May It Please The Court

Much like my late Uncle David, I'm most likely never going to be a lawyer, though he at least finished law school before deciding he couldn't stand the law profession.  Because of my future non-status as a lawyer, I will never likely get the chance to argue a case before the U.S. Supreme Court.  The closest I may ever come is filing an amicus brief at some point, and even that's dubious.  That being said, I would like to weigh in on the matter of Schwarzenegger vs. Entertainment Merchants Assn. currently under review.

May it please the court...

Peter Ustinov once said that in a free society, one must put up with a great deal of nonsense.  As a gamer myself, I will not deny that when you get right down to the core of them, video games are nonsense.  They are expensive electronic fripperies, many of them poorly designed, many of them poorly executed, and many of them incapable of producing anything of inherent value beyond a minimal sense of enjoyment built up through  the few hours needed to progress from start to finish, a sense of enjoyment that fades as soon as the game is put away or erased off a hard drive.  As a reviewer, I see a lot of games whose aesthetic and artistic content ranges from non-existent to superlative, with the bulk of them falling into the range of mediocre to average.  The ratio of good games to bad ones is badly lopsided in favor of the bad ones it seems.  And while I believe that there are games out there who attempt to paper over a basically weak concept with excessive and possibly even gratuitous amounts of violence, I cannot see there being a compelling reason for the law in question to stand.

So far, the law in question has been struck down by the California Supreme Court and by the Ninth Circuit.  Nothing unusual about that.  Laws get struck down, appeals are made further up the ladder until one day, they arrive at the Supreme Court for the final ruling.  It's not even particularly notable that the California Supreme Court and the Ninth Circuit are both based in California.  What is notable is that laws similar to the law in question, across the entire country, have gone up to the appropriate federal circuit court judges and not a single one has survived.  For a nation as expansive and as diverse in ideas, creeds, and mentalities as ours, the fact that these laws keep getting struck down suggests that there is at least one constant in American jurisprudence insofar as video games are concerned.  That constant is that the State's interest in controlling the sales of these games does not outweigh the First Amendment's protection regarding the content of the games.  While a particular game might have objectionable amounts of violent content, the State cannot have a blanket ban on all games with violent content.  As much as it might irritate or outrage certain personages, the price of living in a free society means having to put up with the nonsense of violent video games.  A person may be outraged about the amount of violent content in a game, but since they live in a free society, they are blessedly under no obligation to purchase that game.  Just as a violent video game essentially ignores an individual's personal offense at its subject matter, the offended individual can ignore the violent video game by simply not buying it.  It is less a moral issue than a market issue.

"But think of the children!"  Ah, yes.  The cry for preserving the moral rectitude of the next generation of citizens.  A cry which has been uttered over the years with the advent of television, motion pictures, rock music, radio, comic books, rap music, and even the printing press.  Given this universal human propensity to view with alarm any media which potentially could expose children to images and concepts which an adult would find objectionable, it's not much of a stretch to picture an ancient Egyptian worrying about the potential harm of hieroglyphics on young and impressionable minds.  Fundamentally, it is difficult to disagree with the basic idea of controlling the exposure of young minds to content for which they are not yet mentally or emotionally capable of processing.  The disagreement stems not from the desired ends, but from the desired means.  The administration and education of moral and ethical propriety is properly the function of parents, not the State.  Mother and Father know best, not Big Brother.  If it were any other issue besides video games, the suggestion that the State somehow has not only a superior interest but a superior ability to properly raise children into morally and ethically functional adults would cause a full blown rebellion among the populace.  The law in question presumes that superior interest and ability while failing to provide any sort of proof to support the presumption.  And while society has produced and will always produce exceptional individuals who are morally and or ethically bankrupt, the failure to instill those exceptional individuals with the proper background generally rests with the parents, barring extreme cases of genuine physiological defect or subsequent physical injury.

A noted game designer named Sid Meier once described the general concept of video games as "a series of interesting choices."  I would expand upon that definition to read "a series of interesting choices within a specifically arranged set of circumstances."  A player makes choices within a game which their electronic alter ego performs.  However, there are choices which a player might like to make but which are essentially impossible within the circumstances of the game.  The freedom of choice within the confines of a video game are sometimes arbitrarily narrow, either because of mechanical limitations or the intent of the developers to explore a specific set of storylines and thematic issues, but they also have the potential to be quite expansive.  Because of this, some of the "visual aids" with which the Court has thus far seen and reacted to with distaste are inherently dishonest.  The fact that you can act like a complete and utter psychopath in Postal 2 does not mean that you are obligated to do so, and in fact it's possible to beat the game by reacting in a purely defensive fashion to immediate threats to your alter ego's safety.  As the development company, Running With Scissors, pointed out during their original marketing campaign, "It's only as violent as you are!"  The scandalous "Hot Coffee" content in Grand Theft Auto: San Andreas, which could only be accessed on the PC version of the game and even then requiring a bit of hacking to get at, is a minor element in a series which has routinely mocked the nihilism and self-destructive behavior of the romanticized "life of crime" which some people still believe to be a viable lifestyle.  As with Postal 2, the fact that you can act like a thug, a hoodlum, or a wiseguy in-between the chapters of the game's storyline doesn't mean that you are in any way obligated to do so.  And while developers cannot account for every possible permutation of choice within their games, they can keep the effects of those choices within the confines of the game, perhaps upsetting or disturbing a player's actual state of mind, perhaps enlightening it, perhaps generating nothing at all.  The final impact of the choices made within the confines of a game is that the game ends.  If a person has dreams with content influenced by the game and the choices they made within the game, it's little more than coincidence.  There is no reason to believe that violent video games are brainwashing American youth into psychopathic killing machines.

