Brenda Brathwaite, chair of the IGDA's Sex in Games SIG and author of the soon-to-be-released book Sex in Video Games recently directed GP's attention to GameCensorship.com, the web presence of attorney Lawrence G. Walters.

Walters, who specializes in First Amendment issues, spoke recently at the Sex in Games Conference. While he's an ardent defender of free speech, he also displays an admirable pragmatism:

"I do not advocate government censorship in any of its devious forms. I do believe that it is important to take the issue of voluntary regulation seriously, and look closely at whether the industry is doing enough to educate parents as to the content of video games..."
( Read more... )

Yesterday, GamePolitics reported on Minnesota Attorney General Mike Hatch's plans to appeal a July federal court decision which ruled that the state's "fine the buyer" video game law was unconstitutional.

Hatch, of course, riled gamers earlier in June with language in a court filing which described some games as "worthless, disgusting speech" and "speech of very low societal value."

Hatch, a Democrat, also happens to be running for Governor and faces an uphill battle against incumbent Republican Tim Pawlenty, who signed the bill into law, thus triggering the legal battle with the video game industry.

In overturning the Minnesota law, Federal Judge James Rosenbaum issued a stinging rebuke to Hatch, writing, ""The First Amendment... was certainly established to keep the government from becoming the arbiter of what constitutes 'worthless' or 'disgusting' speech. The Court declines the State's invitation to enter into an evaluation of this kind."
( Read more... )

These days, Rockstar Games and parent company Take-Two Interactive seem to get more court time that the average NBA team.

Gamasutra is reporting that E.S.S. Entertainment, owners of the Play Pen, a Los Angeles "gentleman's club," filed suit against Rockstar in April 2005 for trademark infringement over the inclusion of a strip bar in Grand Theft Auto: San Andreas called the Pig Pen.

At issue was the Pig Pen's similar awning and logo (both pictured) which, like those of the Play Pen, feature the nude silhouette of a female dancer in the stem of the first letter "P". Additionally, the GTA Pig Pen's exterior displayed the words "Totally Nude," a phrase also used by the real-world Play Pen.

AE: Maybe things are different up in L.A. but down here in San Diego, all the strip clubs feature the words "Totally Nude" somewhere on their signs. I only know this because I, um... can see them from the freeway.

Displaying a clear grasp on the concept of parody, Judge Margaret Morrow said in her ruling, "Any visual work that seeks to offer an artistic commentary on a particular subject must use identifiable features of that subject so that the commentary will be understood and appreciated by the consumer."
( Read more... )

It seems that gamers weren't the only ones troubled by Minnesota Attorney General Mike Hatch's rather bizarre take on violent video games, which he referred to as "worthless, disgusting speech" and "speech of low societal value."

Federal District Court Judge James Rosenbaum today issued a permanent injunction against Minnesota's "fine the buyer" law. The unusual statute turned traditional video game legislation on end by levying $25 fines against underage buyers of M- and AO-rated games.

As reported by the Minneapolis-St. Paul Star-Tribune, Judge Rosenbaum ruled that Minnesota failed to prove any harm to kids caused by violent games. The Judge also ruled that the law violated the First Amendment, writing:

"The First Amendment . . . was certainly established to keep the government from becoming the arbiter of what constitutes 'worthless' or 'disgusting' speech. The Court declines the State's invitation to enter into an evaluation of this kind."
( Read more... )

The other shoe has dropped in Oklahoma.

As expected, the EMA (retailers) and ESA (publishers) jointly announced yesterday that the video game industry has filed suit in Oklahoma to challenge the state's new video game law on constitutional grounds.

"Legislators have sold parents a bill of goods for political expediency," said ESA President Doug Lowenstein in a press release. "They know the bill will be struck down, they know it's based on bad science, and they know it won't help parents do their jobs. What they won't tell voters: we just picked your pocket to the tune of a half million dollars, the amount the state will have to reimburse the ESA after the inevitable decision is made to strike down the law."
( Read more... )

This just in...

