Video Games Protected By the First Amendment; Still Open Season on Zombies

So says the Supreme Court in a 7-2 ruling (about the video games being protected speech, not the zombies part, to be clear). You can see the entire ruling here (pdf link).

This isn’t a particularly surprising ruling, since the lower courts have generally held video games to be covered by the First Amendment (and specifically in this case both the Federal District Court and the Ninth Circuit Court held it to be so prior to the Supreme Court ruling), but it’s still nice all the same to have the issue settled. The down side, I suppose, is that parents now really will have to read the ratings on the game boxes and perhaps even read up on the particular games to help decide whether the game is appropriate for their children, rather than rely on the government to do it for them, but then, isn’t that what they’re supposed to be doing anyway. Welcome to responsible parenting, folks; it’s surprisingly not that difficult if you make a habit of it.

In case anyone’s wondering, why yes, I do monitor my own child’s video game playing. I’m okay with her playing, for example, the Left 4 Dead series of games (and she’s gotten quite adept at dispatching witches with a single auto-shotgun blast, something for which I am appropriately jealous), but I’m pretty sure I’m going to keep Duke Nukem Forever out of her hands. I do not imagine years from now she will do anything but thank me for that particular bit of parenting.

56 thoughts on “Video Games Protected By the First Amendment; Still Open Season on Zombies

  1. Mr. Scalzi, I just RT’d this post (@courtcan). It’s lovely to read someone pointing out that parents are supposed to be, oh, I dunno — parenting. Especially concerning video games (or music, TV, books, movies, insert medium here). If America were Communist, then maybe — *maybe* — it would be the government’s responsibility to raise our children. But huh, looky here, we ain’t Communists. Guess it’s time to “man” up, as it were. Darn that First Ammendment. ; )

    Anyway…thank you.

  2. I was glad to see this as well, although also not surprised. What does surprise me a bit are all the comments I’ve been reading that seem to think this means parents aren’t allowed to regulate their kids’ video game use (or blame this on the Court’s “pro-corporate” bias, which is a whole other can of worms). I can understand people being confused about how the video game and film ratings systems work – the idea that the MPAA ratings are law seems to be a pretty widespread misconception. It surprises me, however, that people jump from “states can’t make laws banning the sale of violent video games to kids” to “parents can’t forbid their kids from buying violent video games.” It just doesn’t logically follow. Parent your own kids, don’t try and force other parents to do it the same way by getting the law involved.

  3. In many ways I think the current generation of youngsters is far more adept at differentiating between video game violence and true violence than my own generation. (Got a 2600 round about 4th Grade.) I’ve been playing the various incarnations of Halo with my stepsons since the youngest was about 13. They are rated M, but it is a far different experience than the GTA IV Rated M. The oldest is out of the house and the youngest is now 17. He’s coming into his own, gets good grades, has good friends, and is doing pretty well. To him, and most of his friends, video games are just another form of entertainment. Nothing more, nothing less. It us us older folks, who don’t undersand it, who try and read into it more than what’s there.

  4. You can dispatch witches with a single auto-shotgun blast? Not that lighting them on fire and running toward your buddy who has her centered in the hunting rifle’s cross-hairs isn’t fun, but…. Seems like there should be an Achievement for that.

  5. Damn, I was hoping for a judicial statement on the zombies too. I mean as it stands you can technically shoot the ones who are actually in the process of attacking you (falls under reasonable force for self-defence), but if you go pre-emptive, even if it is just to clear a safe path, you’ve committed the offence of Desecration of a Corpse. Also given zombies can move under their own steam, and express hunger means that they probably are still entitled to human rights, so if you do shoot some to clear a path, then you could be done for manslaughter as well as desecration. We need a court to take a stand and clarify the law before the apocalypse comes. I don’t want to have to save a lawyer from the hordes so he can advise me as we go. When are the courts going to tackle the issues that really matter to us!!

  6. In response to #4, the only argument I’ve seen that made even a bit of sense was “parents can’t follow kids around 24/7; they could play these games a friend’s house — and kids have been getting stuff their parents didn’t want them to have since the beginning of time.” Which does have the benefit of being logical; I know I hid some stuff from my parents. But I don’t think that means handing responsibility over to the government. If my kid wants to play the PS3 in my house, then I know what he’s playing on it. If he’s playing the PS3 at a friend’s house, I expect that parent to know what they’re playing on it. And if that parent doesn’t know, then I’ll have a chat with that parent about my family’s values. I’m pretty sure that’s in the job description.

