1
2
3	“Censorship reflects society's lack of confidence in itself. It is a hallmark of an authoritarian regime.” ~Justice Potter Stewart
4	Introduction Video game creativity and expression can be stifled by political and social efforts to ‘protect children’ and enforce morality. Thus far, the courts have served as the last line of defense for the industry, and have invalidated all censorship efforts. This battle is being fought at the local, state, federal and international levels. The industry must remain ever vigilant in an effort to foster a culture of free expression, while working to address any genuine concerns of parents and regulators.
5	Censorship Efforts: The War on Video Games Family values groups incessantly pressure legislators to censor video games. Past legislative attempts have failed due to enforcement of First Amendment rights by the courts. The industry may be winning the PR war, but must continue efforts to educate parents, advocacy groups and legislators on the lack of harm, and the importance of free expression.
6	The First Amendment & Video Games Video games = Free Speech. In order to regulate speech, the Government must meet the “Strict Scrutiny” Test: Compelling state interest. Use of least restrictive means. No censorial intent. Few regulations meet the strict scrutiny test.
7	The Fine Balance… Protecting the Constitution vs. Protecting Children Protecting children is generally accepted as a compelling state interest, hence the ubiquitous “Harmful to Minors” laws. Sexual content is sometimes capable of regulation, while content containing violence and drugs is more difficult to restrict. Religious groups use the catchphrase of “protecting children” to further moral agendas including censorship of video games. Government must also prove the existence of some ‘harm’ resulting from the speech it wants to regulate.
8	The Miller Test Sexually Explicit Content Evaluated by the Miller Test from Miller v. California: 1) Does the material depict sexual activity or lewd display of the genitals in a patently offensive manner? 2) Does the material appeal to the prurient interest in sex, nudity or excretion? 3) Does the material lack serious literary, artistic, political or scientific value? [Prongs 1 & 2 based on contemporary community standards]
9	Victories for the Video Game Industry The Courts have consistently ruled that video games are protected speech. Oklahoma (September, 2007) California (August, 2007) Louisiana (November, 2006) Minnesota (July, 2006) Michigan (April, 2006) Illinois (December, 2005) Washington (July, 2004) St Louis (June, 2003) Indianapolis (March, 2001)
10	Recent Legislative Trends Throughout 2005-2007, a national trend developed with several states proposing bills restricting the sale of video games. Recently, the incidence of this legislation has declined. Possible reasons include prior court victories and fear of political embarrassment.
11	Federal Legislative Attempts Congress appears to still be interested in video game regulation. These particular bills have been tabled, but we are sure to see similar proposals in the coming sessions. Children Protection from Video Game Violence & Sexual Content Act (HR 2958) – Directs the FTC to review the ESRB and to commission the GAO to study the impact of video games on minors. (Senate companion bill: S.1902) Truth in Video Game Rating Act (S.568) – Requires the ESRB to review all content before assigning ratings. Introduced by Sam Brownback (R-KS). Video Game Decency Act of 2007 (HR 1531) – To prohibit deceptive acts in the content rating of video games. Result of the Hot Coffee mishap.
12	Recent State Action California – An Appeal has been filed by Gov. Schwarzenegger with the 9th Cir. Court of Appeals in an attempt to reverse Judge Whyte’s ruling that the law is unconstitutional. It will probably be 2009 before a final ruling is rendered.
13	Recent State Legislative Trends Wisconsin – State Sen. Jon Erpenbach has proposed a 1% sales tax on video games and game consoles to fund rehabilitation programs for juvenile delinquents. Substantial First Amendment issues raised based on content discrimination. New Mexico – HB 583, Leave No Child Inside Act, proposes a 1% excise tax on games, consoles and TVs to fund outdoor education programs for children. The Bill was introduced by Rep. Gail Chasey (D) and is now before the House Business & Industry Committee.
14	What has Jack Thompson Been Up To Lately? “They are about to pay a wicked price, and I aim to make sure they pay it.” -- Jack Thompson
15	Playa-Hater Jack Thompson Thompson, vocal video game antagonist, is currently under review by the Florida Bar for five counts of professional misconduct. A ruling is not expected until later this year. Judge Dava Tunis, the Bar Examiner appointed by the FL Supreme Court, must review a very lengthy court file, due to Thompson’s voluminous exhibits. Thompson filed a civil suit against the FL Bar, which was recently dismissed by U.S. District Court Judge Adalberto Jordan.
