Game Politics ([info]gamepolitics) wrote,
@ 2006-05-23 07:30:00
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Entry tags:democrats, first amendment, justin ross, legislation, maryland, obscenity, republicans, robert erlich, wade kach

Maryland Enacts Video Game Law, Industry Won't Fight It

After waging a string of successful First Amendment battles against video game legislation in St. Louis, Indianapolis, Washington state, Illinois and Michigan did you ever expect to see the video game industry decide to not fight a piece of game legislation?

Well, it just happened in Maryland, where HB707 was signed into law by Republican Governor Robert Ehrlich (seen at left) on May 2nd. The bill, co-sponsored by Delegates Wade Kach (R) and Justin Ross (D), had previously passed both the Maryland House and Senate by unanimous votes.

So why isn't the video game industry dragging Maryland into court?

As passed, the bill prohibits the display or exhibition of an obscene video game to a minor. Its definition of obscenity deals with depictions related to sexual activity. It's much the same as blocking a minor from buying a DVD containing an X-rated movie. There is no mention of violent game content in the bill, and no attempt to define violence as obscenity in the manner that pending legislation in Louisiana and Delaware seeks to do.

Since the video game industry - aside from the rogue Hot Coffee incident - does not market obscene material, nor is such material extended the same First Amendment protections as violent games, it opted not to oppose the Maryland law.

Nor is this the first time the industry has decided not to fight. In 2005, for example, Georgia enacted a law requiring retailers to display signs explaining video game ratings. Similar laws are in effect in California and Washington state.

Maryland's new law takes effect on October 1st. Its full text may be seen here.

Want to talk about it? You can discuss this story via the "comments" feature (click below), or in the new GamePolitics Forums...


(20 comments) - (Post a new comment)

Fighting battles worth fighting
[info]yukimurasanada
2006-05-23 12:15 pm UTC (link)
Can't say this is a suprise. Honestly, I wouldn't waste the money or time fighting this battle either. Now if someone were to come alone "Cough" jt "cough" and try to add violence to the law, then it's court time.

But seriously, this law is pretty much redudant. if a kid wants to see sex, games are not even needed. I can tell you first hand, the interenet and a keen grasp of bit torrents will be more then enough to do the job. Laws like this, for all intents and purposes, accomplish nothing.

So, just more time wasted on a bill that really serves no purpose.

Lets get some real news. I wanna hear whats going on out in cali. Judge whyte should have made a ruling by now.

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California Dreamin'
[info]gamepolitics
2006-05-23 02:15 pm UTC (link)
...no ruling as of last night. But this Friday marks the two-week point since final arguments, so maybe...

I should note that Judge Whyte seems to take his time. He was a good while after the preliminary injunction hearing before issuing the order.

(Reply to this) (Parent)
Re: Fighting battles worth fighting
[info]nitkin1
2006-05-24 03:30 am UTC (link)
*cough* *cough*myfreepaysite*cough* *cough*

i dont need games for pr0n, i have the intarweb. this coming from a 17year old :D

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[info]marbledog
2006-05-23 12:15 pm UTC (link)
I corresponded with Delegate Kach a while back. He told me, via email, that:
1) He does believe that violent games affect childhood development because of their interactivity. He admits that there is no research to substantiate this belief.
2) His sponsorship of the legislation was prompted by a constituent's complaint about Hot Coffee.
3) There was significant discussion about restricting violent game content, but it was abandoned due to constitutional concerns.

Generally, I found Delegate Kach to be an intelligent man who is truly trying to do the best for his constituency. He may be a little uninformed on game related issues, but I have to respect the man for taking the time to email me and directly answer all of my questions. He did this DURING the congressional session.

In contrast, out of all the state representatives in Louisiana (my home state), I've recieved one reply. It was a form letter from an aide to Rep. Burrell, not the representative in my district.

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oh yes, this realy works
[info]enmitywithin
2006-05-23 01:13 pm UTC (link)
fpr videogames maybe. it seems to be simply cementing what was already common taboo.

however I wonder, what about those UNRATED movies?

you know, the ones that almost have the entire movie showing nudity and the ones that minors can get 100% of the time?

