In June of this year the Supreme Court issued a ruling in Brown v. Entertainment Merchants Association dealing with how much the law can restrict the sale of violent video games, specifically to minors. While I do have a legal background and while this conversation allows for an extremely lengthy discussion, I’m going to instead attempt a brief overview of the history of violence in video games and what the Brown decision means for the future of the industry. This isn’t going to be a doctoral thesis, I’m sure you can find that elsewhere, and I’m certain most don’t want to read that anyway. I know I don’t want to write it. So lets begin.
The controversy over violence in video games is nothing new, and debate has centered around this very issue for as long as video games have had any sort of violent aspect to them, regardless of the quality of the technology or graphics. The first real rumblings over violent games arose in 1976 over the arcade game Death Race. In the game, you drive a car and attempt to run over gremlins. If this doesn’t sound fun to you, just wait until you see the game in action:
Concerned that kids would play this game and attempt to kill people consisting of no more than seven pixels, parents and legislators alike began to look into whether violence in the games their kids play would have any effect on their children’s behavior. They set out to do some research, well armed with preconceived biases and conclusions just needing facts to support them. See, at that time, and to this day as well, the presumption among many was that video games were a medium solely, or mostly, consumed by children. In fact, this presumption persists to this day in spite of overwhelming statistics that put the average age of a gamer at 37 years old. Maybe many of these gamers were kids when they started, but as technology has improved and the gaming industry has exploded with capital, games are now aimed far more at adults than children. This is because it is well known that males, 18-35, have the most disposable income, i.e. the most buying power. It just makes good business sense to aim your products at the people most likely to buy them and kids are just not that demographic. But facts be damned because many still cling to the idea that games are aimed a a young audience, and the violence therein will destroy those young minds. Just look at the hysteria over the release of Manhunt 2 in 2007.
Not mentioned is the mediocre reception the game received, greatly hindering its sales in the US. Indeed, and probably because of, the over-the-top and gratuitous violence and gore in games like Manhunt, which focus more on shock than on things that matter, like actual gameplay, the game just didn’t sell that well. Thus less people played it, and as their logic would go, less people became mass muderers. The problem with those who think violence in video games is terrible is that they make an assumption, unconsciously, that those who play these games are violent weirdos in the first place, and thus won’t be placated until something more extreme is released, ad infinitum. Its the assumption that kids only want to kill, thus they buy the most sadistic game possible. Not only does this contradict their own stated premise that these games turn normal kids into violent people, but it completely disregards the facts that games are popular because they are good games, and gameplay is not judged on violence alone.
Don’t get me wrong, some of the best selling, and in my opinion, most fun games out there are extremely violent. But they stand alone on their gameplay. Call of Duty is fun because of the graphics, the dynamics, the community, and the competitive nature of the game. There are thousands of games out there where I can shoot someone, and some are better, some are worse, some sell more and some fall flat. Its not dependent upon the violence. Now, sure, violence is kind-of a must in a game like that. No one wants to play Call of Duty in paintball mode (looking at you, Goldeneye), but people don’t play Call of Duty because they are angry, bitter, rabidly violent maniacs. They play the game for the reasons mentioned above, and the violence simply adds to the realism and excitement. To then make the leap in logic to say that that very violence will in turn make people want to kill or emulate that behavior disregards the very reason those games are popular in the first place, and insults those who consume these very games by painting them as mindless and malleable.
In the early 90′s when games like Mortal Kombat and Doom were released, it began to really catch people’s attention, as these games had graphics that were far superior to any Death Race. Inspired by similar moves by the Motion Picture Association, the video game industry created the voluntary self-regulating authority called the Entertainment Software Rating Board, or the ESRB. Because most retailers, by agreement with the distributors, would not sell non-ESRB rated games, this rating agency became the de facto rating agency and served to restrict sales of violent games to minors. This move was done in part to stave off legislation that would regulate the gaming industry, out of fear of what public opinion and legislators far removed from the actual games themselves would attempt to enforce on an industry they didn’t quite understand.
