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? 





     

Somewhere Rush Limbaugh Feels Chest Pains Again

I bet you already know how the Right is going to react to this should it come to pass while Obama is still in office. And it's looking like it just might.

Court watchers believe two of the more liberal members of the court, justices John Paul Stevens and Ruth Bader Ginsburg, could decide to step aside for reasons of age and health. That would give the president his second and third chance to shape his legacy on the Supreme Court.

It's almost certain that the talking point are being written and that Glenn Beck has decided that this is all a grand conspiracy perpetrated by the Obama administration to take over the entire Supreme Court with robots from the future.

A History Of Bitterness

The country has reacted almost as predicted to Justice Sam Alito's "not true" mumble during Obama's premiere SOTU speech, but this shouldn't have come as a shock considering the Alito holds a grudge tighter than just about anyone.

Just days before Obama's inauguration, he paid a visit to the members of the Supreme court at the request of Chief Justice Roberts. Guess who didn't bother to show up?

The absence of Justice Samuel A. Alito Jr., who was at the court Wednesday morning for arguments in two cases, was a mystery. He has, however, voiced lingering anger over Senate Democrats, including Obama and Biden, who voted against his confirmation three years ago. When walking on Capitol Hill, Alito has said, he crosses to the far side of the street whenever he nears the Senate Office Building.

This paints a crystal clear picture of the type of man Alito is and adds relevant context to what he did on Wednesday night. This man is not fit to be a member of the Supreme Court, as he not only lacks the ability to keep his feelings in check in everyday life and has shown the entire world that he is unable to do so in a professional setting.

( h/t to commenter rdale )

Supreme Backfire?

I was thinking this morning that aside from the recent SCOTUS decision to allow big corporations/labor unions the same "free speech" rights as individuals wouldn't necessarily be a complete molestation of the political process. The reasoning behind this is rather easy to see when you realize that you'll be able to see what companies are backing a particular candidate. And, considering Wall-Street's love of Republicans, wouldn't it stand to reason that this should be an eye-opener for perspective Republican voters?

But the broader question is this - will the GOP care if people know who stands with them, because they sure are loving this decision.

– Sen. John Cornyn (R-TX): “It is about a nonprofit group’s ability to speak about the public issue. I can’t think of a more fundamental First Amendment issue. … [The ruling could] open up resources that have not previously been available [for Republicans].” [NYT]

– Rep. Steve King (R-IA): “The Constitution protects the rights of citizens and employers to express their viewpoints on political issues. Today’s Supreme Court decision affirms the Bill of Rights and is a victory for liberty and free speech.” [Statement]

– Rep. Mike Pence (R-IN): “If the freedom of speech means anything, it means protecting the right of private citizens to voice opposition or support for their elected representatives. The fact that the Court overturned a 20-year precedent speaks volumes about the importance of this issue.” [Statement]

– Senate Minority Leader Mitch McConnell (R-KY): The court took a step toward “restoring the First Amendment rights [of corporations and unions]. … By previously denying this right, the government was picking winners and losers.” [AP]

– RNC Chairman Michael Steele: “Today’s decision by the Supreme Court in Citizens United v. FEC, serves as an affirmation of the constitutional rights provided to Americans under the first amendment. Free speech strengthens our democracy.” [Statement]

– Senate Candidate Marco Rubio: “Today’s SCOTUS decision on McCain-Feingold is a victory for free speech.” [Statement]

There is a fair bit of Republican camouflage being thrown around with this decision. They are framing this purely as a "First Amendment" issue, that it's private citizens that will benefit. This completely ignores that fact that large corporations will have more control over the voices of politicians that claim to have "private citizens" best interest at heart.

Sonia Steps It Up

During Sonia Sotomayor's first day on the bench of the US Supreme Court, she showed that she was up to the task of being an "active" justice.

Sotomayor displayed no reticence on the first day of her first term on the court; in the two cases on the docket, she asked as many questions and made as many comments as Chief Justice John G. Roberts Jr. The only sign of her newness was that she at times forgot to turn on her microphone before posing a question.

Conservatives will likely focus on the mic mistake or largely ignore this all together.

More from The Huffington Post.

Clarence Thomas has gone through a full 144 oral arguments and never spoken a word. Certainly, conservatives will likely say that he is studying the situation, reading those that are presenting their case, and doesn't need to speak up. However, the alternate argument can be made that he is either more concerned with other thoughts or simply just isn't paying attention. I'm leaning toward the later.

For a first day out, Sotomayor has proven that she's got the skills.

He's Judge, Jury, And Executioner In His Mind

Naturally, this reactionary response was predictable.



Thankfully Limbaugh is not a Judge, as he has relative sense of judicial precident or the power that the Supreme Court has verses the 2nd District Court of Appeals.

In following precedent , Sotomayor ruled accordingly with the Ricci case:

New Haven’s decision to toss out test results after a promotion test was administered is not unprecedented. Indeed, in the 1984 case Bushey v. New York State Civil Service Commission—decided eight years before Sotomayor became a judge—the Second Circuit considered a nearly identical case. Just like in Ricci, in Bushey white applicants significantly outperformed minority applicants on a promotion test, and the employer in Bushey responded by adjusting minority scores upward to render more non-whites eligible for promotion. The court upheld this rescoring of minority applicants, explaining that employers are allowed to “voluntarily compl[y]” with civil rights law by reconsidering tests that have an adverse impact on minorities.

Because Bushey has never been overruled, it is considered a binding precedent in the Second Circuit, and Judge Sotomayor was required to follow it when her panel was called upon to decide Ricci. To do otherwise would mean ignoring the law in order to benefit a sympathetic plaintiff—exactly the kind of “judicial activism” Buchanan accuses progressive judges of engaging in.

The US Supreme Court, however, is not bound within the same constrictions has the 2nd Distric Court of Appeals. Today, the Supreme Court set their own precedent in a 5 to 4 ruling.

Limbaugh's cacauphonus blathering isn't without an echo.

Today, Texas Republican Senator John Coryn issued a statement in which he claimed that all 9 justices were "critical" of Sotomayor:

Today's decision is a victory for evenhanded application of the law. Saying the earlier decision was 'antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race,' the Supreme Court saw the case for what it is: a 'race-based decision' that violates federal law. And while the Justices divided on the outcome, all nine Justices were critical of the trial court opinion that Judge Sotomayor endorsed."

Being this close to the 2010 election cycle, Sonia Sotomayor, as well as the Ricci case, is going to be a much used talking-point within the conservative caves of the Republican party. However, an overwhelming majority of Americans believe that she should be confirmed:

Sonia Sotomayor enjoys broad public support for a seat on the U.S. Supreme Court, with large majorities of Americans rejecting the notion that her sex, race or ethnicity play a negative role in how she decides cases as a judge.

Sixty-two percent in this ABC News/Washington Post poll say Sotomayor should be confirmed, among the highest levels of support for a high court nominee in polling data back to Robert Bork in 1987. The only numerically higher was 63 percent initial support for Clarence Thomas, which fell when his nomination turned controversial.

Whereas the inflamatory rhetoric applied by the likes of Rush and Fox"News" are going to play well to the conservative base, it's not going to help them with centrist Republicans who feel that the party is leaning more towards the "white is right" mantra.