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Silencing the Censors: Recent Developments in the Battle for Free Expression in Game Development By Lawrence G. Walters, Esq. Weston, Garrou, Walters & Mooney Introduction

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Silencing the censors recent developments in the battle for free expression in game development l.jpg
Silencing the Censors: Recent Developments in the Battle for Free Expression in Game Development

By Lawrence G. Walters, Esq.

Weston, Garrou, Walters & Mooney

Introduction l.jpg
Introduction Free Expression in Game Development

  • Creativity and expression in game development can be stifled by political and social efforts to ‘protect children’ and enforce morality.

  • So far, the courts have served as the last line of defense for the gaming industry, and have successfully invalidated all censorship efforts.

  • This battle is being fought at the local, state, federal and international levels.

  • Family values groups are pushing novel approaches to accomplish censorship goals.

  • Political correctness is working its way into video game regulation.

  • Game Developers must remain on their guard to stem the tide of censorship.

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The Push for Censorship Free Expression in Game Development

  • Family values groups are a vocal advocate for censorship efforts and actively pressure legislators.

  • To date, legislative attempts have failed in the courts due to First Amendment protections.

  • Censorship advocates have learned from prior mistakes in court.

  • Current focus is on generating relevant evidence to link video games with aggressive behavior.

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How Did This Happen? Free Expression in Game Development

  • Early videogames were only marketed to children.

  • Nintendo, which dominated the industry for years, imposed “Game Content Guidelines” which prohibited violence, sex, profanity, stereotypes, racism, drugs, alcohol, and politics.

  • Publishers have struggled with this historical anchor for years.

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U.S. v. Japan – The Culture War Free Expression in Game Development

  • Japanese culture is more tolerant on issues of nudity and violence.

  • Japanese videogames are marketed to both adults and children.

  • Nintendo would often censor Japanese versions of games before being published in the U.S.

  • This nude statue in Castlevania IVwas "clothed" in the US release.

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‘Da Rules Free Expression in Game Development

  • Guns can only be used against robots, zombies and non-humans.

  • Knives and swords can only be used against armed opponents.

  • Civilian and friendly characters cannot be offensively attacked.

  • Corpses must vanish quickly.

  • No Blood! (Pre Mortal Combat II)

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Blood, Sweat & Tears Free Expression in Game Development

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Protecting the Constitution vs. Protecting Children Free Expression in Game Development

Protecting children from sex 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 very difficult to restrict.

Family values groups use the catchphrase of “protecting children” to further political agendas including censorship of speech they oppose.

Government must prove the existence of some actual ‘harm’ resulting from the speech it wants to regulate, to justify video game laws.

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Video Games & Behavior Free Expression in Game Development

  • To date, a causal relationship between video game content and violent, aggressive behavior has not been established.

  • There is scant evidence that video games have any effect on real world behavior. (Eg: Drs. Anderson & Kronenberger claim some ‘correlation’ but no direct link.)

  • Much of the research is inherently biased to prove a false correlation.

  • But…now 100’s of studies claim that a relationship exists between video games and youth aggression.

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The Studies in Court Free Expression in Game Development

  • The Courts have consistently ruled against restrictions on video games because of the lack of scientific proof and consensus that a causal relationship exists.

  • Points to the need for more detailed studies regarding the relationship (if any) between video games and violent behavior.

  • Federal funding for this effort has been sought, but the bill failed.

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The First Amendment Free Expression in Game Development

  • Video games fall under the protection of the First Amendment.

  • Video games

    = Free Speech

    Content–based laws are invalid.

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The Strict Scrutiny Test Free Expression in Game Development

  • In order to regulate speech, the Government must meet the

    “Strict Scrutiny” Test:

    • Compelling state interest in preventing harm.

    • Use of least restrictive means.

    • Narrowly-tailored to accomplish goals.

    • No censorial intent.

  • Few content-based regulations pass the Strict Scrutiny Test.

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“Fool me once, shame on me. Fool me twice…” Free Expression in Game Development

  • The Courts have consistently ruled that video games are protected speech and restrictions are invalid.

    • California (February, 2009)

    • Oklahoma (September, 2007)

    • Louisiana (November, 2006)

    • Minnesota (July, 2006)

    • Michigan (April, 2006)

    • Illinois (December, 2005)

    • Washington (July, 2004)

    • St Louis (June, 2003)

    • Indianapolis (March, 2001)

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The Latest Victory: California Free Expression in Game Development

  • A law regulating violent video games and imposing other restrictions was passed and signed into law in 2005.

