does pretty much what the legislation proposed to do is a massive victory for freedom.

 

At least government is accountable and transparent. You can't send a freedom of information request to a private company (at least not in this country) so all you've done is obfuscated the matter.

 

 

Actually, such reasoning has no place in Constitutional arguments. The Constitution restricts government power regardless of private agreements or organizations. The EMA could disband tomorrow and ratings could be abolished, but the ruling would still be pretty iron-clad precedent that could not be overturned. In legal terms, what you're making is a policy argument; whether the policy of the law would be served or be redundant or whatnot. Policy arguments are summarily discounted by the courts and the Court in constitutional cases. The debate is about the scope of government power, which is not contingent on whether the Court believes the exercise of that power is a good idea but rather on whether it it permissible in the face of Constitutional restrictions.

 

 

[P4: Gritty Reboot]

Valve featured the decision on their frontpage. Pretty cool

 

http://store.steampowered.com/

[CorgiShinobi]

I agree with you Dean in regards to it probably not being the end of the world if game ratings were enforced, and that developers "toning down" games is also silly. Still, with how things are currently ran, it would be redundant and a waste of government time and power. Forget any kind of previous court ruling, I just think this was too broad and pointless in our current state.

 

EDIT: You know, kinda like what Thursday Next said with the ESRB, and etc. If we didn't have the ESRB, I think attitudes about all of this would be drastically different.

Edited June 27, 2011 by Atomsk88

[deanb]

Yeah our laws (ish, more on that later) worked in the opposite direction in that hte 1984 Video Recordings act created the BBFC which up until last year rated video games. However it used to be ELSPA and it's now PEGI. PEGI are independent, they were the replacement due to the Digital Economy Bill 2010. ELSPA I can't find much on. I know they're now UKIE (Which also lacks anything on Wiki too) but I don't know where the change from ESLPA to BBFC came in. All I know is my game collection currently has all three's stamps on. Maybe someone older can fill in.

 

Either way PEGI is legally enforced by the VRA and DEB and given it's standing in Europe (most countries use it) I doubt it will be going away soon. I'd say it's use is somewhat surprising though. PEGI aren't just self-regulated, they're self-rating. Dev's fill out a questionnaire and essentially rate their own games.

 

In comparison the ESRB rate a game with a mix of questionnaire and videos of graphic game footage. Which seems weird. Also means they probably had to watch a full tape of DNF

BBFC actually play the game they're rating. And they were the ones Byron report called out on not being focused on gaming. They were probably doing a better job than the two ratings boards that specifically focus on games.

 

edit: sorry in case it wasn't obvious this was more of a ramble than making any particular point. Though the rating process for ESRB was enlightening.

[AgamemnonV2]

I've not really made secret that I see nothing wrong with enforcing ratings on games, but meh you guys like to get in arms if someone mentions the word "first" and amendment together.

It's not even up for discussion. If television and movies, which have a much further reach into influencing the population, aren't regulated by the government in any way shape or form then neither should video games. End of discussion. Period. Punto. It has ALWAYS been up to the retailers to use their judgement in regards to distribution. That judgement has never failed (yet). Putting forth Postal 2 as the main issue in the case just went to show how absolutely flimsy California's argument was--THE DAMN GAME ISN'T FOUND IN ANY RETAILER STORES. Hell, it's not even on popular online distribution stores. Add to the fact that everyone thought it was shit and it sold like shit and you're looking at someone making the argument that movies should be regulated by the government and your example you are using is the travesty known as Showgirls.

[CorgiShinobi]

I've not really made secret that I see nothing wrong with enforcing ratings on games, but meh you guys like to get in arms if someone mentions the word "first" and amendment together.

It's not even up for discussion. If television and movies, which have a much further reach into influencing the population, aren't regulated by the government in any way shape or form then neither should video games.

 

Though it's an independent agency of the United States government, it's still a function of government regulation. Just thought I'd add that, nothing more.

 

EDIT: I guess I'll add more to this post to give it some more worth.

 

The following quote from David Jaffe is how I've felt about this topic since it gained momentum in the media.