"But what about Columbine?!  They customized a video game to practice killing people!"  While I will not deny the Columbine shootings in particular, and school shootings in general, were tragic and deeply disturbing, I am not going to take the easy road and blame an inanimate object for the actions of psychologically disturbed individuals.  When a person modifies an automobile and gets into a wreck which kills somebody, do we blame the car manufacturer?  Do we blame the company who made the customized parts for the car?  No, we blame the driver, because the driver was in control of the vehicle at the time of the collision.  By the same token, blaming violent video games for a school shooting just because the perpetrators played the games or even modified the games to further their depraved fantasies and psychoses is equally spurious.  A more apt analogy would be the federal government charging Martin Scorcese as an accomplice before the fact in the attempted assassination of Ronald Reagan.  John Hinckley, Jr. had attempted the assassination in an effort to impress Jodie Foster, whom he'd become obsessed with having watched the movie Taxi Driver an inordinate number of times.  Yet Scorcese was never charged, nor was there even a hint of charging him, and rightly so.  Had any lawyer tried to proceed with such a prosecution, they'd have been laughed out of court.  Put simply, crazy people don't need violent video games to help them be crazy.

"What about that guy that killed himself over EverQuest?"  Same basic premise, slightly different circumstances.  The end result was the same.  The game did not tell him to kill himself, and efforts to hold the game company liable are laughable.  The man clearly needed, and clearly wasn't receiving, some very rigorous psychiatric assistance.  The game did not prevent him from getting the help he needed.

"What about the woman who shook her child to death because she was playing FarmVille?"  Having played FarmVille myself, I can tell you that it's probably one of the least violent video games ever made.  You plant flowers and vegetables, you pick them, you sell them, you plant more.  The fact that this woman shook her child to death while playing a non-violent video game seems to lend credence to the idea that it's not the games that are at fault for violent behavior.

The First Amendment covers not only the written word, but visual representations, audio recordings, and various other artistic media through which individuals or groups of individuals can express themselves with the promise that their work will not be subject to punitive sanctions from the State.  Video games, as a medium for artistic expression, are still very much in their infancy, despite having been around in one form or another for the past quarter century.  If one looks back, one would find a very strong historical parallel between video games and comic books.  Prior to 1954, comic books were not just for children.  Comic book stories were not simply about superheroes, but covered a broad range genres and topics.  You had detective stories right up there with the best film noir.  You had horror themed comics with gruesome monsters and hapless victims.  The potential for storylines and characterizations on par with great literature fused with cutting edge artwork by some of the most talented artists of the generation was almost palpable.  And then, one child psychologist by the name of Fredric Wertham went and published a book by the title Seduction of The Innocent, which was nothing more than a screed blaming comic books for every sort of social ill present at the time.  It whipped up sufficient furor that the U.S. Senate was contemplating regulation of the comic book industry.  Instead of regulation, the Comics Code was established.  A more benighted and patently offensive edifice of censorship likely has not been created in the entire history of the country.  A "code of conduct" that forbid not only depictions of violence and overt sexual content, but also forbid the depiction of concealed weapons (for reasons I can't fathom), any mention of supernatural creatures such as vampires or zombies (most likely aimed deliberately at publisher William Gaines, famous for Tales From The Crypt and MAD), any hint or suggestion that the police or courts couldn't be trusted, and enforced endings where the good guy always won and the criminal always punished.  Today, history looks at Seduction of The Innocent and the Comics Code, and the conclusion drawn invariably is that it crippled the comic book industry.  That a new and exciting form of artistic media was smothered and almost killed in the name of a moralistic fantasy more divorced from reality than any superhero or horror comic ever could be.  Surely, the esteemed justices of the Court know that sometimes the cops really are the bad guys, that convicted criminals really are innocent victims, and that the good guys can in fact lose.  I find it an overwhelming irony that the author of the law in question is a child psychologist.

A final point of consideration for the Court.  The law in question is supposed to affect retailers who knowingly sell what is to be determined (by mechanisms yet undefined and regulatory entities yet unformed) to be an excessively violent video game to minors.  Yet the law does not appear to make any provisions for or mention of companies who are using digital distribution methods for video games.  Will Sony or Microsoft be slapped with a fine each time a game that doesn't meet the law's standards gets sold through their respective online marketplaces?  Will people who purchase a game through Valve's Steam service or Stardock's Impulse service unwittingly open those companies up to fines if their title is played by a child within the household?  Or worse, by a neighbor's child?  The potential for spurious civil suits cropping up based off these scenarios makes my skin crawl.

I leave you honored jurists with a quote from Justice Louis Brandeis.  "Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent.  Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers.  The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."