  7. Zombies? Witches? Open season? And here I was thinking that trying to survive S.T.A.L.K.E.R.: Shadow of Chernobyl was bad enough. Where did I drop that FN F2000?

  8. In addition to all the issues of tastefulness/appropriateness of the game, keep Duke Nukem Forever out of her hands just because it’s shite. My brother bought it, against all protests of mine for him to save his money, and he regrets it now like I regret my paying full price admission to see Max Payne in the theaters.

  9. Scalia said something to the effect of, “Obscenity is only sex, not violence.”

    That position … troubles me, at least a bit.

  10. @13
    The legal team for zombie huntins has filed to have zombies declared non compos mentis which will therefore–and forthwith–declare null and void any petitions filed by zombies. (more legalty blah de blah). ;-)

  11. I agree that the court made the right decision here. Teens don’t need government nannying; especially not from a government that so often seems to be censoring in the direction of injustice (see: “can’t say gay” fiasco, among others).

    On top of that, California’s entire argument seemed to be “the first amendment doesn’t apply to minors.” I’m rather glad that the Supreme Court saw fit to disabuse them of that notion.

  12. I agree that they made the right call on this one. While there are many games I don’t want my kids to play until they get older, I think that there are already enough mechanisms in place for me to monitor what my kids play. Not only do the ratings tend to be fairly accurate, there are numerous sites that have game play footage. As for what they play at other kid’s houses, I know the other parents and we talk about these kinds of things.

  13. I need to actually sit down and read the opinion, but this did strike me as kind of a no-brainer (har).

    On the flip side, now that we have firmly established that it is parents’ job to decide what games their minor children can or can’t play, the gaming community at large needs to STFU with its own brand of “nannying” – whining about ‘unfair’ ratings, or thinking it’s A-OK for a gaming company to sneak [undisclosed content that would affect ratings] into a game because, hey, if the parents are letting their kids play a game with [other content that is on the ratings] what’s the problem and parents are such a drag, man.

  14. I’m sure Athena could get around her old man (ha!) if ever she wanted to play Duke. OTOH, I’m equally sure she has excellent taste, and would never want to bargepole that holocaust!

  15. Good grief, ever since I read this, I want to plug the PS3 in and play a little Modern Warfare.

  16. It’s amazing this even reached the supreme court. We have a constitution for a reason: Freedom of speech. It’s a shame this has to be questioned every time there’s a new media.

  17. I am glad the courts have, in effect, told Jack Thompson and company to have a nice tall glass of STFU. I bet this isn’t the end of this topic though. Afterall, the children still exist and someone is going to be tempted to ban something on their behalf still. Comic books just shook off the “comic book code”, after something like 50 years of pseudo-regulation.
    I predict holography will pose unprecedented risks for children. They will become violent and depraved in the grip of demon 3D! Never before had children been exposed to such realistic graphics. This isnt innocent video games, comic books, movies, or television, that we all grew up with. This is new and DANGEROUS. Thank god your elected officials will sweep in to make sure little Billy and Susie are not corrupted by 3D!

    Oh, repeating history, why are you so fun?!

  18. Well, if there isn’t a website that summarizes and reviews the video games for parents, there probably soon will be. I don’t play, so I don’t know. But I can’t imagine that someone hasn’t taken that initiative.

    Just as in all things, children are not entirely controllable, but attempts to create limits are always good.

  19. Allow me to join you in your jealousy of Athena’s witch-dispatching capabilities. I usually end up bleeding on the ground, waiting for a kindly teammate to help me back up after the witch has handed me my bum. And if I may ask, which installment of the series do you prefer? And do you have a favorite character? I lean towards Francis, myself.

  20. I agree that they made a good call on this one. Once upon a time, when we all rode dinosaurs to work and lived in caves, there was this idea that, as parents, we were responsible for monitoring and mentoring our children….I also wonder when that became the government’s responsibility in the eyes of so many.

    I’m more disturbed by the abdication of parental responsibility than by the fact that Undead Americans are seeking equal treatment under the law.

  21. John@24:
    How long before we can read that phrase and not think of button shoes and handlebar mustaches? Or maybe that’s just me?