 

It's hard to be super excited or happy about the verdict because I'm not at all surprised. Of course they struck it down. Other than entertaining worst case scenarios for the sh*ts and giggles of it, it never entered my brain that there was any other way this would go. Constitutionally speaking, even a layperson such as myself could see it was an absurd bill that had no shot in hell at surviving. And to be perfectly frank, the game media's coverage- presenting the situation as if it were such an important issue for gamer's rights and then trumpeting the headline today when the bill was struck down as if they were announcing that man hand landed on the moon - only serves to embarrass our hobby. Gamers and the folks who write about games are much too smart to fall for this sort of nothingness draped in the clothes of import.

 

There are times to get angry and shout from the rooftops and fight for the ground breaking, life changing freedoms our countrymen have died for, but this was never one of those times. Not even close. If I thought America - for all of its problems and partisan bickering - was becoming a place where a bill like this actually had a shot in hell at being upheld, I would not be making video games. I'd be off in the woods learning how to toss hand grenades and prepping for the upcoming revolution.

I will say this as well, I'm glad this is over for the mere fact I won't have to listen to general statements from non-parents to parents on how they should raise their kids. I say "general" because that's how the comments would read, i.e. "Parents need to..." and so forth.

 

So, those without kids instructing bad parents on how to raise kids.

Edited June 28, 2011 by Atomsk88

[Thursday Next]

Seems to me that one of the major reasons this law didn't pass is because the ESRB and the Video Software Dealers Association (part of the EMA) already do what this law seeks to.

 

The EMA rules state: "Failure to comply with EMA's terms of use may result in the imposition of sanctions by the EMA pursuant to its enforcement policies, including, but not limited to, monetary fines, recall or relabeling of product, revocation of the right to use the logos, and commencement of litigation by the EMA."

 

I don't see how (in practical terms) having to sign up to a "voluntary" organisation that does pretty much what the legislation proposed to do is a massive victory for freedom.

 

At least government is accountable and transparent. You can't send a freedom of information request to a private company (at least not in this country) so all you've done is obfuscated the matter.

 

 

Actually, such reasoning has no place in Constitutional arguments. The Constitution restricts government power regardless of private agreements or organizations. The EMA could disband tomorrow and ratings could be abolished, but the ruling would still be pretty iron-clad precedent that could not be overturned. In legal terms, what you're making is a policy argument; whether the policy of the law would be served or be redundant or whatnot. Policy arguments are summarily discounted by the courts and the Court in constitutional cases. The debate is about the scope of government power, which is not contingent on whether the Court believes the exercise of that power is a good idea but rather on whether it it permissible in the face of Constitutional restrictions.

 

The ruling speaks at length (from page 15 of the pdf) about how the ESRB and EMA currently fulfil the need this act purported to fill.

 

The fact remains that you have turned control over to an unaccountable private company (or NPO, same difference) rather than vest control in a government that is duly elected by the people.

 

If the EMA decide to start pulling video games off the shelves tomorrow (which is expressly provided for in their contract) there's precisely nothing you can do about it. You can't write to your senator, you can't lobby the government, all you can do is write a strongly worded letter to the board of the EMA which they are in no way incentivised to respond to.

 

I find it odd that America is so fearful of handing power to its elected government, yet so eager to pony over control to a bunch of boardroom executives, I mean, have none of you seen Wall Street?

[Mr. GOH!]

Seems to me that one of the major reasons this law didn't pass is because the ESRB and the Video Software Dealers Association (part of the EMA) already do what this law seeks to.

 

The EMA rules state: "Failure to comply with EMA's terms of use may result in the imposition of sanctions by the EMA pursuant to its enforcement policies, including, but not limited to, monetary fines, recall or relabeling of product, revocation of the right to use the logos, and commencement of litigation by the EMA."

 

I don't see how (in practical terms) having to sign up to a "voluntary" organisation that does pretty much what the legislation proposed to do is a massive victory for freedom.

 

At least government is accountable and transparent. You can't send a freedom of information request to a private company (at least not in this country) so all you've done is obfuscated the matter.

 

 

Actually, such reasoning has no place in Constitutional arguments. The Constitution restricts government power regardless of private agreements or organizations. The EMA could disband tomorrow and ratings could be abolished, but the ruling would still be pretty iron-clad precedent that could not be overturned. In legal terms, what you're making is a policy argument; whether the policy of the law would be served or be redundant or whatnot. Policy arguments are summarily discounted by the courts and the Court in constitutional cases. The debate is about the scope of government power, which is not contingent on whether the Court believes the exercise of that power is a good idea but rather on whether it it permissible in the face of Constitutional restrictions.