    • A preliminary injunction was issued, and two years later in August 2007, the N.D. of CA ruled the law unconstitutional.

  • The state appealed the ruling to the Ninth Circuit Court of Appeals.

    • cont…

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California Case - Facts Free Expression in Game Development

  • Statute prohibited the sale or rental of violent video games to minors.

  • Attempts to define ‘violent’ as deviant, morbid, or patently offensive with respect to minors.

  • Borrows concepts from ‘harmful materials’ laws dealing with pornography.

  • Forces publishers to label affected games with an “18” mark.

    • cont…

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The Ninth Circuit Ruling Free Expression in Game Development

  • In February 2009, a unanimous ruling upheld the lower court decision, declaring the law unconstitutional:

    • Law fails strict scrutiny analysis.

    • No showing of ‘compelling interest.’

    • Less restrictive alternatives exist, such as educational campaigns and web filters.

    • Labeling Requirement is compelled speech that forces publishers to give an opinion.

  • The ruling may derail pending ‘labeling’ bills at state and federal levels.

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What’s next? Free Expression in Game Development

  • Rep. Yee hopes to see the case on the Supreme Court docket.

  • "This is a clear signal that in California and across the country, the reckless pursuit of anti-video game legislation like this is an exercise in wasting taxpayer money, government time and state resources."

    -Michael Gallagher, president and CEO of the Entertainment Software Association

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Recent Legislative Trends Free Expression in Game Development

  • Throughout 2005-2007, a national trend developed with multiple states proposing or passing 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.

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2008: A Year in Review Free Expression in Game Development

  • 2008 was fairly static, with only one bill passed in New York with little effect.

  • Dwindling attempts are likely the result of so many failed efforts.

  • Furthermore, states have had to spend millions of dollars to pay ESA's legal bills.

  • State legislators less likely to fall for the ‘Thompson’song and dance.

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A Small Legislative Victory Free Expression in Game Development

  • In July 2008, New York passed a law that:

  • Requires that “commonly used” or ESRB ratings be displayed on the outside of the package; that new consoles sold in NY must have parental controls; an Advisory Council to study the relationship between media and youth violence, and the effectiveness of the ESRB rating system.

  • - Does not apply to games/ consoles purchased online.

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Pending NY Legislation Free Expression in Game Development

  • A second bill proposed in January 2009 before the New York Assembly (A 2837):

  • Seeks to block minors from any game that glamorizes the commission of a violent crime, suicide, sodomy, rape, incest, bestiality, or sado-masochism; requires warning labels; and requires retailers to keep games either in an area “inaccessible to the general public,” or “in a sealed and locked container.”

    • cont…

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Pending NY Legislation, continued… Free Expression in Game Development

  • A second, pending piece of legislation; AO1474/S 699, "Prohibits sale to minors of certain rated video games containing a rating that reflects content of various degrees of profanity, racist stereotypes or derogatory language and/or actions toward a specific group of persons."

  • The bill is sponsored by Assemblymen Wright and Greene and has been referred to the Consumer Affairs and Protection Committee.

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Is This a Sign of a New Approach to Legislation? Free Expression in Game Development

  • It seems as though this bill may be an example of a new attack, this time with a "politically correct" slant.

  • Is political correctness seeping its way into the regulation of social policies?

  • Could this be the Left's answer to the Right's so-called "family values" decency legislation?

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Faith Fighter Free Expression in Game Developmentand the new censorship battlefield

  • A new category of popular games might give the PC crowd some material to attack.

  • For example, Italian game developers, Molleindustria, are creating politically incorrect games in an attempt to further political discussion and debate.

  • One game; Faith Fighter, is described as: "The ultimate fighting game for these dark times. Choose your belief and kick the shit out of your enemies. Give vent to your intolerance! Religious hate has never been so much fun.“

  • How long until we see claims of religious discrimination, anti Jewish, anti-Muslim, and anti-Catholic content?

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Politically Incorrect Legislation? Free Expression in Game Development

  • Any regulation based on content like racism, sexism, or profanity is doomed to failure.

  • Obscenity and child pornography are the only relevant exceptions to the First Amendment’s protection of free expression.

  • The PC police may become the new enemy of game developers.

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House Bill 2513 in Illinois Free Expression in Game Development

  • This bill was proposed in January 2009:

    • Provides that the exhibition to or depiction to a minor of harmful materials as a Class A misdemeanor and a Class 4 felony for a second offense.

