I feel sorry for gamers in Utah. UPDATE: Bill has been Vetoed!

[Halifirien]

Thanks to the First Amendment, the government does not get to limit a consumer's access to video games or movies or music, even if that consumer is under the age of 18. This proposal in Utah attempts to do just that, albeit in a more novel way than previous attempts, and will likely be struck down for the same reasons.

 

[Skaw]

If retailers weren't scared shitless to sell AO rated games, the issue wouldn't be around. That rating might as well not even exist. For now, rather than making Murder Machine 12 actually for adults, developers have to squeeze in as much adult oriented subjects under the Mature rating.

 

[Tagrineth]

Thanks to the First Amendment, the government does not get to limit a consumer's access to video games or movies or music, even if that consumer is under the age of 18. This proposal in Utah attempts to do just that, albeit in a more novel way than previous attempts, and will likely be struck down for the same reasons.

The first amendment enables freedom of speech, in other words the freedom of the game designers to make their game and distribute it.

That isn't being stopped at all.

The first amendment, last I checked, doesn't say anything about the receiving end. Freedom of Speech doesn't say I can go and buy a pack of cigarettes.

 

[Ravic]

The fact that there are no AO rated games in stores has nothing to do with retailers. It's because there are no AO rated games, period. All of the console manufacturers (Sony, Nintendo, Microsoft) refuse to allow games rated AO to be developed for their respective systems.

As it's been stated, this is bad because it is trying to enforce an unenforceable standard. The ESRB ratings are completely voluntary, to both retailers and to the developers. (However, like AO rated games, non-rated games aren't allowed to be developed either.) Therefore, there is nothing keeping any retailer from disregarding the ratings altogether if they so choose. It's the same with MPAA ratings. Its up to the individual theater to choose who they allow to see what film in their establishment. Since it's a voluntary system, no government has any right to try to legally enforce it.

The reason it is a First Amendment issue is because this law is trying to control the flow of material protected by the First Amendment. Sure, it's not stopping the developers directly, but it is trying to say who can access the games. Effectively, it's a case of, "You can say what you want, but we'll determine who will hear you."

And folks, please, can you stop with the "Murder Machine 12" and the rest of the strawman titles. For a bunch of folks who decry Jack Thomson so much, you're starting to sound an awful lot like him.

 

[Tagrineth]

But it's not even controlling who's allowed to hear it, because it doesn't say said 10 year old may not own/view M-rated game content (which, incidentally, IS the case for pornographic content. just thought i'd throw that out there), just that they may not PURCHASE it.

 

[Bajaratt]

The fact that there are no AO rated games in stores has nothing to do with retailers. It's because there are no AO rated games, period.

Really, there's no AO games, period?

All of the console manufacturers (Sony, Nintendo, Microsoft) refuse to allow games rated AO to be developed for their respective systems.

No, the only reason why the companies won't allow AO games on their consoles is because they won't sell because retailers don't stock them. There's not nearly as much money to be made in an AO game as there is an E-M game, it's purely a business decision, not a moral one.

The reason it is a First Amendment issue is because this law is trying to control the flow of material protected by the First Amendment. Sure, it's not stopping the developers directly, but it is trying to say who can access the games. Effectively, it's a case of, "You can say what you want, but we'll determine who will hear you."

That's not a first amendment issue though. Based on that logic, the fact that the KKK isn't allowed to release the "happy racism funtime hour" on national TV is a violation of their first amendment rights.

You have the right to say whatever you want, but you do not have the right to force everyone around you to listen.

If your bullshit analysis of the first amendment was to be believed, then ALL forms of censorship are illegal/unconstitutional, and any store's policies restricting the sales of any games by voluntarily complying with the ESRB's ratings are illegal/unconstitutional. The first amendment only protects the developers, the artist, the person actually speaking from being able to speak, it does not allow them to distribute their message to anyone they feel like through any means they feel like.