16	Thompson Dis’ed Again, This Time in New Mexico Posey v. Take Two/Sony was dismissed by Judge Valerie Huling in Albuquerque, NM based on lack of jurisdiction and failure to state a claim. Thompson filed a wrongful death suit against T2/Sony after 14 year-old Cody Posey killed his father, stepmother and stepsister, supposedly incited and influenced to kill his family after playing Grand Theft Auto. It was later revealed in Posey’s juvenile court hearing that he was sexually and physically abused. Thompson was involved in a similar case in Alabama, Strickland v. Sony. He lost his pro hac vice status, preventing him from continuing as counsel of record on the case.
17	Thompson alleges “Unholy Alliance” between Video Game Industry and the Department of Defense Thompson has now decided to take on the entire Army! Recent Press Release alleges DoD uses video games as recruitment tool. Cites false reports that Virginia Tech shooter played ‘Counter Strike.’ Claims Military is teaching that war is glamorous and free of consequences. Calling attention to this “Unholy Alliance” will be one of Thompson’s New Year’s Resolutions for 2008
18	What Does the Future Hold? Numerous losses in court have yet to completely dissuade censorship advocates. It may only be a matter of time before lawmakers tweak their strategies and carve new niches for successful legislation.
19	Call to Action !! 2008 - It’s an Election year! Sex and Violence are always attractive political targets. The industry must continue its efforts to elect representatives who will uphold free speech rights and not bow to the censorship pressures of ‘family values’ candidates.
20	The Major Players
21	A Look at Some of the Presidential Candidates’ Positions on Censorship… Sen. Hillary Clinton – A renowned anti-videogame activist, she has said that she will continue to support video game regulation if elected president.
22	"Sen" Sen. Barack Obama – “I would call upon the video game industry to give parents better information about programs and video games by improving the voluntary rating system we currently have…And even if the industry does do some responsible self-policing, there's still a role for the federal government to play. We need to understand the impact of these new media better. That's why I supported federal funding to study the impact of video games on children's cognitive development.” – Kotaku.com Obama praised the new technical innovations that have allowed parents better control over what their children play, but stated the ratings system needed to be made clearer. “If the industry doesn’t, then my administration would,” he said. Cinemablend.com
23	"Gov" Gov. Mitt Romney – “I want to restore values so children are protected from a societal cesspool of filth, pornography, violence, sex, and perversion. I've proposed that we enforce our obscenity laws again and that we get serious against those retailers that sell adult video games that are filled with violence and that we go after those retailers.” – Kotaku.com
24	John McCain McCain supports legislation that requires warning labels on violent media products similar to cigarette warning labels. Calls for a close look at the “entertainment media and the violent images…with which they are bombarding our children.” -- OnTheIssues.org
25	Mike Huckabee ???
26	What’s at Stake? Congress has repeatedly called for independent research on the connection between violent video games and violence in children and uses this correlation to justify censorship. The winner of the 2008 Election will decide the policy of the federal government with regard to video games. The President also appoints all federal judges and Supreme Court Justices.
27	Video Games ≠ Violent Behavior It’s called logic. “Before” does not mean “because.” The Video Game Industry needs to clearly and overwhelmingly debunk these theories with its own extensive research on the subject.
28	International Perspectives on Video Games & Censorship
29	Germany Germany has some of the strictest video game censorship laws in Western Europe. Laws prohibit the sale of Counter-Strike, and other games that depict blood and violence. After a school rampage left 3 dozen people injured or dead, German politicians suggested outlawing the sale and distribution of video games deemed violent. The Interior Minister petitioned the Bundesrat to outlaw games if a link is established between violent behavior and violent gaming. German politicians are lobbying for pan-European Union restrictions on violent video games.
30	Although Germany has some of the strictest regulations of Western Europe, the gaming population still thrives.
31	Australia Australia has been very aggressive in censoring and banning video games. The Office of Film & Literature Classification has “refused classification” to a number of games, including: Manhunt 2 Dark Sector Grand Theft Auto III NARC Marc Ecko’s Getting Up: Contents Under Pressure This game was banned for “promoting crime,” in this case, graffiti. Australia does not have an R-rating for games, instead games are refused classification. Thus, games deemed unsuitable for players age 15 and older are banned altogether.