  22. I agree on the surface with the ruling. However Justice Thomas made a good point with the age issue. Kids don’t have full blown adult rights. The law never said kids couldn’t play the games, it just said they couldn’t buy them. Parents could still legally buy the games for their children. In my mind this ruling would also mean kids could not be barred from R-rated movies.

  23. I’m not a huge gamer, although I’m 25 and my brother and I still have Xbox 360’s and PS3’s and play every few weeks. One of my earliest (and happiest) memory was Christmas when I turned three years old and we got Zelda: A Link to the Past and my younger brother and I sat and watched my dad play in awe.

  24. So who were the 2 that don’t like the first amendment? And why are they there? To uphold the constitution?

  25. Paul, there were actually four who seem to not get that the First Amendment applies here. Breyer and Thomas dissented outright, but Alito and Roberts, while siding with the majority, essentially said that the problem was that California went too far, not that blocking sales was inherently wrong.

  26. In the United States at least, the MPAA rating system is voluntary and not a part of the legal system. The game industry has adopted a similar rating system and most game stores abide by it. There’s a prompt in the Target checkout system that forces the cashier to ask for an ID when a customer is buying a mature game no matter how old you look. GameStop were very public about announcing clerks (and their managers) who sold mature games to minors would be fired without appeal.

  27. just what do you have against Witches?
    seriously though. I have a kid who is a little prig. He monitors himself and his brother much more closely than I ever would. He refuses to read the Graveyard book because” ghosts are dead and dead people are inappropriate for children.” I had to put my foot down when he tried to keep his brother from reading it.

  28. There is a website targeted at informing parents about new video games, it’s called “What they play”.

    Also, good call on keeping DNF out of the house. I am just old enough at this point to remember thinking Duke 3D was really cool when I was 15. This new game… I dunno man, there’s something wrong with it.

  29. I admit that not being American makes it hard for me to understand all this kerfuffle, but why would anyone think it’s appropriate for children to be able to buy games intended for adults? It’s one thing for a parent to make the decision that their child is mature enough to handle a particular game and buy it for them, it’s quite another for a kid to walk into a store and buy any game they want for themselves. I don’t see what that has to do with free speech in the least. Does America allow children to buy violent or pornographic movies for themselves? I should hope not, but I fail to see the difference between games and dvds when it comes to the matter of age-appropriate ratings.

    Aside from anything else, I’m very unclear about whose free speech is being impeded by this (now defunct) law. The games industry? Aren’t they always claiming these sorts of games aren’t aimed at or marketed toward children anyway? If they are against any laws preventing the SALE (not playing) of violent games to children, then they’re nothing but liars.

  30. Left 4 Dead is quality family time for me. My son and his wife live halfway across the country now (and at the moment my son is in Afghanistan), so we find that shooting and scavenging our way through the zombie apocalypse makes for a great virtual family outing.

    For that matter, I got my son into computer gaming at a young age; I made sure he had his own rig by age ten and filled it with strategy games and to this day we still play Total Annihilation.

  31. I would just say – don’t be over-protective. And if you hide stuff too much then it’s getting very interesting for kids – and kids gains status in their lower teens by getting their hand on stuff marked for older ages. 12 year olds gains status from having a game rated for 18 year olds and so on.

    If you change some parts to a recommendation then you end up lowering the interest in that stuff.

  32. whenever we are out and about and my wife says ‘thats a nice looking house’, I respond with something to the effect of ‘doesnt look very defendable during the zombie apocalypse’.

    which I admit is true for most houses.
    but she never likes it when I say it.

    is its hot out, I might say ‘velociraptors’ instead. also true for most houses.

    I swear, zombies and velociraptors probably take one look at us in our thin plywood houses and think ‘mmmmm, bento box’.

    if they could think…

  33. this is the information i have searched the lot i found hear i have a project i used to take information from the internet and i used to think i can make my own wave ,this is the first step to saving our children from the games as they lost there mental thanks for the information.

    http://www.onlinegamesfree.org/

  34. I entirely agree that there should be responsible parenting. But as a chide against the overturned law, your comment on that point seems a little misplaced. Nothing in the law would have prevented an irresponsible parent from buying their child an inappropriate videogame, or permitting the child to buy it. So the law wasn’t trying to abdicate parental responsibility. What it said was that the games couldn’t be sold to children without parental consent. That raises the point that parents can’t police their children 24/7, and if they try – rummaging through their children’s belongings when the kids aren’t home, or demanding body searches – that’s even more intrusive to the children’s privacy than this law was. (I don’t buy the argument that this demonstrates a totally dysfunctional family. All children keep secrets from their parents, and if the available secrets include violent videogames, then they’ll sometimes be there.)

    Where I agree with the court is that the law was a totally, utterly inappropriate way of enforcing this. As someone pointed out above, MPAA ratings are voluntary, but as far as I know all theatres enforce them. Stores that sell videogames apparently enforce similar ratings. Online sales make enforcement more difficult, but it helps. Responsible parenting is a great thing, but the parents have to be given the tools to do it.

  35. Steam is a good option for parents. My boyfriend and I added my kids as friends and we can watch what they play and how long they play it without directly leaning over their shoulders. Of course, they can see what we play, but they know grownups have different rules than they do.

  36. Simply put, this just reinforces that Video Games are protected speech in the same way that books, comics, movies and television are. Most video game legislation is designed to hold games to a higher standard with an implicit assumption that it is a children’s format…blatantly disregarding that the average gamers is aged in his 30s. It also shows off the prejudice and biases of those who propose it, in that violent content is rated on a different scale entirely from sexual content (of which, generally, there is precious little).

    As a parent, I monitor what games my kids play. My son can play a ‘T’ rated Call of Duty, but not a ‘M’ one. I can effectively choose what games are appropriate content for him and which are appropriate for ME. Just like I do with books, TV and music already.

  37. Ruling is fascinating. It should terrify anyone concerned with freedom and rights.

    The basis of the decision is that traditionally Americans have not restricted depictions of violence, while there is a strong tradition for suppressing depictions of sex. Therefore, depictions of violence are protected by the first amendment but depictions of sex are not. Neither the text of the amendment nor legislation is relevant. No one ever has to argue that depictions of violence are harmless to plastic, developing minds; no ever has to justify the claim of existential danger posed by a flash of boob during a half-time show. Instead, the judges’ view of American historical tradition is the iron law of the land.

    Regardless of the result, I don’t think this is a ruling to applaud.

  38. chris @44: I don’t mean to let you down, but in fact the judges’ view on obscenity is correct. That is, they are right that American law has a boatload of jurisprudence treating “obscene” material as not wholly protected by the First Amendment. They didn’t invent new law here, just declined to get rid of it. Which makes sense, because that really wasn’t the issue in front of the court.

  39. @Laz

    In the United States, there are no laws keeping children from buying violent video games or watching violent movies. The game and film industry have all willingly partnered up to create rating systems from their respective markets. The film industry follows the now standard, Motion Picture Rating system and the game market follows the ESRB. Game developers, publishers, and merchants all do a great job at following the ESRB and 87% of parents agree that it is a good system.

    California, however, wanted to push a bill banning the selling of violent games to minors and would fine businesses for doing it. The courts have deemed this unconstitutional because it violates free speech. The government has no right to ban ideas, images, books, video games, and movies so long as they they don’t conflict with other people’s rights because they are all a form of speech. There is no laws preventing the sale of violent video games to minors and creating a law to do such violates freedom of expression.

    The government has NO RIGHT telling me what me or my kids can play, say, or do so long as they don’t hurt anybody else. Violent videos do not increase violent tendencies and there has been no evidence to support these claims.

  40. Laz@35: It’s not just about the First Amendment rights of the games industry, but of minors themselves. On page 38 of the opinion, the court concludes that the law “abridges the First Amendment rights of young people whose parents (and aunts and uncles) think violent video games are a harmless pastime.”

    Also, just because something is inappropriate doesn’t mean it’s devoid of First Amendment protection. I and most other Americans find it extremely inappropriate to protest a fallen Marine’s funeral, but doing so is nevertheless protected by the First Amendment.

    In addition, I think it’s quite unfair to call the games industry “liars” for agreeing that stores shouldn’t sell kids these games while opposing laws that would make such sales illegal. There are quite a few things that I don’t think people should do that I still wouldn’t want to be illegal. For example, I don’t think people should burn flags, I have no intention of ever burning a flag, and yet I strongly oppose laws against flag desecration. Does that make me a liar in your eyes?

  41. Mythago,

    I never suggested that the ruling was in error in light of previous rulings, or that it was in any other way judicially inappropriate. My point is that it should not be applauded as a clean victory for freedom from oppressive government intervention. As you point out, the issue of speech about sex was not before the court, yet it was mentioned repeatedly in the ruling. They wanted to make it clear that the nanny state is not dead, but the nanny only cares about sex.

  42. chris @48: Of course it was mentioned in the ruling; you can’t really talk about ‘is this an exception to the First Amendment’ without considering what those exceptions are. And even if every Justice thought the obscenity exception was stupid, there would have been no reason for them to discard that exception because this case was not about obscenity. It sounds as though you are disappointed that SCOTUS observed what the law was but did not try to change it.

  43. CLP @ 47

    Opposing flag burning but being against laws preventing flag burning does not make you a liar – there no financial motive for you to say one thing but do another and so it is clearly a matter of principle to you. (Incidentally, however, the only proper and respectful way to dispose of a flag is by fire. Allowing flags to become tattered and dirty is true disrespect. For some reason, people seem unaware of this.)

    If parents think Game X is fine for their child then they still have to buy it for them under the code that most stores follow. I’m afraid I cannot agree that children should have a legal right to buy violent videogames without parental permission. This is exactly the sort of thing where parents are supposed to step up and take responsibility and make decisions FOR their child – “Is my little Johnny mature enough for this game yet or not?” Since apparently most stores agree with me, this legal challenge appears utterly ridiculous and therefore I can only conclude that the games industry is lying when it says that violent games are made for and marketed toward adults rather than children.

  44. Laz @50:

    I’m afraid I cannot agree that children should have a legal right to buy violent videogames without parental permission.

    Happily, nobody is making this argument. You are confusing the issue of whether the government can forbid anyone from selling certain games to minors (no) vs. whether minors have an absolute right to have private parties sell those games to them (also no). There is a difference between “Our store does not sell M-rated games to minors” and “We would sell M-rated games to minors, but we’re not allowed to by law.”

  45. Mythago,

    My concern is over the difference between what the ruling says and what people appear to think it says. Look at the 2nd Circuit ruling on Ulysses and you will find a powerful statement on balancing art and expression with the state’s interest in suppressing certain material. This ruling should not be put in the same class. It is not about the artistry in the games or the responsibility of parents.

    What was striking about this ruling was not that the judges adhered to their previous rulings. They could have asserted, with cites, that speech related to sex and violence are different classes under the American legal system, but they went much further to defend the demonization of speech related to sex. They went beyond what was “properly before the court” to justify the origins of the 2nd class status of speech related to sex, when noting the current case law would have sufficed. It is their defense of this arbitrary system that disappoints me, not the recognition of its existence.

  46. Laz@50: I don’t think the legal challenge was ridiculous. Even if you think the games industry is being dishonest here (that they really do want to sell violent videogames to children whose parents object), they are well within their rights to challenge a law which is unconstitutional. Laws which violate the constitution should be struck down, even if they would otherwise be good ideas. For example, I’m not a big fan of the Second Amendment, but I don’t think that government should be allowed to violate it. (Nor do I think it would be a good idea to repeal it–I don’t really want to encourage any tinkering with the Bill of Rights.) The fact that seven out of nine justices on the Supreme Court, representing a broad spectrum of ideology in the nation, agreed with the challenge is pretty good evidence the challenge is not ridiculous.

    Nobody is saying that parents can’t forbid their kids from buying violent video games. The problem with this law is that it enforces a prohibition absent any evidence of parental objection. The court explicitly rejection the idea that constitutional rights of minors can be conditioned on explicit parental consent in the footnote on p.7 of its decision:

    [I]t perhaps follows from [parents’ right forbid their kids from doing certain things] that the state has the power to enforce parental prohibitions—to require, for example, that the promoters of a rock concert exclude those minors whose parents have advised the promoters that their children are forbidden to attend. But it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent—even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. And what is good for First Amendment rights of speech must be good for First Amendment rights of religion as well: It could be made criminal to admit a person under 18 to church, or to give a person under 18 a religious tract, without his parents’ prior consent. [. . . Such laws] are obviously an infringement upon the religious freedom of young people and those who wish to proselytize young people. Such laws do not enforce parental authority over children’s speech and religion; they impose governmental authority, subject only to a parental veto. In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (JUSTICE THOMAS cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional.

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