 

[Tristam Green]

The first amendment enables freedom of speech, in other words the freedom of the game designers to make their game and distribute it.

That isn't being stopped at all.

The first amendment, last I checked, doesn't say anything about the receiving end. Freedom of Speech doesn't say I can go and buy a pack of cigarettes.

Not to split hairs, but the exact text of the First Amendment is

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

I think that it would fall more under "Freedom of the Press", rather than "Freedom of Speech".

Generally-speaking, it gets lumped together as FoS though.

 

[Bajaratt]

Freedom of the Press and Freedom of Speech are the same thing though, they just cover different methods of communication. It's like Slander and Libel, same act, just one is written the other the spoken. Neither one applies to this law though.

 

[Halifirien]

You're mistaken when you say this isn't a First Amendment issue, Baj. Game developers who fight these laws have successfully argued that forcing retailers to conform to an age-based restriction system would have a chilling effect on their freedom of speech. If you spook retailers into dreading the idea of having perfectly legal M-rated games on their shelves because a minor might buy a copy, they stop stocking them altogether and suddenly developers are forced to water down their storylines so Metal Gear Solid 4 is only going to work as a T-rated experience or that Gears of War 2 needs its blood, dismemberment and profanity removed for everyone and not just people who use that menu setting to disable it.

You can keep arguing "This law doesn't affect developers" until you're blue in the face, but it doesn't change the fact that the courts have consistently disagreed with your position and struck these laws down for that very reason.

The states have never been able to demonstrate that video games are harmful in a way that justifies their attempts to restrict sale to minors. These games are not illegal. The possibility of angry parents is not a compelling reason to keep kids from video games or music or movies or comics or books.

I've been working for a daily newspaper for nearly a decade. We don't run pictures of bullet-riddled corpses because we're "a family paper" and people don't want to see that when they're eating their breakfast. That's strictly an internal marketing decision. If the government swooped in and said "Hey, you can't run photos of bullet-riddled corpses," we'd fight them tooth and nail and haul them into court because they do not get to decide that.

The ESRB ratings are the same deal. It's a voluntary, industry-wide marketing tool to help parents. The government does not get to enforce it.

 

[Ravic]

Really, there's no AO games, period?

Wow, 24 whole games. Even if you only look at a single platform, it's an insignificant amount. Considering how many games have been released in the 13 years the ESRB has been rating games, on all platforms, you have effectively no AO games. Would you feel better if I edited in "pretty much?"

No, the only reason why the companies won't allow AO games on their consoles is because they won't sell because retailers don't stock them. There's not nearly as much money to be made in an AO game as there is an E-M game, it's purely a business decision, not a moral one.

From Wikipedia: "The AO rating is the subject of ongoing, heated controversy due to the extreme restrictions it places on game sales. For example, all three of the major video game console manufacturers (Nintendo, Sony and Microsoft) strictly prohibit the release and sale of AO-rated games on their consoles and that means major retailers do not allow AO-rated games on their shelves."

That's not a first amendment issue though. Based on that logic, the fact that the KKK isn't allowed to release the "happy racism funtime hour" on national TV is a violation of their first amendment rights.

That's because not a single network would let them use their airwaves to do it. The KKK is more than welcome to set up their own station and have their little variety show. This is an issue of "Want to use our toys, play by our rules." Claiming a 1st amendment violation doesn't apply in this instance. The network doesn't have to allow anything to air they don't want as it's their network. Sure, they have to follow FCC standards, but if the KKK can say what they want in the local town square, then they could say it on television, assuming they were given airtime.

You have the right to say whatever you want, but you do not have the right to force everyone around you to listen.

...which is completely irrelevant to anything that I actually wrote.

If your bullshit analysis of the first amendment was to be believed, then ALL forms of censorship are illegal/unconstitutional, and any store's policies restricting the sales of any games by voluntarily complying with the ESRB's ratings are illegal/unconstitutional.