According to an ESA press release the video game industry (ESA & EMA) has filed suit to block implementation of Louisiana's new game violence law. The enabling legislation, HB1381, was signed last evening by Gov. Kathleen Babineaux Blanco (D) after unanimously passing both the Louisiana House and Senate. The law took effect immediately.

"We are confident this bill will be found unconstitutional," said ESA president Doug Lowenstein, "as have similar statutes in other states... Legislators know full well that this bill is destined to meet the same fate as other failed efforts to ban video game sales."

Addressing Louisiana's situation directly, Lowenstein added, "HB 1381 also directly undermines efforts legislators started after enactment of tax credit legislation less than year ago designed to lure video game development and production to Louisiana to generate needed high-paying technology jobs. Signing this bill into law would no doubt hurt the state's economy, essentially hanging up a 'Stay Out of Louisiana' sign on the state's borders for video game companies."

Lowenstein is referring to a tax credit bill passed last year, as reported on GamePolitics.
( Read more... )

NOTE: This story was originally broken by GamePolitics last night. Because of its importance and because we now have additional information, we are bumping it into today's coverage.

The website of Oklahoma Governor Brad Henry (D, seen at left) indicates that the Governor has signed into law HB3004, video game legislation proposed by Rep. Fred Morgan (R). Henry had until today to take action on the bill, and aides had indicated to GamePolitics that he was likely to approve the measure.

The Oklahoman has a brief mention on the new law. Gov. Henry's short, official press release can be seen here.

In his statement, the Governor said, "The violence in videogames has grown to epic proportions. Some video games glorify violence to a degree seldom seen in even the bloodiest movies. While parents have the ultimate responsibility for what their children do and see, this legislation is another tool to ensure that our young people are not saturated in violence. This gives parents the power to more closely regulate which games their children play."

The new statute, scheduled to take effect on November 1st, would include violent video games among items defined as "harmful to minors." (and therefore unlawful to sell or rent to minors). Oddly enough, the measure also includes unrelated language added by the Oklahoma Senate regarding signage around strip clubs and porn shops.

Rep. Fred Morgan, the bill's sponsor, is running for Congress and faces a July primary.
( Read more... )

Let's call this one the "Battle in the Bayou."

Assuming that Louisiana Gov. Kathleen Blanco signs Rep. Roy Burrell's video game bill into law, it will, of course, trigger a First Amendment challenge by the video game industry. Nothing new there. We've seen such court cases many times before, in Illinois, Michigan, California and elsewhere.

But this is shaping up as something far more than a court battle. This fight comes equipped with baggage. Lots of baggage.

Controversial Miami attorney and anti-game crusader Jack Thompson wrote Rep. Burrell's bill and testified on its behalf in the Louisiana legislature. Thompson's incessant e-mails are already crowing about yesterday's success in the Louisiana Senate, where the bill passed 35-0

Doug Lowenstein, of course, is the president of the ESA, and the video game industry's point man.

These two do not like each other. In fact, they really don't like each other.

For his part, Thompson says such outrageous and ugly things about Lowenstein that GP wonders why the ESA boss doesn't sue the gadfly attorney for defamation.

The ESA, on the other hand, has placed Thompson on their "ignore" list. They like to pretend he doesn't exist.

Thompson has been issuing frothy assertions about video game violence for years, but 2006 saw his first real foray into the legislative arena. He's been studying past video game rulings, trying to craft a bill that will withstand the inevitable First Amendment challenge. In addition to Louisiana's Burrell, Thompson has been working with Delaware Rep. Helene Keeley (D), although it's unclear whether Keeley's bill will advance.

For his part Lowenstein has guided the industry with a steady hand for more than a decade. The ESA has never lost a constitutional challenge on his watch. Although he's too much of a professional to ever say it, you can bet he's determined not to lose this one. Especially this one.

Stay tuned. This is one fight you won't want to miss.

Update: Jack Thompson commented that he has had some state-level exposure in the past. "I was the chief witness for the Washington State bill two years ago," he said in an e-mail.

