Try as we did, we couldn't find Judge Wapner.
It’s over. The controversial case of Brown vs. EMA/ESA, otherwise known as The California Violent Videogame Law, has been settled by the Supreme Court of the United States, with a 7-2 vote overturning it. Justices Scalia, Kennedy, Ginsburg, Sotomayor, Kagan, Alito, and Chief Justice Roberts voted to strike down the law while Justices Thomas and Breyer dissented. The prevailing opinion, as written by Justice Scalia, was that the law violated the First Amendment, though Justice Alito (joined by Chief Justice Roberts) in his concurring judgement, cited the vagueness of the law. Justice Thomas, in dissenting opinion, argued essentially that the First Amendment does not apply when dealing with direct communication with a minor when the parents are not complicit (without going into the law itself so much). Justice Breyer, meanwhile, simply argued that the law as written does not violate the First Amendment, at least not to a significant degree.
Many places are covering this decision, and the whole decision makes for some interesting reading. We’re going to try to give our perspective on the proceedings.
With a 7-2 decision, there were still four opinions - This part was quite interesting. Five Justices said it violated the First Amendment, two said it was too vague in its definition, one said the First Amendment doesn’t apply when direct communication with children is involved, and one didn’t find the law violated the First at all. This is certainly giving Leland Yee the thought that he might be able to rewrite the law into something that would get majority approval from the Supreme Court. The numbers were encouraging to gamers, but the differing opinions were apparently encouraging to Mr. Yee.
It proved that the First Amendment argument was indeed the most powerful tool - We weren’t all that thrilled that the First Amendment card was played so heavily by the EMA/ESA (though we certainly understood why they went with this strategy) as we thought there were bigger problems with the law that they could go after. But considering that five Justices concurred and that it was the prevailing factor in the decisions of seven of the Justices, it showed just how powerful constitutional amendments are with these kind of legal arguments. It was the easist and most powerful argument they could make, and it worked.
The vagueness of the law was a concern - This was our biggest problem with it. It left too much open to interpretation, and you just didn’t know who would be deciding on what games would be considered violent at the end of the day. Put the wrong people on the committee (or really scary, the wrong person as the “czar”), and you could have slapped that big ol’ “18″ sticker on almost anything. As gamers who sometimes like to play more grown up titles when the kids are in bed, this was worrisome.
It’s still up to us - Sorry to all those parents who hoped the government would help you do your job. You’ll just have to keep an eye on what your kids are playing and talk to them about what’s appropriate for them. And this law wouldn’t have helped the parent who buys Call of Duty for their 11-year-old anyways.
Video games should be safe, for now - This decision should put a damper on efforts by some politicians to regulate video games. Even though pretty much every court challenge of these types of laws has been successful, the Supreme Court ruling should be the final nail in the coffin, at least until Mr. Yee tables something else. In fact, Utah have given up on their attempts to pass a similar law in the wake of this decision. Of course, that doesn’t mean somebody should go out and make a game about raping and killing child zombies, better known by its working title, Postal 4. (We’re joking. We don’t want to give Running With Scissors any more ideas, given that Postal 2 was essentially Exhibits A through Z for California.)
This is not a “sad day for children and families” – A note to the special interest groups crying over the decision: Stop trying to talk for us. We don’t agree with your policies, and as a father of three young boys, I don’t feel any more concerned today than I did before the decision came down. That’s because I monitor what my kids play to the best of my ability and only provide them with the games I want them to play.
Leland Yee is a sore loser - Shockingly, Yee in his response went for the easy targets, saying that the court “once again” put the interests of corporate America before the children, and railing on Wal-mart and the video game industry and the billions of dollars they make. Oh, and profits trump the rights of parents and the well-being of children apparently. The spin is almost masterful, really. But, keep recycling those easy talking points and convenient targets so that people won’t pay attention to how much money you wasted in trying to defend what ends up being a rather poorly written law that was too narrow in scope.
The ESRB system is all we need - We know it works, and the amount of info that the ESRB provides with game ratings is ridiculously thorough. We didn’t need another system. Actually, if Yee had included the ESRB standard for making sales of M rated games to the under 17 set illegal, we might have been more behind it. Of course, I’m sure the government would have found a way to mess it up, and the ESRB likely wasn’t all that keen on any government oversight. Still, we don’t like the thought of unscrupulous retailers sabotaging our efforts to keep inappropriate games out of the hands of our kids, and while a deterrent would have been nice, it needed to be better than this.
As gaming parents, while the thought of formalizing punishment for selling inappropriate games to our kids without our knowledge is a good idea in theory, the attempt was poor, and didn’t do enough to stay off the toes of the First Amendment. Plus, it was too vague and thus, left the door wide open for liberal interpretations that could have had a severely chilling effect on the gaming industry. Sure, we like family-friendly games, but we also like games we can play when the kids are in bed. This law simply wasn’t good enough and was put to rest. Let’s hope we don’t have to deal with this again for a very long time.