Wrong. As a private business, any store is free to determine what they sell in their store and to whom. You know, free market and all that. What this is, is the state government stepping in and taking that decision out of the business' hands altogether.

The first amendment only protects the developers, the artist, the person actually speaking from being able to speak, it does not allow them to distribute their message to anyone they feel like through any means they feel like.

Again with the "Listen or else" angle. No one has said that in this thread. Anywhere. Regardless, speech implicitly requires both a speaker and a listener. If any government can step in and say who is and isn't allowed to be on the receiving end of the message, say, based off of something like a voluntary rating system (a system independent from said government), then they are effectively restricting the speech.

 

[Bajaratt]

You're mistaken when you say this isn't a First Amendment issue, Baj. Game developers who fight these laws have successfully argued that forcing retailers to conform to an age-based restriction system would have a chilling effect on their freedom of speech. If you spook retailers into dreading the idea of having perfectly legal M-rated games on their shelves because a minor might buy a copy, they stop stocking them altogether and suddenly developers are forced to water down their storylines so Metal Gear Solid 4 is only going to work as a T-rated experience or that Gears of War 2 needs its blood, dismemberment and profanity removed for everyone and not just people who use that menu setting to disable it.

There is no "chilling effect" on missing out sales from a market that the game isn't even intended to reach. The game is designed for adults, marketed towards adults, there is no damage to the developer's rights when a group that they're not even intending to have the game aren't allowed to buy it. The legalese bullshit that they're feeding is just that: bullshit. They're not going to stop making M-rated games just because kids can't play it, especially since the largest group of gamers is adults who are allowed to purchase it.

You can stop the slippery-slope doomsday crap, stopping kids from being able to buy GTA4 isn't going to ruin the game industry, it's not going to have much of an effect on the developers at all.

You can keep arguing "This law doesn't affect developers" until you're blue in the face, but it doesn't change the fact that the courts have consistently disagreed with your position and struck these laws down for that very reason.

Where? I don't remember hearing about any cases, ever that dealt with this issue. I don't even remember hearing about how video games are constitutionally protected speech; it's implied, since pretty much all other forms are, but I don't remember any specific case or provision for them.

I've been working for a daily newspaper for nearly a decade. We don't run pictures of bullet-riddled corpses because we're "a family paper" and people don't want to see that when they're eating their breakfast. That's strictly an internal marketing decision. If the government swooped in and said "Hey, you can't run photos of bullet-riddled corpses," we'd fight them tooth and nail and haul them into court because they do not get to decide that.

This is a great, although completely irrelevant, anecdote that actually relates to first amendment rights. It's also a complete smoke screen to try to link the restrictions on the purchase of a product and the creation of it.

Wow, 24 whole games. Even if you only look at a single platform, it's an insignificant amount. Considering how many games have been released in the 13 years the ESRB has been rating games, on all platforms, you have effectively no AO games. Would you feel better if I edited in "pretty much?"

Love the back tracking here. Gone from "there's never been an AO game" to "Ok, there are AO games, but that doesn't matter because there haven't been many."

From Wikipedia: "The AO rating is the subject of ongoing, heated controversy due to the extreme restrictions it places on game sales. For example, all three of the major video game console manufacturers (Nintendo, Sony and Microsoft) strictly prohibit the release and sale of AO-rated games on their consoles and that means major retailers do not allow AO-rated games on their shelves."

The major manufacturers are only prohibiting AO games on their consoles recently. There's several porn games for the PS1, PS2, and PSP; all of which would qualify for AO(one's even on the list). It's good PR to not allow AO games now, because video games are main stream; back when they were more niche, the developers had no problem with them.

The only reason why more AO games aren't created is because the retailers don't allow them to be on their shelves. The retailers don't care in the slightest what the manufacturer allows on their consoles, if they did, they wouldn't stock the truely shit games.

