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Tuesday, January 15, 2013

If The Right Wants To Legislate Video Games, They Might Ought To Consider "Freedom of Speech"

     After Newtown, like after any great tragedy where lives are lost in a mass-shooting, you automatically know that the Modern American Right will blame everything but the weapon used - especially "violent video games".

     That later catagory has always intrigued me when the nation as a whole tries to pin the blame for the actions of another on some object, action, disposition, or even attempting to sweep the whole issue under the metaphorical rug.  And the reason it has intrigued me is twofold:  who(m) decides what level of violence to address and what is to be done with the game(s) - meaning will they be summarily removed from the individual store inventory and returned to the manufacturer or will they be taxed.

     Seems that the former isn't being addressed in an honest manner and the latter will most certainly be taxation.  But this whole process posses a threat to one thing the Modern American Right aren't considering: The First Amendment - Freedom of Speech and Expression Thereof:

     I never hasten to reference the ideas of an author from HotAir, as they are generally misleading, patently false to such a degree as to be obscene, and of such a sophist nature that one can't but laugh that people take them even modestly serious.  However, it appears that Patrick Ishmael has got the right idea :

.....I think there will be significant interest in a piece of legislation filed yesterday that would levy “upon sales of all violent video games an excise tax based on the gross receipts or gross proceeds of each sale at a rate of one percent.” Last year in Oklahoma, legislator William Fourkiller (yes, that is his real name) introduced a similar piece of legislation, and it appears the Missouri legislation uses a fair amount of that bill’s language. For instance, a “violent video game” in the Missouri bill is defined as “a video or computer game that has received a rating from the Entertainment Software Rating Board of Teen, Mature, or Adult Only” — identical to the Oklahoma proposal.

Of course, as most video game players know, E.S.R.B. ratings do not deal only with “violence” but with language, sexual matter, content dealing with drugs and alcohol, gambling and many other factors.

     And while Congress cannot legislate your freedom of speech or expression thereof, the language within the First Amendment - dependant on the "type" of speech used - does have the ability to be interpreted by the Supreme Court:

 The most basic component of freedom of expression is the right of freedom of speech. The right to freedom of speech allows individuals to express themselves without interference or constraint by the government. The Supreme Court requires the government to provide substantial justification for the interference with the right of free speech where it attempts to regulate the content of the speech. A less stringent test is applied for content-neutral legislation. The Supreme Court has also recognized that the government may prohibit some speech that may cause a breach of the peace or cause violence. For more on unprotected and less protected categories of speech see advocacy of illegal action, fighting words, commercial speech and obscenity. The right to free speech includes other mediums of expression that communicate a message.  The level of protection speech receives also depends on the forum in which it takes place.

     So let's take two things into account here:  What type of speech is a video game?  Since personal moneis are being used - and in light of the Citizen's United - money is now considered "speech" by the US Supreme Court.  Things could get dicey at this point.

     We'll start with what "type of speech" a video game is.

     Does the playing of a particular game - violent or not - interfere to threaten the "right" of another?  Is it "hate speech"?  And who(m) decides either of these or the extention or addition to which this portion of the First Amendment applies. 

     Most people I know - unless they are lucky enough to attend a gaming convention where a new game is released - at this point I'm reminded of the initial commercial for Black Ops II which consisted of joyous gamers reveling at the gameplay and the moment they got to buy their copy - most people play at home and don't have contact with others unless they are playing online in a team format or someone is in the room with them.

     Have you ever come across a person(s) that complained about a video game being played within their immediate proximity and claimed that is removed their right to freedom of religion, the press, assembly, et. al.?  Neither have I.

     So what about the second piece of the puzzle that I don't think many are going to consider - money is new considered speech.

     In the Supreme Court's ruling in the still controversial Citizen's United case, money can be "donated" privately and it is now considered speech.  But, does that extend to money being "donated" to gaming stores and traditional retail outlets - which a set percentage is given to the game's producers - and it still be considered speech?

     I would have to say yes, though there may be just enough gray-area there to have a debate that could drag on endlessly.   Let's take a look.

"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associates of citizens,  for simply engaging in political speech"

     Uh, oh.  "Political Speech".  That could untmately be the downfall here.  But let's look on.

" The majority argued that the First Amendment protects associations of individuals in addition to individual speakers, and further that the First Amendment does not allow prohibitions of speech based on the identity of the speaker. Corporations, as associations of individuals, therefore have speech rights under the First Amendment. Because spending money is essential to disseminating speech, as established in Buckley v. Valeo, limiting a corporation's ability to spend money is unconstitutional because it limits the ability of its members to associate effectively and to speak on political issues."

     It's these two particular sections of Justice Kennedy's Majority Opinion.  So again, what is considered "political" speech since not every game created that has a particular ESRB rating that includes violent content of a pre-determined level, think of all the games that do.  These would likely include games such as the afformentioned Call of Duty: Black Ops series and many other "first person shooters", but also some that have content that is expressly of a political nature - such as themes and character arcs that include a socio-political bent. 

     No, we aren't going to see this in even semi-violent games like the  Need For Speed series, but would it extend to the Grand Theft Auto series?  Would even a minimal of socio-political content warrant referencing Citizen's United?  Certainly something to consider.

     And while there are systemic risks to consider - the phrase "job killing legislation" certainly springs to mind - how is this going to benefit our country, if at all?  Will banning or limiting the sale of "violent" video content prevent tragedies like what happened at Newtown?  At Tuscon?  At Portland?  In the next city?  I have to be blunt and say that this line of attack from the Modern American Right is a complete waste of our legislators ( at the local, state, and federal levels ) time and our tax dollars - since we are paying their respective salaries. 

     As an aside - is there a definative study that shows that a specific game or games causes a person to act or react in a particular way? 


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