When the Supreme Court of the United States hears opening statements for “Schwarzenegger v. Entertainment Merchants Association” this Tuesday, the video game medium will face its most epic boss battle ever. The court case concerns California Civil Code 1746-1746.5, which prohibits the sale or rental of games that portray “killing, maiming, dismembering or sexually assaulting an image of a human being” to people younger than 18 years old. The key issue is whether the “violent video game law,” as it’s also known, is unconstitutional by way of impinging on free speech.
Written by California politician Leland Yee, the legislation began as California Assembly Bills 1792 & 1793 and was signed into law in 2005. The highest court in the land will decide on the constitutionality of the statute and the SCOTUS ruling could influence the fates of game developers and would-be players alike. As it currently stands, the law exacts a $1000 fine for each instance where an M-rated game is sold to a minor. To get some perspective on what hangs in the balance, we spoke with Joseph Olin, President Emeritus of the Academy of Interactive Arts and Sciences. The organization was founded in 1996 and serves to build awareness of the breadth and depth of video game creativity.
The AIAS, along with the International Game Developers Association, has submitted an amicus brief to provide context for the nine Justices of SCOTUS. The document–also known as a “friend of the court” brief– proffers that video games are a form of artistic expression that deserve the same protections afforded to film, books or music. Olin’s held the position of president since 2004 and will be stepping down at year’s end and, in the interview that follows, he talks about what’s at stake in the upcoming court case.
With Schwarzenegger v. EMA going before the Supreme Court this week, I wanted to ask you about the repercussions could happen on two levels. A decision that upholds the law will obviously have legal and financial consequences rippling out for developers and retailers. And it also seems like a broader cultural impression could be left on the minds of the uninitiated. Can you talk about how you see these things playing out?
You’re essentially asking for a “what if?” scenario. And that’s a natural thing, because I think that most of the creative and financial stakeholders of the interactive entertainment industry are still sort of mystified. Mystified that the state of California, through the Governator and attorney general Jerry Brown, were successfully able to have the Supreme Court hear this case.
There’s 17 other instances where the EMA/ESA (Entertainment Software Association) have successfully had comparable rules struck down or ruled unconstitutional on a state level. No one really wants to think about the consequences of a decision by the courts to overturn the appellate ruling on the Yee bill. On a corporate level, on a creative, on an independent development level, you can’t really do anything until you know what it is you have to do. Ultimately, I think that the biggest flaw within the Yee bill is that it doesn’t give you any hard points to make decisions about.
Right. It would be one thing to say, OK, this kind of content is unacceptable. It’s a danger to consumers.
I think the easy metaphor is the way we legislate and regulate tobacco and alcohol against from underage drinking and smoking. You can usually read every month which local merchants and bars that have sold alcohol to underage kids and how they’ve been busted. They pay significant fines and can lose their licenses. And the same thing with tobacco. If a drugstore goes in there and sells to Debbie, who looks like she’s 18. That’s a hard point. It’s a black-and-white situation. It makes it very difficult to get around the extant laws.
The Yee bill offers very little guidance on how to avoid running afoul of it. That’s not new. If you look at the history of media, film was a difficult thing to regulate on the states and the country levels. It’s why the Hays Commission was formed, and then we go the Hays Code in 1932, which outlined what was unacceptable. That stood until 1952, when before film was finally granted first amendment protection by the Supreme Court with Joseph Burstyn, Inc. v. Wilson.
And that was about 30 years after its inception as a popular media, about the same place that games are at now.
Correct. And film had missed protection in previous iterations on both federal and local levels. Part of it what changed was the passage of time, which adds context. And the other part of it was really, I think, people’s acceptance of film as a form of cultural expression. Just because something was created from a commercial perspective doesn’t mean that it doesn’t enjoy the same levels of protection than any other artform does.
How much do you feel like Schwarzenegger, Brown, and Yee, prey on a certain amount of cultural ignorance about video games? You think that’s a conscious decision that they’re making in their strategy?
That would be certainly one school of thought. Having listened to Senator Yee speak before, there’s no doubt that he’s got intellect. He just has a particular perspective that comes from his training as a child psychologist, where he feels that hyper-violent images have causal properties to young children. And that’s fine to believe that. And as a parent, Leland Yee should be able to say, I don’t want my children to play these games, so they can’t. End of story. It should start and end there.
In the same way, I’m a parent of three, who have thankfully all survived their adolescence and their downloading of a variety of things to their personal computers. All that was regulated by my filtering software or the blocking of MAC addresses until they got the point. It’s my job as a parent. I don’t expect anyone else to do that for me. So, that’s a fundamental thing here. I don’t think that Leland Yee was doing this as a grandstand play or because he has designs to be the next governor or senator from the state of California or to go onto a national thing. He did it because he fundamentally believes it.
Sounds like you have some grudging respect for him…
I respect that he can have his beliefs, in the same way the constitution allows you to have yours and me to have mine. But the other side, with Governor Schwarzenegger, I think there’s definitely some politics in his involvement.