Again with the "Listen or else" angle. No one has said that in this thread. Anywhere. Regardless, speech implicitly requires both a speaker and a listener. If any government can step in and say who is and isn't allowed to be on the receiving end of the message, say, based off of something like a voluntary rating system (a system independent from said government), then they are effectively restricting the speech.

No, it doesn't. Freedom of Speech only means that you can say whatever the hell you want, it does not guarantee that someone has to listen to you.

 

[Ravic]

Love the back tracking here. Gone from "there's never been an AO game" to "Ok, there are AO games, but that doesn't matter because there haven't been many."

24 out of thousands is not "some." It is a fraction of a fraction of the games out on the market. Sorry for overlooking the less than 1% of all the games released over the last 13 years that have managed an AO rating.

And quite frankly, you're really just being anal to try to call me out on back tracking for missing 2 dozen games when it was obvious to anyone with a firm grasp on the English language that I wasn't aiming for absolute, strict adherence to the meaning of "none."

The major manufacturers are only prohibiting AO games on their consoles recently. There's several porn games for the PS1, PS2, and PSP; all of which would qualify for AO(one's even on the list). It's good PR to not allow AO games now, because video games are main stream; back when they were more niche, the developers had no problem with them.

If by "recently" you mean "since the inception of the AO rating," then yes, you are correct since as far as I'm aware, AO rated game have never been allowed for home consoles. Of the games on that list besides Manhunt 2, one (Thrill Kill) was never actually released and the other (San Andreas) had to be recalled and have the material that warranted the AO removed and reassigned the M rating before being sold again.

And I'd hazard a guess (see, not throwing out absolutes) that those porn games weren't released in North America and thus weren't rated by the ESRB, hence could not have an AO rating. Point. Set. Moot.

The only reason why more AO games aren't created is because the retailers don't allow them to be on their shelves. The retailers don't care in the slightest what the manufacturer allows on their consoles, if they did, they wouldn't stock the truely shit games.

You don't seem to understand that, if the console manufacturer doesn't permit you to release a game on their console, you can't release the game on their console. The retailers don't even factor into the equation until after the game has been given the go-ahead. Yes, many stores won't stock AO rated games, but the fact that the games can't even be developed in the first place makes the retailers stocking them or not a moot point.

No, it doesn't. Freedom of Speech only means that you can say whatever the hell you want, it does not guarantee that someone has to listen to you.

But it does mean that the government can't stand in the way and prevent those who do.





[size=-5]Please note, all mentions of numbers or percentages stated within the confines of the preceding post, whether depicted numerically or through text, are presented with a variance of no less than plus or minus 1% and no more than plus or minus 10%.[/size]

 

[Tristam Green]

Freedom of the Press and Freedom of Speech are the same thing though, they just cover different methods of communication.

Generally-speaking, it gets lumped together as FoS though.

It's like Slander and Libel, same act, just one is written the other the spoken. Neither one applies to this law though.

Except that it does, for all the reasons given in the past posts since I wrote out exactly what the amendment states directly off its paper.

Sure, nobody is telling them (the manufacturers) they can't sell the games. Likewise, nobody is telling the resellers that they can't stock or sell the games either.

And you're probably right - this little tiny law won't break the gaming industry. I mean, cmon; it's the video game industry. They can afford to lose a few snot-nosed kids buying games in Utah, right?

But it sets precedence, and it paves the way for additional legislation down the road that could potentially dictate what could be sold not only to children, but to anyone as well.

 

[Halifirien]

Where? I don't remember hearing about any cases, ever that dealt with this issue. I don't even remember hearing about how video games are constitutionally protected speech...

Obviously. Your ignorance on this topic has been plain from the start.