  • The bill’s focus on ‘harmful materials’ may save it from a constitutional challenge in the courts.

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Utah House Bill 353 Free Expression in Game Development

  • Would amend the state’s existing truth in advertising law to encompass retail sale of video games, or other materials with age-restricted content.

  • Was drafted with the help of our friend and former lawyer, Jack Thompson.

  • In the beginning of March 2009, the sponsor added a number of amendments that watered down the restrictions.

  • The Bill passed the House and is expected to pass its next hurdle, the state Senate.

  • Thompson: “This is a victory for parents everywhere!”

  • Utah: A. Downloads the most porn.

  • B. Happiest state in the country.

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Wisconsin Approves 5% Sales Tax Free Expression in Game Development

  • Gov. Jim Doyle (D) signed the bill into law, which will create a 5% sales tax on downloadable digital goods.

    • This will apply to downloadable games, movies, music, etc.

    • The levy will raise almost $11 million.

    • Not based on content of the media.

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Federal Legislation Free Expression in Game Development

  • HR 231 was introduced in January 2009 by Rep. Joe Baca (D-CA) and would require certain warning labels to be placed on video games that are given ratings higher than those rated T for teens.

  • Currently pending before the House Energy and Commerce Committee.

  • Validity questionable after Ninth Circuit Decision.

  • Label would state: “WARNING: Excessive exposure to violent video games and other violent media has been linked to aggressive behavior.”

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The Obama Administration Free Expression in Game Development

  • Three Obama cabinet nominees / members have past ties to video game legislation:

    • Hillary Clinton – While in the Senate, sponsored legislation.

    • Kansas Gov. Kathleen Sebelius – unsuccessful attempt to legislate video games. (Her son created a game called: “Don’t Drop the Soap”)

    • Commerce Sec. nominee Gary Locke – Signed the Washington law that was later ruled unconstitutional.

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Jack Free Expression in Game Development


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Jack Thompson: Disbarred Free Expression in Game Development

  • In September 2008, Jack Thompson's prestigious career came to a "shocking" conclusion when the Florida Supreme Court accepted a Florida judge's recommendation of permanent DISBARMENT.

    • ”Based on the record before it, the Court agrees that respondent is not amenable to rehabilitation. Further, the Court approves the referee’s recommendation that permanent disbarment is the appropriate sanction.”

  • Thompson filed a request with the U.S. District Court seeking an emergency stay, and has publicly commented that his disbarment is in "retaliation" for a civil suit he has filed against the FL Bar and Supreme Court, amongst others.

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Fun Facts from the Report… Free Expression in Game Development

  • Respondent made false statements of material fact to courts and repeatedly violated a court order;

  • Respondent communicated about the subject of legal representation directly with clients of opposing counsel;

  • Respondent falsely, recklessly, and publicly accused a judge as being amenable to the "fixing" of cases;

  • Respondent sent the court inappropriate and offensive sexual materials.

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A look back at Thompson’s accomplishments… Free Expression in Game Development

  • Recall that Thompson led the crusade against 2 Live Crew's lyrics from its 1989 album, As Nasty As They Wanna Be.

  • Thompson declared the game Doom to be a "murder simulator" and blamed it for the Columbine massacre.

  • Thompson filed a civil suit against Grand Theft Auto's developer Take Two Interactive after a player of the game unrelatedly killed 3 police officers.

    • He charged the developers of “mentally molesting minors for money.”

    • He lost his pro hac vice status, preventing him from continuing as counsel of record on the case.

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…and the list goes on… Free Expression in Game Development

  • Thompson has helped draft anti-video game legislation in a number of states.

    • Each and every law he promoted was struck down by the courts on constitutional grounds.

    • Many states were forced to pay attorneys fees to the trade associations when they prevailed.

  • Thompson took another shot at Take Two Interactive in the form of a lawsuit aimed at preventing the release of the game Bully. He argued the game violated Florida's public nuisance laws.

    • That case resulted in another loss for Thompson after an embarrassing court outburst in Miami.

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…and on… Free Expression in Game Development

  • 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.

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Hit the Road, Jack! Free Expression in Game Development

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Censorship Around the World Free Expression in Game Development

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Germany Free Expression in Game Development

  • 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 (federal council) 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.

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Although Germany has some of the strictest regulations of Western Europe, the gaming population still thrives.

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Australia Western Europe, the gaming population still thrives.