And this was all fine and good for a while, but as time passed, technology improved exponentially. Graphics were approaching realistic levels, games were allowing more freedoms, and with it the backlash against violence in video games increased. People like ex-attorney Jack Thompson were consulted by various news outlets about games like Grand Theft Auto and Halo, more so after school shootings and other tragedies, as they attempted to tie in real world violence with its video game counterpart. Jack Thompson, the famously level-headed attorney, filed multitudes of lawsuits against various video game developers and distributors, claiming all manner of illegal things were being perpetrated by the video game industry. He was later disbarred for those actions, including filing frivolous lawsuits and engaging in slander and libel, not to mention a complaint sealed by the Florida bar where he supposedly depicted gay sex acts in his complaint and for which he was forced to promise not to file any more pornography (I’ll just let that sink in for a bit).
But Jack Thompson aside, many still continued to claim games like GTA would give points for killing prostitutes and other such crimes, exposing the true lack of understanding of video games past the arcade days of the 70s and early 80s. Though GTA didn’t even include a point system and there were never missions that rewarded such actions, GTA was villainized in the media for those very accusations. Its true that one could kill prostitutes in that game, but one could play GTA the entire way through without even once engaging in such behavior. The game was the beginning of the modern sandbox genre, allowing you to do what you pleased, and in some people’s eyes, this allowed too much freedom because it allowed you the freedom to engage in behaviors they supposed the game actively encouraged.
Thus in 2005 California introduced legislation that banned the sale of violent video games to minors and required labeling above and beyond what the ESRB had instituted. This law was challenged by the Entertainment Merchants Association, which represents the video game industry, on the grounds that it violated the right to free speech as found in the First Amendment. They would go on to win in district court on the grounds that the law indeed violated the First Amendment and that there was an insufficient showing that video games differed from other media. Furthermore, the district court would find that there was not an established causality between violent video games and violent behavior. The case would be appealed to the United States Supreme Court.
The case was Brown v. Entertainment Merchants Association and the decision was presented in July 2011. The case in its entirety can be found here. To surmise, because the decision was announced by Justice Scalia, not known for his brevity, the case was found in favor of the EMA and the California law was struck down. But what makes the case noteworthy is that for the first time the courts recognized that video games qualify for First Amendment protections. The court stated that
“Like the protected books, plays, and movies that preceded them, video games communicate ideas–and even social messages– through many familiary literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection.”
Though the court upheld the long standing rule that obscenity could still be banned from being distributed to minors, Scalia stated that video games constituted speech, and speech about violence does not constitute obscenity. The court further held that the evidence shown did not prove that violence in video games causes violence in children, and that shows like Looney Toons have as much effect on children as do games featuring guns.
This may be no big deal to some who are 18 or older and no longer have to worry about the ESRB or the California law. But it actually does have long-reaching consequences. Consider the rating system in Australia, which has the power to outright ban games from the country. Recently, they found the modern iteration of Mortal Kombat had excessive violence and lacked any redeeming quality, thus banning the game from the country. Not just for minors, but for everyone. The fact that our Supreme Court has found that video games constitute free speech means that we are assured that no such outright bans will take effect in the United States (though in fairness, games that fail to receive at least an M rating will in effect be banned in America, at least in as much as retailers will refuse to sell it, and thus developers will refuse to create it).
Personally, I believe that some games out there are not made for children. Tons of games include some serious language, violence and other things that just aren’t appropriate. But so do movies and books. Video games shouldn’t be treated any differently. Moral panics about violent video games serve to do nothing except produce free publicity for those game manufacturers and generate interest among potential consumers. Forbidden fruit is always more tempting to those told they can’t have the games, and their efforts are counterproductive. Moreover, their worries are unfounded, considering that most games today, especially the violent and blockbuster games, are not aimed at kids, but instead adults with disposable incomes and the capacity to purchase these games themselves. Not to mention that adults have the ability and experience to objectively evaluate games, and will mostly buy games that are reviewed well and actually have good gameplay. Kids lack that experience, plus are blessed with the ability to be more easily entertained, so why try hard to make good games for them when the industry knows they will buy Pixar tie-ins and other crap. The big money is spent on games adults will buy, and that is where the violent video game market is. And with all that said, I must say that my favorite moment from Black Ops involved this scene: