Oklahoma isn’t OK, as far as the video-game industry is concerned. Pending legislation in the state linking video games to pornography and making the sale and exhibition of violent video games to minors a fineable offense is drawing fire from the industry’s main trade association.
HB3004, proposed by
State Senator Glen Coffee
(R-Oklahoma City) and Representative Fred Morgan (R-Oklahoma City), is awaiting final congressional approval before going before
Governor Brad Henry, who is widely expected to sign the bill into law. Even if signed by the Democrat governor, the proposal is unlikely to pass constitutional muster, according to one expert; nevertheless, the
Entertainment Software Association
(ESA)—the de facto mouthpiece for the video game industry —and its grassroots political arm the
Video Game Voters Network
(VGVN) are taking no chances. The groups have put out a call to defeat the measure before it’s passed into law.
Coffee and Morgan’s bill would lump violent video games to pornographic content. The bill defines “inappropriate violence” as “patently offensive to prevailing standards in the adult community” and the content lacking in “serious literary, scientific, artistic or political values for minors.” The bill goes on to define criteria such as “glamorized or gratuitous” violence, violence used to “shock or stimulate,” violence that’s not “contextually relevant to the material” and so on.
“It’s important that we protect children from exposure to what, in many cases, is shocking and gruesome violence,” said Rep. Morgan in a statement.
ESA President Douglas Lowenstein called the Oklahoma legislation a “constitutional non-starter” and said that six courts in five years have blocked or struck down similar laws.
“We hope that, sooner or later, politicians will stop trying to seek headlines by subverting the Constitution and frittering away desperately needed taxpayer dollars and instead enter into a constructive partnership to educate parents about the tools available so they, not government, can raise their kids as they see fit and buy the games that are right for their unique families,” Lowenstein said.
Lowenstein called on legislators to work with parent groups, the industry, retailers and others to educate parents about the industry’s ESRB ratings and content descriptors, and said his organization welcomes the opportunity to work with them.
Clay Calvert, Professor of Communications and Law at Pennsylvania State University, agreed with Lowenstein.
“The overwhelming precedent is very high against laws targeting violent content in video games,” he told
. “The Supreme Court has specifically limited obscene speech to sexual content, not violent content. Violent content has always been protected.”
The Oklahoma bill specifically singles out video games, and that’s something else that doesn’t sit well with Calvert, who is also co-director of the Pennsylvania Center for the First Amendment.
“Just because something is interactive doesn’t limit its First Amendment protection,” said Calvert. All good literature is interactive in some way, he added. Calvert asserted that video games have simply joined movies, music, and comic books as the latest popular medium to be attacked.
The Oklahoma legislation attempts to apply a modified version of the “Miller test” for obscenity, Calvert explained.
Miller v. California
is considered by free-speech advocates and legal scholars to be the modern test for obscenity; it defines a three-pronged test that can be used to determine if material is obscene. Among the criteria are whether the average person would find that the work appeals to a prurient interest; whether the work describes sexual conduct in a patently offensive way; and whether the work as a whole lacks serious literary, artist, political or scientific value (what’s known in legal circles as the “SLAPS” test).
“Do you really want it left to the government to define what ‘inappropriate violence’ means?” Calvert asked.
Pandering to parents
Calvert dismisses attempts like the Oklahoma legislatures as “pandering to parents.”
“It gives parents and voters the appearance of what I would call ‘feel good legislation,” Calvert said. “It makes it look like politicians are doing something about real-life violence. It’s a lot easier to blame video games than it is to do something about real violence in the streets.”
The bill’s authors disagree. “Games that include the killing of police and other law enforcement officials, for instance, can only have a desensitizing effect on children,” said Sen. Coffee in a statement.
Calvert countered that scientific consensus is far from unanimous on this point.
Some critics of the ESA’s position on video game legislation liken restrictions on violent video games to prohibitions on underaged consumption of liquor or cigarettes. Laws prevent children from smoking and drinking, so what’s to stop us from preventing them from playing Grand Theft Auto: Vice City?
“The big distinction is that tobacco and alcohol are physical products,” Calvert said. “Violent video games, violent books, violent artwork — they all have a speech component. And that makes them subject to protection under the First Amendment.
“We believe that a combination of parental choice and parental control is the only legal, sensible, and most importantly, effective way to help parents keep inappropriate video games from children, and we dedicate ourselves to working with all parties to accomplish this goal,” Lowenstein said.