Video-game groups challenge California law

Tuesday, October 18, 2005

SAN JOSE, Calif. — Two trade groups representing video-game makers filed a lawsuit yesterday seeking to overturn a new California law banning the sale or rental of violent video games to minors.

The Video Software Dealers Association and Entertainment Software Association contend the law violates free-speech rights guaranteed by the First Amendment, according to the lawsuit filed in U.S. District Court in San Jose. The suit names Gov. Arnold Schwarzenegger, who signed the bill on Oct. 7, state Attorney General Bill Lockyer and other government officials.

The law, which is set to take effect Jan. 1, bans retailers from selling or renting violent video games to those 17 and under, imposes a $1,000 fine on violators and mandates stricter product labeling. The law, which was introduced by California Speaker of the House Pro Tem Leland Yee, D-San Francisco/Daly City, targets games that are “cruel” or “heinous” in their nature, where the player intents to inflict “serious physical abuse” on a virtual victim.

California's law is similar to legislation passed in Illinois and Michigan earlier this year after hidden sex scenes were discovered in a popular game, “Grand Theft Auto: San Andreas.” Public complaints also spurred a Federal Trade Commission investigation and a new rating for the “San Andreas” game from “M” for mature to “AO” for adults only.

Schwarzenegger defended the law, saying it would help parents determine which video games were appropriate for their children.

“I believe strongly that we must give parents the tools to help them protect their children,” the governor said in a statement. “I will do everything in my power to preserve this new law and I urge the attorney general to mount a vigorous defense of California's ability to prevent the sale of these games to children.”

The industry groups, which have similar lawsuits pending in Illinois and Michigan, equated the California law to “content-based censorship” in its latest lawsuit. “Video games are a form of artistic expression much like other forms of protected expression, such as movies, books and music,” the lawsuit states.

Industry representatives say they are confident the California law will fail to survive the legal challenge, as federal courts have struck down similar statutes in recent years.

“It is not up to any industry or the government to set standards for what kids can see or do; that is the role of parents,” said Douglas Lowenstein, president of the Entertainment Software Association.

Sean Bersell, vice president of public affairs for the Video Software Dealers Association, told the First Amendment Center Online that “the law is unconstitutional, there is no question in my mind.”

“This issue came up in the '80s, when we were dealing with Pong-types of games, and asking, ‘Is that really speech?’” Bersell said. “Now everyone concedes that video games are protected speech.”

Bersell contends that today’s video games are “intricate, multi-layered stories,” protected under the First Amendment.

Randall Hagar, director of government affairs at the California Psychiatric Association, told the First Amendment Center Online that California's new law was drafted with the aid of constitutional experts to ensure that it did not violate the First Amendment.

“Obviously, we don’t believe there is an incursion or erosion of the First Amendment,” Hagar said.

He contends that because the law doesn't ban the sale of the games — only prohibiting minors from purchasing them — it does not violate any constitutional right.

“The fact is, it doesn’t restrict access to minors, it just provides that they cannot purchase the video games themselves,” Hagar said. “If the families want to provide them, that’s fine, it doesn’t restrict them.”

Hagar says violent video games negatively affect children and therefore the sale of such games should be restricted.

“Our specialized child psychiatrists are constantly seeing kids who are disturbed with psychiatric symptoms and it’s very clear — and it’s been very clear for 20 years — that their interaction with screened media of all sorts has an impact on their mental health and sometimes the severity of illness symptoms they experience,” Hagar said.

Jane E. Stevens, public policy coordinator for the California Partnership to End Domestic Violence, says her organization sees a correlation between “real” violent acts and “virtual” violent games.

“We believe that our culture supports a framework of toleration for violence which allows spousal abuse to flourish, and we see this restriction of a game in which children 'virtually' perpetrate heinous acts of violence against women, ethnic minorities and clergy as a step toward primary prevention of violence,” Stevens said in an e-mail to the First Amendment Center Online.

“It is not censorship but an attempt to keep a military training tool out of the hands of children,” Stevens said.

Representatives from the video-game associations say it is not in a state’s best interest to adopt constitutionally contentious laws.

In an Oct. 7 press release, Bo Andersen, president of the Video Software Dealers Association, said: “Instead of passing laws that are destined to be overturned by the courts, the state of California should be encouraging parents to use the existing video game ratings and content descriptors to make informed choices about whether to bring a particular video game into their home.”

Bersell added, “The parent needs to make an informed decision if a game is suitable for their child. We think, rather than using these unconstitutional laws, they (lawmakers) should instead educate the parents about the games their children are playing.”

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