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

The ESA, seeking to overturn video game legislation signed into law by Minnesota Gov. Tim Pawlenty (R) last week, has just announced that it will file suit in Minnesota Federal District Court. An ESA press release notes that "Similar laws have been struck down by six courts in five years, including the Eighth Circuit which governs Minnesota, costing taxpayers thousands of dollars in legal fees."

ESA president Doug Lowenstein was unsparing in his criticism of the Minnesota law, which takes the unusual approach of fining underage game buyers $25.

"The bill's tortured effort to end run the First Amendment by punishing kids directly fails under the Constitution because children have rights under the First Amendment, like all other citizens, said Lowenstein.

"The State is attempting to impose liability on children because they know that courts have consistently held that they cannot penalize retailers... If this law is implemented... it will create a huge amount of confusion for retailers, parents, and children."

Joining Lowenstein in attacking the Minnesota law was Bo Andersen, President of the Entertainment Merchants Association (EMA).

"Legislators in the state of Minnesota have enacted a video game restriction law that they apparently do not want enforced and understand cannot constitutionally be enforced," said Andersen.

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

This just in from ESA president Doug Lowenstein:

"The ESA is deeply disappointed by the actions of the Minnesota legislature and Governor Pawlenty. We believe that SF785 is unnecessary and will restrict the First Amendment rights of Minnesota's citizens. To enact 'feel good' bills knowing they're likely to be tossed by the courts is the very height of cynicism. The computer and video game industry intends to file suit in Minnesota federal district court shortly, asking that the state's new video game law be overturned."

"Six courts in five years, including the Eighth Circuit Court of Appeals which governs Minnesota, have struck down similar laws, ruling that they were unconstitutional. This has resulted in legal costs of nearly one million dollars to the taxpayers of the states in which these bills were passed, and countless wasted hours spent by government officials attempting to defend the laws."

"...We hope that sooner or later state legislators and candidates will stop trying to seek headlines by subverting the constitution and frittering away desperately needed taxpayer dollars and instead enter into a constructive partnership to educate parents about the tools available so they, not government, can raise their kids as they see fit and buy the games that are right for their unique families..."

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

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...

Dear Dr. Brothers: I'm a nerdy journalist, desperately searching for a brainy gal who loves good books, lazy Sundays and free speech. Know anyone like that? -GP

Dear GP: Call my cell. Now. Hugs and kisses, Joycie

In your dreams, GP.

But syndicated psychologist Dr. Joyce Brothers did take a surprisingly strong stance against video game censorship in this morning's column, which we came across in the Seattle Post-Intelligencer.

Advice-seeker J.B., who describes herself as "an old-fashioned mom," wrote in to Dr. Brothers, saying she was upset with violent T.V., toys and video games. "I think the government should step in and take more of a hand in this," she said.

Here is Joyce Brothers' reply:

"DEAR J.B.: I certainly agree that there's too much gratuitous violence in many video games that are deliberately marketed to youngsters, and I also believe there are consequences to this in that it does increase aggression in many youngsters..."

"Unfortunately, I'm sure neither you nor I want to live in a police state in which the government increases control over what we see, do and think. Censorship is a complex issue, because we first need to agree on and clearly define what's dangerous and offensive and what isn't. In the long run, children seem to be much more influenced by observing how their parents behave with each other, how they handle problems and crises, and what their ethics and beliefs are than by what they see or hear from others."

GP: Well said, Dr. B, well said.

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

Last week, GamePolitics broke a story detailing California Assembly Speaker pro Tem Leland Yee's (D) plans to introduce legislation shielding college newspapers from faculty censorship.

Yee's bill was especially interesting in light of his status as architect of California's video game law, which currently faces a First Amendment challenge from the video game industry. The case should be decided sometime in May.

Over at 1UP, Luke Smith did some follow-up with Yee, asking for clarification on what at first glance might appear to be irreconcilable positions on a pair First Amendment issues.

"The difference," Yee told 1UP, "is that we are looking at children. And that's the major distinction. And what we are limiting with children are these ultra-violent video games. These kind of horrendous acts of violence that we are limited children's access to. That is the major difference."