Entertainment Software Association v. Hatch

The record in this case includes scripts and story boards showing the storyline, character development, and dialogue of representative video games, as well as excerpts from four video games submitted by the County. If the first amendment is versatile enough to "shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll," Hurley, 515 U.S. at 569, we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence. Our review of the
record convinces us that these "violent" video games contain stories, imagery, "ageold themes of literature,” and messages, “even an ‘ideology,’ just as books and movies do." See American Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572, 577-78 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001). Indeed, we find it telling that the County seeks to restrict access to these video games precisely because their content purportedly affects the thought or behavior of those who play them. See Preamble to St. Louis County Ordinance No. 20,193 (Oct. 26, 2000).

We recognize that while children have in the past experienced age-old elemental violent themes by reading a fairy tale or an epic poem, or attending a Saturday matinee, the interactive play of a video game might present different difficulties. See American Amusement, 244 F.3d at 577-78. The County suggests in fact that with video games, the story lines are incidental and players may skip the expressive parts of the game and proceed straight to the player-controlled action. But the same could be said of action-packed movies like "The Matrix" or "Charlie's Angels"; any viewer with a videocassette or DVD player could simply skip to and isolate the action sequences. The fact that modern technology has increased viewer
control does not render movies unprotected by the first amendment, and equivalent player control likewise should not automatically disqualify modern video games that are "analytically indistinguishable from ... protected media such as motion pictures." See Wilson v. Midway Games, Inc., 198 F. Supp. 2d 167, 181 (D. Conn. 2002).

And then there's this bit from another decision about the chilling effect you insist isn't an issue, although the court disagreed.

Interactive Digital Software Association v. St. Louis County

Lowenstein stated that retailer decisions “will prevent the expression of ESA members from reaching a wide range of willing recipients.” Lowenstein Aff. ¶ 15. Because the definitions in the VVGL and the SEVGL are vague, Lowenstein states, retailers will make subjective individual decisions about what is regulated by the “fairly vague and ill defined terms in the statute.” Lowenstein Dep. at 105. For example, he states that to avoid criminal liability, certain retailers might, out of an abundance of caution, label certain T-rated games – which are, under the ESRB ratings, acceptable for anyone thirteen or older – with an “18” sticker. According to Lowenstein, labeling games that are not actually covered by the Act could in turn confuse consumers, because the “18” sticker conflicts with the ESRB ratings, and they may refuse to purchase the games due to the “scarlet letter quality” of the label rather than because of any real concerns about the content of the game. Id. at 126-28. Lowenstein contends that this requirement will not educate consumers, but will “primarily serve to stigmatize ESA members’ games.” Lowenstein Aff. ¶ 18.

Additionally, Lowenstein stated, because the statutes are extremely burdensome – requiring retailers to put in long hours to ensure compliance – they will have a direct impact on what retailers sell and how they sell it, according to Lowenstein. He stated that this, in turn, will affect members of the ESA, because they cannot publish products that retailers are unable or unwilling to sell. Lowenstein Dep. at 130-31; Lowenstein Aff. ¶¶ 18-19. Lowenstein conceded, however, that the ESA has no specific indication from Illinois retailers that they would refuse to sell or would be unable to sell video games that would require the “18” sticker. Lowenstein Dep. at 106-07, 130-31.

...


Ted Price, the president and chief executive officer of Insomniac Games, discussed the chilling effect of the VVGL and SEVGL on video game creators. He stated that “game creators not only strive to entertain their audiences but to communicate messages and ideas including a variety of political, social, and moral commentary.” Price Aff. ¶ 4. Price stated that the Illinois statutes would chill those messages, because the Act’s definition of violence – particularly the phrase “human-on-human violence” – is so vague that creators will be unable to determine what is regulate, forcing them to eliminate anything in their games that resembles violence. As way of example, Price stated that he “would feel very uncomfortable about including even cartoon violence,” such as the type included in Insomniac Games’ T-rated Ratchet and Clank series. Id. ¶¶ 7-10 (noting that Ratchet and Clank’s characters are humanoid, not human, but could be misinterpreted by some retailers as human).

