Video Game Regulation

Katherine A. Fallow "Video Game Regulation and the First Amendment."
(from Jenner & Block, which works with the ALA on the Freedom to Read Foundation)
How solid are the legal arguments against video games? Very shaky indeed.

An argument as old as time itself...
1948 Winters vs. State of NY. Laws were created to battle true crime novels---a new media appealing to the young which may "create criminals." Mostly violence is still the concern.

Constitutional Framework
Are video games protected expression? Or like baseball; are they simply conduct (actual play) or something more? Art? More than Pong?
-Content. Elaborate creative content. Message, not conduct, is governmental concern. Content based regulation, under strict scrutiny.

Compelling State Interest
-Incitement to violence -- intended to entertain, not harm.
-Thought control -- not a legitimate state interest.
-Protecting psychological well-being of minors. No: gov't must prove alleged harm & solution.

Standards Have Not Been Met
-Methodological issues (harmful play)
-Studies never show that video games have harmed players.
-Attempts to show psych. harm unsuccessful.

Narrowly Tailored
-Does legislation sweep too much material in?
-Are there plausible, less restrictive alternatives?
-awareness-raising measures (ratings) -parental controls

Void for Vagueness
-Constitution requires notice of what speech is impermissible.
-What is "human" what is "harm??" Phrases emotional, vague.
-chilling effect law wants to avoid this. A LCD/dumbing down of games, harmful to creativity.

Violent Video Games Not Obscenity
-Limited to explicit secual depictions; rejected by numerous courts.
-Ban Odyssey? Saving Private Ryan?
-Every restriction has been struck down (6 in 2 yrs.) Also in states.

Fear
-Major motivator. Movies, comics, gaming is just the next to feel the heat.
-Grand Theft Auto is the most controversial. No evidence that "realistic" violence is more "harmful" than cartoon violence, though.

Helpful Resources for Those Concerned about Video Games
The Rating System Works---AO rating keeps a game back like PG13 or X for film.
Entertainment Software Ratings Board has tools to help us fight these concerns.
Entertainment Software Association is a helpful trade association as well.
-Have teens present why they play to concerned adults. This can be enlightening.
-Stickers, "please uninstall this game when done," cover libraries legally.