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[info]psychochris86
2006-05-23 01:46 pm UTC (link)
Well, that law makes sense. They were right to not fight it. I'm still hoping the one in Louisiana gets ignored, though I doubt it will. Time to write some more congressmen!

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Not too bad
[info]mnementh2230
2006-05-23 02:22 pm UTC (link)
Prohibiting sex-games from falling into the hands of minors...

This wasn't covered by existing pornography laws? Still, I've no real problem with it in its current state.

I actually LIKE the laws that require signs explaining the video game rating system. Public education is the key here! If parents understood what the damn ratings meant (and is it really that difficult???) we'd have fewer kids playing GTA - admit it, that one just isn't for some audiences.

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Re: Not too bad
[info]gamepolitics
2006-05-23 02:58 pm UTC (link)
well, yes, I'm sure it was covered by existing laws regarding obscenity. Which is one reason why there's no point in fighting it.

(Reply to this) (Parent)(Thread)
Re: Not too bad
[info]mnementh2230
2006-05-23 10:38 pm UTC (link)
I just wish, since that was already covered by existing laws, that they wouldn't even bother passing the law. Waste of time and money, if you ask me. At least nobody is challenging it, as it'd waste even MORE time and accomplish nothing in the end.

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[info]crimson_mage
2006-05-23 02:29 pm UTC (link)
Whoa!! Even knowing the relevant background information, to me this is quite a shock.

When I saw the headline, my immediate thought was that Maryland was enacting the same kind of ratings-info statute as CA, GA, and WA. So it was a surprise to scroll down and read not just the law but the proposed definition!

While I understand the video game industry's difficult situation with a bill like this, I think it's very, very dangerous to their future ability to argue more crucial cases.

Yes, the industry generally doesn't market sexually explicit material to minors. Yes, it would make the industry look like a pack of unscrupulous smut-peddlers to enjoin.

But ... still, allowing the obscenity test to go unchallenged is baaaaad news! I mean, there it is, right in the bill - the definition of obscene is none other than the Miller test definition. With its current prevalence in game legislation clear to the ESA, the necessity of challenging its use should be evident.

While it's true that the bill doesn't take the ill-advised step of extending the definition to include violence, the Miller is still questionable. The law still neglects the third prong of the test (significant literary, artistic, political, or scientific value) and does not sit too well with the first (need sexually explicit content apply to prurient interest? not necessarily).

What's more, Illinois' Sexually Explicit Video Game Law was struck down along with its Violent Video Game Law, where the industry was free to challenge only one. While the SEVGL did place more of a burden on retailers than this Maryland law might (thanks to a handful of extra restrictions), the principle is much the same, and the SEVGL used a modified Miller definition.

As long as the industry keeps on batting 1000 whenever it challenges a game law, I'm confident in its ability to safeguard itself and the 1st Amendment. But ... well, part of me worries that this law might set a precedent that will be useful to the eventual judge who feels less than disposed to the protection of games and freedom.

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It is a problem of picking your battles.
[info]xlorep_darkhelm
2006-05-23 03:58 pm UTC (link)
And bickering with a state about what amounts to a redundant law that restates what already is against the law to be against the law, is not a judicious use of time and resources. So what if this law is established? It does nothing to harm the video game industry, it has absolutely no impact. The law, as written, simply reiterates (regurgitates?) the same thing that existing anti-pornography laws state. It sets up no precident, other than pointing out that the video game industry does support valid, legal litigations, rather than destructive, unconstitutional ones.

(Reply to this) (Parent)(Thread)
Re: It is a problem of picking your battles.
[info]crimson_mage
2006-05-23 04:41 pm UTC (link)
Yeah ... my worry is simply that in this case, the line between valid/legal and destructive/unconstitutional becomes blurry if not nearly nonexistent, since the SEVGL was just ever so slightly stronger than this and the industry had no qualms about arguing that down. This would be the first law of its kind to survive, I think.

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[info]psychochris86
2006-05-24 03:58 pm UTC (link)
Sorry. I just saw your icon. We must do battle.