32	China China has extensive censorship laws, banning games that divulge state secrets, damage the nation’s glory, or disturb social order. The Swedish game, Hearts of Iron, was banned for “distorting historical facts and damaging China’s sovereignty.” China also has “fatigue laws,” limiting MMORPG players’ game time to three hours. The country also banned children from Internet cafes, altogether.
33	India India’s Parliament is considering a ban on violent video games. The Censor Board of India supports a proposal that all games be censored. A draft is being considered by the Ministry. The proposal will make it mandatory for game manufacturers to have a certificate on the cover of the game, and the Censor Board will classify each game according to suitable age groups.
34	Brazil A judge in Brazil has banned the games Counter Strike and Everquest, ruling that these games incite violence and are harmful to consumer health. Judge Carlos Alberto Simoes went so far to say that the games “encouraged the subversion of public order, were an attack against the democratic state and the law and against public security.”
35	Manhunt 2 Banned in a Number of Countries The United Kingdom Ireland Italy Switzerland Australia New Zealand
36	The World Stage The U.S. is not alone in its fight to preserve creative expression in video games. Our constitution provides the greatest protection for artistic freedom. What works in other countries will not be tolerated in the U.S. Videogame opponents will continue to seek ways to limit distribution of certain videogames; both in the U.S. and internationally.
37	The Role of Role Playing Games…
38	Art Imitating Life? Role-playing games offer avatars an escape from reality, but are also causing real world legal concerns. Games like Second Life are increasingly becoming catalysts for setting legal precedents. Virtual property rights? Civil suits between avatars? Cyber-bullying?
39	Second Life Land Deal Lawsuit Settled Bragg v. Linden Research, Inc. – After Marc Bragg, aka Marc Woebegone, found a way to purchase virtual property and resell for a profit, Linden Labs caught wind and terminated his account. Bragg sued Linden Labs for breach of contract and unfair trade practices in West Chester, PA. The Settlement terms were not disclosed.
40	Legal Implications of Bragg Case As a result of this case, Linden Labs changed its Terms of Service after a Judge ruled that the TOS “constituted a contract of adhesion” and was not valid. Decision can be critical to enforcement of user terms throughout the online gaming industry. All are probably ‘adhesion’ contracts, but should be enforced nonetheless.
41	Second Life Resident Sues Another for Copyright Infringement Eros, LLC v. John Doe – Kevin Alderman, aka Stroker Serpentine, is suing John Doe (avatar Volkov Catteneo) for copying his SexGen Bed. The SexGen Bed is a virtual bed that allows players to choose from over 150 sexually animated scenes. Retail: 4,000 Linden Dollars. Defendant’s true identity is unknown; Plaintiff intends to obtain identity via Subpoena.
42	Second Life Bans Online Gambling, Unregulated Banks Second Life follows suit, bans online gambling after UIGEA took effect. After the ‘World Stock Exchange’ robbery and Ginko financial collapse, Second Life bans unregulated banks: “Any bank, ATM from offering interest or any direct return on an investment, unless it has proof of a real world government registration or financial institution charter.” Ginko ended up owing more than $750,000 to customers after experiencing a run on the bank, depleting reserves.
43	Risky Business The Journal of Business Law Society warned Linden Labs of risks of real world litigation: “By not taking efforts to ensure that commercial activity in Second Life is conducted in a transparent manner, Linden Lab is in essence putting their stamp of approval on ventures like Ginko…If a court determines that Linden Lab is liable for fraudulent activities that take place within Second Life, they may be overwhelmed with suits.”
44	Cyber-Bullying: How Real is the Threat?
45	Cyber-Bullying: Xbox Live Terry Haynes has received several racial threats and has been the victim of cyber-bullying while playing Xbox Live. Mr. Haynes fears these virtual threats will transport to the real world, harming him and his family. What is Microsoft’s policy? Haynes says 10 instances req’d. Microsoft has agreed to assign an investigator to investigate threats.
46	Legal Questions to Ponder… Should a distinction exist between conduct and expression in reality as compared with online venues? Can virtual crimes occur? Who ‘owns’ virtual property? Should the government regulate or tax virtual money?
47	Conclusion Virtual world of video games starting to intersect with reality; in law and society. Increased realism in games spurs more censorship efforts, as gaming violence and sex become more real. Legislative efforts have slowed, but pressure may come next from the federal government. Successful censorship efforts in other countries may spur additional attempts in the U.S. The industry can never put its guard down, and must anticipate the next battle in both the courts, and the court of public opinion.