 

The ruling speaks at length (from page 15 of the pdf) about how the ESRB and EMA currently fulfil the need this act purported to fill.

 

The fact remains that you have turned control over to an unaccountable private company (or NPO, same difference) rather than vest control in a government that is duly elected by the people.

 

If the EMA decide to start pulling video games off the shelves tomorrow (which is expressly provided for in their contract) there's precisely nothing you can do about it. You can't write to your senator, you can't lobby the government, all you can do is write a strongly worded letter to the board of the EMA which they are in no way incentivised to respond to.

 

I find it odd that America is so fearful of handing power to its elected government, yet so eager to pony over control to a bunch of boardroom executives, I mean, have none of you seen Wall Street?

 

Yes, the Court outlines several reasons why the law doesn't pass strict scrutiny. But that is a legal sideshow; if the ESRB were to dissolve tomorrow, many other facts could be found to make a similar law fail to pass muster. Strict scrutiny essentially means that if there's any reason, even outlandishly hypothetical ones, why a law might violate the relevant Constitutional Amendment or Clause, the law will fail. I know that seems odd, but, honestly, that's the way it works.

 

Sure, the ESRB and the MPAA rate stuff for content. But not everything. And it's not *necessary* to partake. Concerted action by consumers or publishers could change the status quo. Government regulations are more pernicious; candidates aren't voted in on one issue, but a host of issues. Even if the majority want something, if the intensity of that desire is insufficient, it will go unmet. But when you're dealing with private entities, they'll react to specific wants of the public much more quickly, theoretically.

 

Thursday next: I work in financial regulation with Wall Street brokerages. I know exactly what you speak of and I agree that the people should not cede control of the country to corporate oligarchs. But that's not what the ESRB is.

[AgamemnonV2]

Seems to me that one of the major reasons this law didn't pass is because the ESRB and the Video Software Dealers Association (part of the EMA) already do what this law seeks to.

 

The EMA rules state: "Failure to comply with EMA's terms of use may result in the imposition of sanctions by the EMA pursuant to its enforcement policies, including, but not limited to, monetary fines, recall or relabeling of product, revocation of the right to use the logos, and commencement of litigation by the EMA."

 

I don't see how (in practical terms) having to sign up to a "voluntary" organisation that does pretty much what the legislation proposed to do is a massive victory for freedom.

 

At least government is accountable and transparent. You can't send a freedom of information request to a private company (at least not in this country) so all you've done is obfuscated the matter.

 

 

Actually, such reasoning has no place in Constitutional arguments. The Constitution restricts government power regardless of private agreements or organizations. The EMA could disband tomorrow and ratings could be abolished, but the ruling would still be pretty iron-clad precedent that could not be overturned. In legal terms, what you're making is a policy argument; whether the policy of the law would be served or be redundant or whatnot. Policy arguments are summarily discounted by the courts and the Court in constitutional cases. The debate is about the scope of government power, which is not contingent on whether the Court believes the exercise of that power is a good idea but rather on whether it it permissible in the face of Constitutional restrictions.

 

The ruling speaks at length (from page 15 of the pdf) about how the ESRB and EMA currently fulfil the need this act purported to fill.

 

The fact remains that you have turned control over to an unaccountable private company (or NPO, same difference) rather than vest control in a government that is duly elected by the people.

 

If the EMA decide to start pulling video games off the shelves tomorrow (which is expressly provided for in their contract) there's precisely nothing you can do about it. You can't write to your senator, you can't lobby the government, all you can do is write a strongly worded letter to the board of the EMA which they are in no way incentivised to respond to.

 

I find it odd that America is so fearful of handing power to its elected government, yet so eager to pony over control to a bunch of boardroom executives, I mean, have none of you seen Wall Street?

Your whole argument hinges on someone who has to start hating money. Which is never going to happen. Ergo they're never going to do something like damage what's making them buku money currently. And even on the off-chance that 2/3's of a ruling board decision just happened to be nucking futs they'd just be kicked off by shareholders.

