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ESA to sue the State of California.

The Entertainment Software Association is planning to sue the State of California over the passage of AB1179, a bill that has outlawed the sale of violent video games to minors. President Douglas Lowenstein said that he "intends to file a lawsuit to strike this law down," and added that he is "confident that we will prevail."

Is this a case of the ESA throwing respect for laws meant to protect children to the wind?

When one peers below the surface of the headline, one sees a number of interesting facets to this development. For example, proponents of the law point to R-rated movies, the ability to buy alcohol (or cigarettes), and other such things as precedents for the law. But in reality, the situation is more complex. In the case of movie ratings, they are established by a private entity (the MPAA no less), and the industry as a whole follows them. AB1179, on the other hand, puts the government in the business of establishing and enforcing ratings: something that they do not to with regards to either movies or television. Of course, the gaming industry doesn't lack a ratings board: that's precisely what the ESRB does already. California, however, wants to get into the game.

Now, in the case of buying, say, a pack of beer, the government does establish and enforce those laws. However, it should be noted that the laws are simple and easy to enforce. If the state law makes it illegal to buy alcohol until one is 21, there's nothing arbitrary about its enforcement. You are either 21, or you are not (of course, many people would be correct to note that the choice of 21 itself is arbitrary, but my point here is that the enforcement is not). AB1179, however, is arbitrary because it's not enforceable by an objective standard such as age, but by interpretation.

Let me illustrate this by example (sorry, but this is going to make for a long news report). Here's Californian law on the sale of alcohol to minors (25658b).

(a) Except as otherwise provided in subdivision (c), every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.

(b) Any person under the age of 21 years who purchases any alcoholic beverage, or any person under the age of 21 years who consumes any alcoholic beverage in any on-sale premises, is guilty of a misdemeanor.

Crystal clear. Now, here's the relevant portion of the law on the sale of "violent" video games to minors. I've added emphasis in a few instances:

(1) "Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.

(2) For purposes of this subdivision, the following definitions apply:
(A) "Cruel" means that the player intends to virtually inflict a high degree of pain by torture or serious physical abuse of the victim in addition to killing the victim.
(B) "Depraved" means that the player relishes the virtual killing or shows indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim.
(C) "Heinous" means shockingly atrocious. For the killing depicted in a video game to be heinous, it must involve additional acts of torture or serious physical abuse of the victim as set apart from other killings.
(D) "Serious physical abuse" means a significant or considerable amount of injury or damage to the victim's body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse, unlike torture, does not require that the victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing.
(E) "Torture" includes mental as well as physical abuse of the victim. In either case, the virtual victim must be conscious of the abuse at the time it is inflicted; and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.

(3) Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim's body, and helplessness of the victim.

Crystal clear? No way, no how. (And am I the only person who finds notions of pain and suffering odd in what is effectively non-reality? Can you intend to cause pain to something that, well, doesn't feel or perceive pain? But I digress from my my point, here.)

And that, my good friends, is the crux of the matter. "Prevailing standards," "reasonable persons," and "intentions" (among so many other unclear and questionable definitions and qualifications) make for murky legislation, which to some look like end-runs around free speech issues.

Indeed, similar laws have been passed in Missouri, Indiana, and Washington, only to be overturned on free speech issues. A law passed in Illinois is currently being challenged in court, and it will likely suffer the same fate. Courts have made it clear that video games are covered by the same First Amendment protection as television, movies or books and have not bought into arguments that there is a causal relationship between video violence and real violence.

Some people have argued that the ESRB ratings are confusing, but this Californian law takes the cake. One wonders why California didn't simply adopt the ESRB ratings, although two thoughts come to mind. They likely don't feel that they go far enough, and furthermore, the recent snafu involving the infamous Hot Coffee mod has the ESRB looking a little dull right now. Suffice it to say, adopting the ESRB's voluntary ratings system as a basis for enforcement would still likely suffer the same Constitutional difficulties.

If I were in a cynical mood, I'd not only note that this law is doomed, but I'd probably make a comment or two about it being ramp-up time for next year's gubernatorial election in California, plus there will be plenty of legislative seats up for grabs as well (across political parties, mind you).

Posted by Directory of Games on October 11.

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