Nor did Yee express confidence in the video game industry's ability to self-regulate.

"The Federal Trade Commission's undercover study (said) that nearly 70% of kids would be able to purchase an M-rated video game. More recently, the Harvard study says that the ESRB doesn't give accurate information," Yee remarked. "The content descriptor doesn't give accurate information about the material found within these games. The coup de gras was the 'hot coffee' incident where hidden sexual material was found in an M-rating game. It was failure upon failure of the ESRB to regulate itself that I felt I needed to step in..."

IEMA boss Hal Halpin was quick to issue a rejoinder, sending his comments to both 1UP and GamePolitics.

"It is unfortunate that Mr. Yee remains woefully uninformed regarding the FTC's findings with regard to voluntary retail efforts at self-regulation," Halpin said. "He is either quoting an out-dated several year-old study, or has missed the press regarding their latest findings: that the nation's leading retailers, our members, are successfully carding for M-rated games 65% of the time - which puts the games industry on par with his 'Gold Standard,' the movie theatre owners, who card at 69% of the time. While we appreciate Mr. Yee's convictions and his right to a perspective, we would appreciate an effort to, at the very least, represent the statistics correctly to his constituents. Misleading them must surely not be in anyone's best interests."

Some gamers will find this story perplexing.

California Assembly Speaker pro Tem Leland Yee (D), the driving force behind his state's video game law, plans to introduce the nation's first bill designed to protect the free speech rights of college newspapers.

Yee will hold a press conference this morning at Skyline College in San Bruno to announce the bill. Joining Yee will be a representative of the California Newspaper Publishers Association, as well as a Skyline journalism professor and the editor of the school paper.

Motivating Yee's action is a recent federal court ruling that college administrators can require student editors to submit articles for prior review before publication. Yee's bill would prohibit censorship of student newspapers at any University of California, California State University, or community college.

GP: Although this newspaper thing sounds like a great idea, given that Speaker Yee's California video game law is currently facing a free speech challenge raised by the video game industry, some head-scratching is certainly understandable. We'll check with Yee's office for his thoughts on how the two issues reconcile with one another.

UPDATE: According to Yee staffer Adam Keigwin, "the violent video game bill was about protecting children and giving parents a tool to help raising healthy kids. The state had a compelling interest. (the college newspaper bill) is about protecting college students' right to free speech and free press. These students are not minors and not affected by the video game bill, but they are very deserving of 1st Amendment Rights. Without a free college press, who will serve as the watchdog and bring sunshine to actions of school administrators? As said many times, Speaker pro Tem Yee is very committed to protecting the 1st Amendment, but his top priority has always been about protecting children and assisting working families."

With so many Democrats working anti-game violence rhetoric into their "family values" platforms, you'd think that Republicans might squirm at the prospect of ceding the moral high ground. After all, some pundits claim that the current spate of video game legislation is nothing more than Democrats' attempt to steal the key married parent demographic away from Republicans.

A few weeks ago, however, the National Review Online, a popular conservative political magazine, featured an op-ed by Adam Thierer (left), a senior fellow at the Progress & Freedom Foundation (PFF) in Washington, D.C. and director of PFF's Center for Digital Media Freedom.

Thierer begins by tearing into politicians for using a few game titles such as 25 to Life and Grand Theft Auto "to indict an entire industry." He compares it to judging Hollywood based on viewing Natural Born Killers and Sin City.
( Read more... )

The dust-up over yesterday's controversial Harvard study on video game ratings continues as a noted First Amendment lawyer weighs in.

Washington, D.C.-based John Mitchell, who does legal work for video game industry clients, took keyboard in hand after reading the Harvard research report prepared by Associate Professor Kim Thompson and her team.

Writing in his blog, CopyOwner, Mitchell pulled no punches, beginning with his headline, which reads, "Harvard study jettisons original ideas, favors booing those who have them."

Mitchell went on to say, "Yes, 81% of the games rated 'M' (for 'mature,' as in 'hey folks, this is something you may not want your kids to play with before you've taken a closer look'), had content that was not mentioned in the rating description."

"(Harvard researchers) accomplished this feat by hiring one 'gamer' to play the games for an hour. No, they did not consider how kids - much less 'mature' audiences for which the games are intended - play the games. They faked it. And then they chastise those that took the trouble of rating the game and warned parents to be alert."

"It's a good thing they didn't decide to study what percentage of beers have more alcohol than is stated on the label - and hired a student to go bar-hopping to collect the research. Sure, at the end of the day (or after the hangover the next morning), they might be able to publish how many beers failed to state or under-stated the alcohol content, and warn parents that they should be on the lookout when their kids go drinking, because you can't be sure whether a beer stating 4.5% actually contained 4.6% alcohol."
( Read more... )

The battle is over in Michigan.

The video game industry registered another big court victory today as a federal judge ruled Michigan's video game law unconstitutional and reaffirmed that "video games are a form of creative expression that are constitutionally protected under the First Amendment. They contain original artwork, graphics, music, storylines, and characters similar to movies and television shows, both of which are considered protected free speech."

As reported by GamePolitics last November, Judge George Caram Steeh had previously issued a temporary injunction blocking the law from taking effect. At a March 22nd hearing, final arguments were presented. Judge Steeh's decision was provided to lawyers for both sides on Friday. Industry reaction was swift.

"Judge Steeh's ruling represents a sweeping rejection of the state's claims regarding the harmful effects of violent video games and we will move immediately for reimbursement of the substantial legal fees incurred in this court fight which the state could have, and should have, never triggered," said ESA president Douglas Lowenstein.

Judge Steeh likewise dismissed Michigan's claim that the interactive nature of video games somehow limited their First Amendment protections.

"The interactive, or functional aspect, in video games can be said to enhance the expressive elements even more than other media by drawing the player closer to the characters and becoming more involved in the plot of the game than by simply watching a movie or television show," Judge Steeh wrote. "It would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependent on each other in creating the virtual experience."

Nor was the jurist kind to research submitted to support the law.
( Read more... )

Blame it all on video games.

Such appears to be the position of Tennessee Republican State Sen. Tommy Kilby (left), who recently proposed legislation which would make it a crime to sell "extremely violent" games to anyone, of any age.

The good news is that Kilby's proposed legislation is clearly unconstitutional and has no chance of surviving a legal challenge. Here's why: the Bill of Rights, including the First Amendment, directly applies to the federal government and most rights set out therein apply to state and local governments as well through the due process clause of the 14th Amendment.

Before addressing the Tennessee bill, it is important to briefly review how the court handles free speech issues. Generally, whenever the government seeks to regulate speech, the court must balance the monumental importance of free speech against the interest or policies to be served by any limitation of speech. In a nutshell, the court asks what is more important in the matter at hand - speech? Or the government interest?
( Read more... )

Lacking news of any developments in yesterday's crucial Federal District Court hearing on Michigan's video game law, GamePolitics reached out to the office of Judge George Caram Steeh.

What did we learn? No ruling yet in the case. Judge Steeh has taken the matter under advisement. The representative we spoke with could not predict when we might get a ruling.

So now, we wait...

Keep one eye on your favorite game today, and one eye on Michigan.

This morning, lawyers for the video game industry will square off against the Michigan Attorney General in a federal court room in Detroit. At issue is the industry's lawsuit to stop Michigan's video game legislation which was signed into law by Gov. Jennifer Granholm (seen signing the bill at left) on September 12th.

The law, scheduled to go into effect on January 1st, was blocked by a preliminary injunction issued November 19th by Federal District Judge George Caram Steeh. GP readers can view the injunction ruling.

It's impossible to know whether the judge will decide the case today. He could issue his ruling from the bench or take the matter under advisement. Both sides will be listening carefully to Judge Steeh's comments, looking for an indication as to which way he is leaning on the matter.

Stay tuned to GamePolitics for updates.