 

Governments are there to regulate the people. If they pull a product off a shelf, they still get paid the same. They won't catch hell for it--instead, they'll probably get promoted.

 

So, yes, I'll go with the free market rather than some 60-year-old grandpa who names off Mario and Pac-Man when video games are mentioned.

[deanb]

And even on the off-chance that 2/3's of a ruling board decision just happened to be nucking futs they'd just be kicked off by shareholders.

 

Since when do the ESRB and EMA have Shareholders? And since when do they make they make much money? Even if we were to go under the assumption that the current prices of rating a game have been consistent and all games rated were AAA then over it's 17 year history the ESRB would still have only made $80million tops. It's not exactly a massive money spinner, especially when you take into account not every game is a AAA title going for the full rating fee. The $80million is the theoretical maximum.

 

This will end up wildly off topic but:

Governments are there to regulate the people.

 

And the companies just govern themselves?

(I don't even know why I put a question mark on it)

[Thursday Next]

Yes, the Court outlines several reasons why the law doesn't pass strict scrutiny. But that is a legal sideshow; if the ESRB were to dissolve tomorrow, many other facts could be found to make a similar law fail to pass muster. Strict scrutiny essentially means that if there's any reason, even outlandishly hypothetical ones, why a law might violate the relevant Constitutional Amendment or Clause, the law will fail. I know that seems odd, but, honestly, that's the way it works.

 

Sure, the ESRB and the MPAA rate stuff for content. But not everything. And it's not *necessary* to partake. Concerted action by consumers or publishers could change the status quo. Government regulations are more pernicious; candidates aren't voted in on one issue, but a host of issues. Even if the majority want something, if the intensity of that desire is insufficient, it will go unmet. But when you're dealing with private entities, they'll react to specific wants of the public much more quickly, theoretically.

 

Thursday next: I work in financial regulation with Wall Street brokerages. I know exactly what you speak of and I agree that the people should not cede control of the country to corporate oligarchs. But that's not what the ESRB is.

 

I'm not disputing that the bill would have failed on other grounds, I'm just pointing out that there is very little difference between the government enforcing the rating of games and a private company doing it, to my mind the government is a better choice since:

 

1. Government is subject to a high degree of transparency as they can be forced to disclose a great deal of information by "Freedom of Information Requests", a company or NPO like the ESRB or the EMA can ignore such requests and operate in the shadows (apologies for loaded wording).

 

2. The Government is accountable to the people. While elections are fought on a number of platforms, in close run elections small issues can be make or break a vote. If the government is found to be abusing its power in any area they can be punished at a regional or national level, a company / NPO is accountable to no one but their shareholders. If they can make money by imposing huge fines and/or threats to ban games (all of which you may never know about due to point 1) they will continue to do so.

 

3. Longevity. Governments change on a local and national level regularly and at fixed times. A companies board of directors may not change for a lifetime. You're concerned with a 60 year old elected official with a fixed four year term making choices for you, how is that worse than a 60 year old unelected (by you) director doing so, not only without your consent, but without your knowledge and until he chooses to retire.

 

Something that you probably don't know is that certain, nameless publishers fork out literally millions of dollars in fines to the ESRB/EMA. While membership is technically voluntary, in all practicality it's mandatory and now that the system is in place, it's almost impossible to break free of it. If the ESRB and EMA decided that from tomorrow M rated games could only be dealt "under the counter" with no marketing, that's what the industry would do.

 

The power the EMA has over the industry causes me far greater concern than a law restricting the sale of one class of video games to one class of consumers does.

[AgamemnonV2]

And even on the off-chance that 2/3's of a ruling board decision just happened to be nucking futs they'd just be kicked off by shareholders.

Since when do the ESRB and EMA have Shareholders? And since when do they make they make much money? Even if we were to go under the assumption that the current prices of rating a game have been consistent and all games rated were AAA then over it's 17 year history the ESRB would still have only made $80million tops. It's not exactly a massive money spinner, especially when you take into account not every game is a AAA title going for the full rating fee. The $80million is the theoretical maximum.

The EMA is made up of a group of retailers. Not sure where he was talking about the ESRB having the power to do anything but rate video games. With or without a rating, it's still up to the retailer to sell it.