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Schwarzenegger vs. EMA II

Richard Aihoshi Posted:
Columns The Free Zone 0

Last Tuesday, the US Supreme Oral heard oral arguments in the case of Schwarzenegger vs. EMA (Entertainment Merchants Association), which is about the legality of a CA law banning the promotion and sale of violent video games to minors, specifically whether the statute violates the First Amendment right to free speech. The state is appealing after its legislation was not upheld by a lower court. The Governator is certainly and ironically no stranger to violence in the entertainment media himself. I don't know if he had to be named as the petitioner because of his current office or if that was done as some kind of publicity ploy.

The transcript can be found on the web. It runs over 70 pages, so if you decide to read it, be prepared to spend an appropriate amount of time. In addition, numerous written amicus (friend of the court) briefs were filed by supporters on both sides. Should you be interested enough - I wasn't - it appears at least some of those are available too. In any case, it may be a while before the decision is rendered.

From the perspective of an interested lay observer, I can't help but shake my head, and increasingly so as I've learned more specifics. Last week, for example, I wondered about games that aren't sold. This is obviously the case for free to play, but also applies for many subscription releases that can be downloaded at no charge. This seemed then (and still does) to get into some legalese in order to define what constitutes a sale. But from what I've seen since then, there's a lot more hair-splitting involved than just this one question.

For one thing, the law only applies to games in which violence is directed at human characters. One justice even asked about "an android computer simulated person", which the petitioner's lawyer had to admit was not covered. So, while the law has yet to be applied, in CA at this time, it's apparently fine to sell minors games in which they can injure, kill, maim, dismember and blow up aliens and humanoids, but illegal if they can do so to humans.

That seems like a fine line to draw in itself, but we can easily go beyond it. As a hypothetical example, what if a Star Trek game came out in which you can mutilate then slay Spock, a half-human, half-Vulcan? Or how about some character that's only one-quarter human? Or one-eighth? Or one sixty-fourth...? And what about members of a species that evolved to be the same, but separately and in parallel, say somewhere in the Delta Quadrant? In the combined *ahem* wisdom of CA's elected representatives, would it be alright for young gamers to exterminate them?

In addition, can completely non-alien, non-artificial characters still not be human? What if they have physical attributes, abilities or both at levels beyond those of real people? MMOGs and games in general have no shortage of human NPCs that can do thing we actually can't, like cast spells or fly. There are many more with qualities that are highly exaggerated such as prodigious strength or extraordinary speed. How strong or fast is superhuman? Can that be the same as no longer human?

And does PvP, which is of course a very common MMOG element, warrant different consideration from killing NPCs? Is the violence directed at the character, whether human or not, or at the person controlling it? It's easy enough to answer the former, but that's based on common sense, a quality that... well, let's just say what's legal and what's just aren't always the same.

While it's pretty easy to poke fun at this particular case, that's not the only reason it has stuck in my mind recently. I also think there are important bigger picture-type issues that apply to games and the industry in terms of where reasonable governmental involvement turns into legislative interference. This is, of course, a subjective matter, so there isn't a definitive, universally acceptable line.

However, I hope the Supreme Court have enough collective wisdom to know CA has stepped over it. This seems like a complete no-brainer to me, but we can only wait and see what the court decides. Frankly, it concerns me that the justices felt the state's case had enough merit to warrant accepting it in the first place. I know they're looking much more narrowly than I am, at a specific legal issue, not the much broader moral and societal issues. But I fear that if they rule the law constitutional, various governments will take it as permission to go farther, starting a snowball effect with more and more unwanted (by me anyway) incursions into the industry.


Richard Aihoshi

Richard Aihoshi / Richard Aihoshi has been writing about the MMOG industry since the mid-1990s, always with a global perspective. He has observed the emergence and growth of the free to play business model from its early days in both hemispheres.