Schwarzenegger, Entertainment Merchants Association, and Irony

First, thanks so much to Danielle and the other authors at Concurring Opinions for taking me aboard for a while!  Let’s get right down to it: I wanted to talk about Schwarzenegger v. EMA before the month was out, given that oral argument was on November 2.  Oral argument always goes in twisty directions, but the court seemed to me to be just barely grazing two huge issues that go to the realities of the video game industry — first, how content for games is produced, and second, how games are now distributed.  More after the leap.

A little background: California wants to ban the sale of violent video games to minors, and every lower court so far has refused to permit a special exception to the First Amendment regarding violence and children (the parallel is Ginsberg, in which the Court permitted a special exception regarding kids and girlie magazines).  Lots of ink can and will be spilled over the First Amendment issues.  That’s not what bugged me the most.  The argument really read as though we were discussing the game industry of 20 years ago — one in which video game makers are like movie directors and control the content of their creations, and one in which games are sold over the counter rather than by digital distribution.  Both ideas are now very much out of date.  Video game makers are increasingly providing toolsets for user-generated content.    When this content is sexual, government organizations still count it as content of the game — see this FTC report on kids in video games.  What bothers me about that report, as I’ve blogged elsewhere, is that it treats trashy talk by kids to kids as sexual content in a video game.  This puts game manufacturers on the hook for “content” they had nothing, or next to nothing, to do with.

And if you think user-generated sexual content is bad, think about violence.  User-generated content is all about the violence (WARNING: Mildly NSFW language).  The first thing that users do when they get a game’s toolset is blow stuff up, kill people, or some combination of the two.  Here’s my question: How in the world can a video game manufacturer protect itself against the California law if it can’t control the content of its own game?  This is how games are made now.  On to how games are distributed.  The idea that California is going to do any good by erecting, as they say, a barrier between the retail sales clerk and minors, is a little dated.   Do people not use direct2drive?   Steam, at least? How in the world is a video game download service going to know whether or not they are selling to a minor in California?  Ban all sales to California IP addresses?  Proxies are easy and effective.  Rely on the use of a credit card as a proxy for age?  The statute doesn’t provide for an exception on those grounds.

What strikes me is that these issues at least got some play in the big 1990s First Amendment / internet cases.  In striking down broad sections of the Communications Decency Act, for example, the court was concerned about digital distribution — the problem that an online seller has no idea whom she is dealing with.   But digital distribution didn’t enter the Schwarzenegger oral argument at all.  So — while I was encouraged by many of the questions put during oral argument (and disquieted that the Court granted cert. when every lower court had been getting these cases right), I do think that California and the Court are attempting to regulate an industry that is rapidly changing, and changing in ways that make the statute at issue especially disquieting.

Oh, and the irony?  How many of Governor Schwarzenegger’s movies would make a similar cut?

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