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[info]kyz146
2006-05-23 02:41 pm UTC (link)
As to the definition of obsenity, it is word for word taken from Supreme Court authority. There was no point to fighting that.

However, my days of constitutional study on obsenity were some time ago. I question (b)(2)(i) in the bill, which says that a retailer may not display, distribute, etc., an item "the cover or content of which is principally made up of an obsence depiction or depiction of illicit sex." Note the "or." Illicit sex includes "fondling or other erotic touching of human genitals." Whereas I can't imagine this in the context of a video game, I can as to a music CD (i.e. think popular male music personality grabbing his crotch in a signature move - or a racy female popstar's moves that are meant to shock - yes perhaps it never made a music CD cover, but I hope you get my point).

So, my question is does this bill track the definition of illicit sex that has been previously approved by the Supreme Court? I assume so, given the industry's position not to sue, but I don't have time today to look it up.

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Obscene
[info]thabor
2006-05-23 03:43 pm UTC (link)

I would be nice to get that "obscenity" garbage struck from the books as well.. Probably not a good fight for the game industry to pick though. They don't have a good chance getting the supreme court to overturn its earlier mistake. Also, they would be demonized as wanting to peddle porn now by opponents of the industry if they did fight this one.

Clearly the obscenity ruling set a bad precedent given how many of these bills have tried to parallel the same logic with regards to violence. There is no real rational basis for restricting sex but not violence. The real root of the diffence is the religious biases in this country.

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Re: Obscene
[info]braindead1
2006-05-23 04:32 pm UTC (link)
Its how my aunt always said: "Australia was lucky. They got all the criminals, while we got stuck with the religious nut jobs"

I think its bizarre how people feel about sex. Its just SEX! Its normal, natural and there is nothing 'obscene ' about it.

(Reply to this) (Parent)
Re: Obscene
[info]crimson_mage
2006-05-23 05:54 pm UTC (link)
That's my other big objection here - it's not worth much legally but I don't like the law on principle. Are we really that uptight that if we're going to legislate restrictions on speech, it has to be sexual and not violent? Almost all sexually "obscene" speech - certainly most things in video games, with the exception of GTA's prostitutes - does not even depict criminal activity. It is a lot easier to suggest that violent images encourage physical aggression than it is to claim that pornographic images encourage sexual aggression. And as has been pointed out often enough, on television Americans will not even blink at ultra-violent content (one judge commenting in a ruling linked here on GP mentioned that the prime-time Davy Crockett show was full of shootings, maimings, brainings, and the like, and that was decades ago!) - but show a nipple and the puritanical spirit rears its censorious head.

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gonna play Thompson's advocate here...
[info]semperar
2006-05-24 09:01 am UTC (link)
the methods of picking their battles are telltale of a retail-minded industry. What I'm saying is, they'll clearly fight any law that directly threatens their potential sales figures, but when it leaves the realm of cash transaction, they step back and shrug it off.

I'm not saying this is wrong, really; they are an industry, a set of businesses intent on making money. However, when they (and I) stand on a pedestal of 'games as speech' to defend this medium from legislation, choosing only to defend their revenue really makes their position and intellectual credibility suffer.

(Reply to this) (Thread)
Re: gonna play Thompson's advocate here...
[info]gamepolitics
2006-05-24 09:50 am UTC (link)
You could make that argument. On the other hand, the adult film industry doesn't seem to be fighting the illegality of marketing porn to minors. And there really aren't any porn games - or even AO - games available in the North American retail channel.

But I love that devil's advocate stuff - keep it coming!

(Reply to this) (Parent)(Thread)
Re: gonna play Thompson's advocate here...
[info]semperar
2006-05-24 06:44 pm UTC (link)
I didn't say 'devil's advocate'...

yes, but the porn industry doesn't take up the claim that they are an emergent art form. They accept that they are entertainment, period.

I don't necessarily think the ESA/etc should fight this kind of law here, but I think they need to make up their minds really where their stance is; defense of themselves, or defense of this art.

(Reply to this) (Parent)

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