COLUMBIA — When the Supreme Court ruled earlier this week that video games are a form of expression protected by the First Amendment, gamers and game makers alike celebrated.
“It’s a little bit of validation,” Chase Koeneke, an MU senior and Columbia gamer, said. He talked about how video games have suffered a sort of cultural persecution, often being considered a “kid thing.”
The top 10 best-selling games of 2010 are listed below, along with their ESRB rating. ("M" stands for mature; "E" stands for everyone; and "E10+" is everyone 10-up.)
Adam Sessler, chief editor for G4 Media and a prominent voice in the gaming community, couldn’t agree more.
“(The ruling) is a validation of what people who enjoyed video games knew it always was,” Sessler said, alluding to his view that video games represent an art form.
“When you look at the credits for a video game, you see graphic artists and visual artists, music artists, story writers and all that sort of stuff," agreed Corey Motley, another Columbia gamer. "It’s the biggest culmination of all art forms in one place.”
But other gamers saw implications beyond the gaming industry.
“This was not just about video games,” said Katie Curry, an MU law student and avid gamer. The core of the decision was about whether violence should be added to the judicial definition of obscenity, which currently covers only specific kinds of sexual content, she said.
A change in the obscenity definition would have had effects far beyond the video game industry, Curry said.
“That broad of an expansion of the obscenity definition could quickly snowball into other media,” Sessler said, using books, movies and visual arts as examples.
Monday's 7-2 decision struck down a California law regulating the sale of violent video games to minors. The law imposed a $1,000 fine on the sale to minors of any game deemed excessively violent as defined by the law. The majority opinion, written by Justice Antonin Scalia, found the law to be both too broad in its definition of a violent video game and too narrow in that it regulated only video games and not movies or books as well.
In writing for the majority, Scalia noted the Court had no precedent of regulating the depiction of violence to minors, pointing out that books like “The Illiad” and “The Odyssey” are taught in schools at young ages and that “the Grimm Tales are grim indeed.”
Research done by Iowa State University's Craig Anderson on the effects of violent video games on children was submitted to the Court as part of California's case. It shows links between children playing violent games — defined as any game where harm is intentionally caused to another living being, human or otherwise— and increased aggressive behavior and thought processes. The research notes that comparative studies between the effects of video game violence, and movie or TV violence still need research and that studies about long-term effects are "badly needed."
In its ruling, however, the high court sided with other courts that have dismissed Anderson's research and noted that the state of California's attorneys admitted at the beginning of proceedings they could not show a causal link between violent video games and aggressive behavior. The Court acknowledged a correlation, but that is not enough to meet the standard needed to make exceptions to the First Amendment. Scalia also noted that Anderson had admitted in previous court cases that "the 'effect sizes' of children’s exposure to violent video games are 'about the same' as that produced by their exposure to violence on television."
Daniel Conkle, a professor at the Maurer School of Law at Indiana University in Bloomington, Ind., found one of the most interesting aspects of the decision the way the court was split. Scalia is usually considered very conservative, but he sided with the three justices considered more liberal, as well as Justice Anthony Kennedy, in the ruling.
Conkle also pointed out that the Court has heard several First Amendment cases recently and that “the recent trend of the court is leaning toward absolutism” in regard to how it interprets the protection the amendment provides.
The ruling could also have surprising implications for another case working its way through the Court, FCC v. Fox, which Conkle said dealt with a similar issue. In that case, the subject is TV instead of video games and pertains to nudity instead of violence. Nudity has an established precedent of being regulated in TV and movies.
Justice Stephen Breyer, one of the two justices who dissented, argued in his dissent that the ruling creates a disparity between what can be censored and what can't, using the example that video games could show a woman tortured in horribly violent ways but couldn’t show that same torture if the woman was topless.
Curry proposed a simple solution to the problem.
“Let’s just get rid of the obscenity doctrine altogether,” she said, laughing.
Currently, the video game industry self-regulates content distribution through the Electronic Software Rating Board and retailer enforcement, much like the regulation system used by the movie industry and the Motion Picture Association of America. The ratings board provides age ratings for video games much like movie ratings, along with brief content descriptions with each game for both retailers and consumers.
The ratings board encourages retailers to not sell games rated for older audiences to minors, and many retailers have policies refusing to sell M-rated games— analogous to R-rated movies — to minors without the consent of their parents or guardians, but there is no legal penalty for doing so.
Cyrus Marriner, a clerk at Slackers CDs and Games on Broadway, said he didn't see a lot of minors trying to purchase "mature" games.
"It happens occasionally but not really that often," he said. Marriner said most minors have a parent or guardian with them when they buy games.