From the same case:

Nowhere in Ginsberg (or any other case that we can find, for that matter) does the Supreme Court suggest that the government's role in helping parents to be the guardians of their children's well-being is an unbridled license to governments to regulate what minors read and view.

We do not mean to denigrate the government's role in supporting parents, or the right of parents to control their children's exposure to graphically violent materials. We merely hold that the government cannot silence protected speech by wrapping itself in the cloak of parental authority. To that end, we are guided by the Supreme Court's recognition that "peech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when the government seeks to control the flow of information to minors.” Erznoznik v. Jacksonville, 422 U.S. 205, 213-14 (1975). To accept the County's broadly-drawn interest as a compelling one would be to invite legislatures to undermine the first amendment rights of minors willy-nilly under the guise of promoting parental authority.

I wasn't pulling these arguments out of thin air, Baj.

 

[Morcheeba]

Obviously. Your ignorance on this topic has been plain from the start.

Entertainment Software Association v. Hatch



And then there's this bit from another decision about the chilling effect you insist isn't an issue, although the court disagreed.

Interactive Digital Software Association v. St. Louis County



From the same case:



I wasn't pulling these arguments out of thin air, Baj.

What were the verdicts?

 

[Tagrineth]

The world is progressively turning more and more retarded.

 

[Tristam Green]

Absolutely no argument with that sentiment.

 

[Halifirien]

What were the verdicts?

As I've been saying all along in this thread, the courts sided with the video game industry and struck down laws restricting sales to minors. The verdicts make pretty good reading -- and there are a few others I could link to if anyone wants them. Every point Bajaratt and others have made for these idiotic laws have been raised and shot down in court on First Amendment grounds.

 

[Xalioniaf]

24 out of thousands is not "some." It is a fraction of a fraction of the games out on the market. Sorry for overlooking the less than 1% of all the games released over the last 13 years that have managed an AO rating.

I do think games that were released before the ESRB came in should be considered. Even if they haven't been given an AO rating, the fact is that games that were geared towards adults were released means some developers (as low on the developer food chain as they were) had interest in releasing them. And even though Atari and Nintendo prohibited them by not giving them their little seals of approval, that didn't stop those developers from making cartridges from scratch and selling them under the table.
I do think that, because AO games are prohibited to be sold in retail stores, that it's an incentive for developers and publishers to not push AO games. Since most of them are sexual in nature (I think Manhunt 2 is the only exception, and that was toned down to get an M), they'd have to be sold in a pornographic shop. And it's not like you can go down to your neighborhood PornMart chain and pick it up there.

 

[Gerry]

For those who are wondering, there was a similar law that nobody really liked in California which was made by Gov. Terminator and it's just been ruled as Unconstitutional.

http://www.gamepolitics.com/2009/02...ppeal-california-video-game-law-supreme-court

While Gov. Arnold Schwarzenegger and Attorney General Jerry Brown ruminate over whether to file an appeal with the U.S. Supreme Court over a 9th Circuit ruling that California's 2005 video game law is unconstitutional, the editorial board of the Los Angeles Times offers some advice:

Don't.

From the L.A. Times editorial:

The [California] law raised a multitude of constitutional concerns. First... one of the definitions of "violent" was too broad. A game was violent if a player "virtually" harmed not only human beings but "characters with substantially human characteristics" (good news for centaurs and bipedal hedgehogs). But even when that language was severed from the rest of the law, the appeals court said the statute was unconstitutional...

Important as it is, the court's legal analysis doesn't identify an easy alternative for parents who are justifiably concerned about the effects of violent video games, films or comic books on their children. But the primary responsibility for protecting minors from potentially harmful influences lies with parents, as it did long before video games were a twinkle in a programmer's eye. Parents don't need a law to urge makers of video games to strengthen their current voluntary ratings systems. More important, they don't need permission from a legislator or judge to keep an eye on what their children are doing -- or playing.

The same fate of that law will apply to the Utah Bill that Jackass Thompson has proposed.