  • 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 M-rating for games; instead games are refused classification. Thus, games deemed unsuitable for players age 18 and older are banned altogether.

    • As of early March 2009, one AG, Michael Atkinson, is blocking the approval of an 18+ rating.

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Australia, continued… Western Europe, the gaming population still thrives.

  • World of Warcraft has been deemed illegal by Australian police. The police are fining people or stores who sell this game.

  • The game is "illegal" because it has not received a rating from the Interactive Entertainment Association of Australia. The IEAA is unable to give a rating because their rating system is limited to single-player games, and does not extend to the category of multi player games.

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China Western Europe, the gaming population still thrives.

  • 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 has changed its “fatigue laws,” so that only players 18 and younger are restricted to five hours of play time.

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Vietnam Western Europe, the gaming population still thrives.

  • Under current law, players are restricted to five hours of play. The law is modelled after the Chinese law. The government is considering changing the law to restrict players 18 years and younger.

  • Basis for Censorship in Constitution: “The State shall strictly ban all activities in the fields of culture and information that are detrimental to national interests, and destructive of the personality, morals, and the fine lifestyle of the Vietnamese.”

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India Western Europe, the gaming population still thrives.

  • India’s Parliament is considering a ban on violent video games.

  • The Censor Board of India supports a proposal that all such 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.

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Brazil Western Europe, the gaming population still thrives.

  • A judge in Brazil has banned the games Counter Strike and Everquest, ruling that these games incite violence and are harmful to consumers’ 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.”

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The United Kingdom Western Europe, the gaming population still thrives.

  • According to a study published by the British Board of Film Classification (BBFC) in February 2009: Almost three quarters of British parents are concerned about the content of video games, and want to see the industry independently regulated.

  • Additionally, 82% of parents would like to see the same rating system as that used for DVDs to avoid confusion.

  • Currently, all video games are exempt from classification except for those that contain gross violence, sexual activity, or material that could be useful in the commission of a crime - those must be granted an age certificate by the BBFC before release. cont.

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The UK, continued Western Europe, the gaming population still thrives.

  • Parliament is considering a ban on the Japanese game, RapeLay.

  • Game allowed virtual gang rape of women.

  • This game was also eliminated from Amazon Marketplace in the UK.

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Cyber Bullying Western Europe, the gaming population still thrives.

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The Case of Lori Drew Western Europe, the gaming population still thrives.

  • Lori Drew was charged with one count of conspiracy and three counts of unauthorized computer access for allegedly violating the MySpace terms-of-service by harrassing a 13 year old girl that ultimately ended with her suicide.

  • Drew was charged in Los Angeles with a federal anti-hacking law.

  • Violating the ToS with the intent of harming someone falls under the federal statute.

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Lori Drew, Convicted! Western Europe, the gaming population still thrives.

  • Drew was found guilty on the three charges of unauthorized use of a computer under the federal Computer Fraud and Abuse Act.

  • The jury only convicted her on the misdemeanors instead of the more serious felonies. Deadlock on the conspiracy charge.

  • She faces 3 years in prison and a $300,000 fine.

  • This is a startling precedent for anyone who violates a website’s terms of service.

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Cyber-Crime Western Europe, the gaming population still thrives.

  • Criminals are increasingly turning to the Internet for purposes of money laundering, fraud and other illegal activities.

  • In April 2008, Interpol declared that law enforcement must learn how to investigate crimes involving virtual money as a "matter of urgency."

  • Such misuse of game technology by the extreme minority give ammunition to the censors calling for ban on certain video game content.

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Regulation & Enforcement Western Europe, the gaming population still thrives.

  • Many games now require identification verification as part of their security measures.

  • Oversight institutions, such as the Second Life Exchange Commission, have been established, yet they have no real legal authority.

  • Will these voluntary agencies be restricted by constitutional principles? What about overseas users who are not entitled to U.S. constitutional rights?

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Conclusion Western Europe, the gaming population still thrives.

  • Increased realism in games spurs more censorship efforts, as gaming violence and sex become more real.

  • All censorship efforts in the U.S. have been unsuccessful, thus censors turning to other methods. Tax, warning labels and enhanced ‘harmful materials’ laws starting to appear.

  • The industry can never put its guard down, and must anticipate the next battle in both the courts, and the court of public opinion.

  • While the country may have had enough censorship of sex and violence from the family values groups, the PC Police pose an equal threat to Free Speech rights in video games.

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Questions? Western Europe, the gaming population still thrives.

Lawrence G. Walters, Esq.