Schwarzenegger vs. Interactivity

For the past two years, I have been leading a not-for-profit organization called Triangle Game Initiative, charged with building up the Raleigh-Durham interactive software industry. We had our breakthrough success this past Monday, July 12th, when the North Carolina legislature passed a bill providing financial incentives for “interactive digital media” companies (including videogames, immersive learning products, simulators, and more) similar to those enjoyed by our competitors in Georgia, Louisiana, and Montreal. Once Governor Perdue – a vocal supporter of digital and interactive media – signs the bill, it’ll become law.

But while we’re celebrating our victory here on the East Coast, dark clouds are gathering on the West. The State of California has spent the past five years attempting to restrict the First Amendment rights of game developers and consumers. On the very same day that North Carolina passed a bill to support the game industry, California filed a written brief with the United States Supreme Court arguing for the reinstatement of a law that made it illegal to sell or rent “excessively” violent videogames to minors.

The Supreme Court case in question, Entertainment Merchants Association (EMA) v. Schwarzenegger, is an extremely important one; one that will have far-reaching consequences for the U.S. gaming community and beyond. Indeed, it has the potential to hinder America’s Free Speech itself through the censorship of interactive media.

Judges have repeatedly struck down the Californian law as unconstitutional – initially by District Court Judge Ronald Whyte in August 2007, and again by a three-judge panel of the 9th Circuit in February 2009. The 9th Circuit rejected the state’s attempts to link games and real-world violence as “based on correlation, not evidence of causation” with “significant, admitted flaws in methodology.” The Court also rejected as unconstitutional the law’s requirement that retailers label “violent” games with a four-inch square label.

In striking down the law, the 9th Circuit followed a trend set by nine previous federal court decisions, all of which have uniformly held that videogames are protected speech, just like other content such as books, comic books, movies, and music. But on April 26th, the Supreme Court of the United States granted the state of California’s petition for it to review the decision.

It’s not difficult to understand the Court’s decision to review. The question of whether videogames are protected speech has, after all, come before the federal courts ten times in the last few years, and each time the decision has hinged on a matter of Constitutional interpretation. Up until now, these court cases have largely only interested creative artists who make videogames and the consumers who buy them.

The California law could be found unconstitutional simply because it could lead to “chilling effects” on free speech. In legal terms, a “chilling effect” occurs when speech or conduct is suppressed by fear of penalization. For instance, traditional “brick and mortar” businesses, such as GameStop and Wal-mart will have to restructure their entire business model to ensure minors are not sold games to avoid liability of $1,000 per sale. Additionally, those in best control of the point-of-sale (sales clerks) are specifically exempt from liability, shifting a burden of increased training, supervision, and thus higher costs. These businesses may decide that it is more cost effective to not stock and sell these games all together, effectively chilling speech to all members of the community.

In addition, businesses with an online distribution model are even less able to ensure the purchaser of the game is not a minor. Since online digital distribution retailers are national entities, they might be required to geo-target California as a state where no mature games will be sold at all as the only way to avoid liability under this bill. Again, this would be a chilling effect, because it will impose penalties which would reduce the likelihood of such speech being made at all.

But California is taking a new tact to defend its Bill, one that goes to the heart of what makes videogames special: “the interactive nature of gaming.” That is, California thinks the government should be able to censor violent games, even though it can NOT censor violent books or violent movies, simply because games are interactive -because the consumer of a videogame is actively engaged with the content, rather than merely consuming it.

Labeling videogames as a category of unprotected speech because of their interactive nature is very dangerous territory. The interactivity of the medium makes games not only a form of speech from the content creator to the player, but turns them into a platform and forum for person to third-person speech, independent of the content creator’s speech. Not only would upholding the Californian law declare that the government may regulate creative mediums in a digital environment as unprotected speech, but all digital forums and mediums as an unprotected classes of areas for speech. This blatantly goes against First Amendment rights – not just the First Amendment rights of those who create games, but of those who are participating in all types of interactive media.

Videogames are merely the spearhead of an interactive revolution that is transforming our world. Interactivity is coming to us everywhere – on the websites that we visit, the television we watch, even the radio stations we listen to. American Idol is interactive content. So is the online encyclopedia Wikipedia. So is the internet radio station Pandora.

What is really under question in this case is whether we want the Supreme Court to rule that interactive media is subject to more state regulation than traditional media-simply because its interactive. The same reasoning that lets a state regulate a violent videogame would also give the government power to control who can access Wikipedia or a TV show that invites its audience to vote online. Allowing regulation for interactive media is inviting censorship into our lives, impeding our constitutional rights, and negatively impacting fair market practices.

This then, is the irony: Even as forward-thinking leaders like those of North Carolina are helping to build the interactive future, regressive leaders like those of California are trying to swing a wrecking ball at the building. Let’s hope the edifice the Founding Fathers built is strong enough to withstand their assault.

Special thank you to Kelly Helder and Janelle Bonanno for their contributions to this piece.

Alexander Macris is co-founder and publisher of The Escapist, as well as president and CEO of its parent company, Themis Media. He has also written two tabletop wargames, conceived and edited the book “MMORPGs for Dummies,” and designed the award-winning web game “Heroes Mini.” After hours, he serves as president of Triangle Game Initiative, the Raleigh-Durham area’s game industry association, and runs a weekly tabletop roleplaying game campaign of concentrated awesomeness.