Appeals Court Strikes Down California's Violent Game Ban 190
NewYorkCountryLawyer writes "The US Court of Appeals for the Ninth Circuit has struck down as unconstitutional a California statute purporting to ban the sale or rental of violent video games to minors. In a 30-page decision (PDF), in Video Software Dealers Association v. Schwarzenegger, the federal appeals court ruled that 'the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the 'variable obscenity' standard from Ginsberg v. New York, 390 U.S. 629 (1968). Applying strict scrutiny, we hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. Additionally, we hold that the Act's labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion.'"
Tempting fate (Score:5, Funny)
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Fate got bored of temptation long ago, though nice try.
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Looking at your profile, I wonder how you can pick up anything at all. Well done for being daring!
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Since you brought it up. What's so different about "violent" games than "violent" R-rated movies that every kid even in the 80's had on VHS.
Why is there not a LAW restricting sales and manufacture of R-Rated movies in California? As a child of the 80's video games weren't that violent... I'll admit I thought about bashing some barrels with a hammer and beating up apes.. but it was to save a girl. On the other hand I really did want to beat up bullies as a Terminator, or a Predator, or an Eraser... I'd say t
He'll be back (Score:2)
http://www.game-walls.com/images/terminator%203/terminator_3_the_redemption_01_1024x768.jpg/ [game-walls.com]
Re:He'll be back (Score:5, Funny)
http://www.game-walls.com/images/terminator%203/terminator_3_the_redemption_01_1024x768.jpg [game-walls.com]
"Sale or rental" (Score:2, Funny)
So this doesn't apply to piracy, right? Then the kids won't be affected anyway.
Good Call (Score:5, Interesting)
Re:Good Call (Score:5, Insightful)
I'm not so sure.
We ban R-rated films from minors without a parent accompanying the kids. The reason for this is the graphic nature of many films. (See Saving Private Ryan)
Kids are exceptional impressionable, and many of these games are as violent if not more so than many R-rated movies.
I have no problem if the kid's parent comes to the store and buys the game with the child. However, children alone and without supervision should not be allowed to randomly pick up ideas that they have no guidance for.
I know I'll get modded down. There's a reason these things should not be available to kids without guidance. The human brain does not develop its judgement part until between 18-22 years old, and the judgement of kids younger than 18 is notoriously horrible.
IMHO, there are a majority of kids who don't have proper guidance and have no moral frame of reference to deal with these situations. Examples:
- Recent story about a girl arrested for text messaging during class and putting the phone in her underwear so the teacher couldn't get it.
- The many people who do professional wrestling moves on their little brothers and end up killing or disabling them.
- Kids who do karate moves on others because Chuck Norris is so badass.
- The girls at a Massachusetts middle/high school who treat getting pregnant is no big deal and mom will take care of the baby anyway.
- The fact that two spaces after the end of a sentence seems to be too much to ask for.
I love libertarian views, but this stuff is not meant for people who have no rational frame of reference. I do not want these people influenced by something they are physically incapable of understanding. That said, there are a few exceptions, and the parents need to be the judge to determine whether that maturity is there or not.
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We ban R-rated films from minors without a parent accompanying the kids.
Except we don't. MPAA ratings are just guidelines, exactly the same as ESRB ratings. Most theatres choose to prevent people under the age of 17 from entering R-rated movies when not accompanied by a parent, just as most video game resellers choose to prevent people under the age of 17 from buying MA-rated video games when not accompanied by a parent.
It never ceases to amaze me that, despite the seemingly weekly "Someone's trying to ban video games!" article on slashdot, there are still people with the misgu
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If you think GTA glorifies rape, you need to get your head checked.
Re:Good Call (Score:5, Interesting)
The human brain does not develop its judgement part until between 18-22 years old, and the judgement of kids younger than 18 is notoriously horrible.
No offense, but I don't agree with a single thing you have said. The human brain starts developing its "judgment part" when it's in the womb. Many children's "judgment" is a lot better than that of most adults.
During the first six years of my legal career I studied under the late Louis Nizer, who was probably the greatest trial lawyer of the second half of the 20th Century. He said that the best way to know whether your position in a case was right or wrong was to present the facts of the case to a 15-year old; if the 15-year old votes for the other side, then settle the case, quick.
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It seems you may have hit reply before perusing the rest of GP's comment. I took the whole 'judgment' thing to be his main point, but I got caught up in the diction. . . turns out what (I think) he's saying is that the younger you are the less life experience you have, and consequently the more diff
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Well, from what I've read, it's not judgment per se, but the complete processing of the possible consequences involved in a decision that doesn't fully develop until early adulthood.
Rare is the adult that ever becomes capable of "complete processing of the possible consequences involved in a decision".
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No offense to your profession, Ray, but......
:)
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NYCL, I thought you were branching out to other legal issues, but then I saw your other comment about the RIAA lawyers being lawyers for this case also.
Well there are other things I'm interested in. Just thought it was an interesting 'aside' that others without my 'RIAA Radar [riaaradar.com]' might not have picked up on the fact that the very same firm that so passionately fought for 'freedom' for its clients would deny freedom to others.
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Re:Good Call (Score:4, Informative)
We ban R-rated films from minors without a parent accompanying the kids.
Please cite the relevant law. I am quite sure that it does not exist.
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We ban R-rated films from minors without a parent accompanying the kids.
Not quite. Any 17 year old girl who has a 28 year old boyfriend with a mullet and a TransAm can get in to watch one.
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Absolutely right. I think just about everybody agrees that there are things that are not for kids. Now the real issue is does "should not be available" mean "should be forbidden by law"? I tend to think there are certain, very limited, cases where the government does have a role in protecting the child's rights against abuse or neglect by the parents, but in almost all cases it is in
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This was a really good ruling. Leave censorship to the parents. There has been yet to prove a direct corollation between violent behvior and video games. Some studies have shown that operrant conditioning is happening where video game players may overcome the natural inhibition to kill. However, this theory fails to explain why most people that play violent video games do not go out and act like that in the real world. Behavioral science, while fascinating, is inexact at best. Legislating people's actions based on an inexact science is never a very good idea.
When I was a kid my favorite game was war and my favorite toys were toy guns. In real life I've never in my life ever used a weapon, not even a stick, against another living creature, or even wanted to.
As far as I'm concerned coming up with a law like is just a bunch of phony politicking, pandering to the dumber voters amongst us.
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In real life I've never in my life ever used a weapon, not even a stick, against another living creature, or even wanted to.
You've never used roach or ant spray? I suppose it's possible, altho I'd suppose you don't live in Phoenix... No rat traps or d-Con(R)? Or do you not consider ants/roaches/rats "living creatures"?
But I agree with your concept tho I'd not characterize it as "favorite", but certainly a major theme. FWIW, my folks didn't encourage and wouldn't buy us toy guns (with the exception, for some reason, of squirt guns), but that didn't stop me or my playmates from finding and using appropriately shaped sticks. We
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It doesn't have to. It shows (apparently) that video games cause some people to act violently. That's cause enough to consider a ban, regardless of what the other people do.
Anyone notice the RIAA lawyers... (Score:5, Informative)
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What's so hard to understand?
Lawyers are like hitmen. They just live on the blood, but there is always OTHER PEOPLE who hire them to do the dirty work.
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And eventually end up corrupting a large chunk of the legal system. There have to be limits placed somewhere.
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Unlike us regular folk, who have no need for food. . .
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Lobbyists Duke it Out (Score:3, Funny)
The violent move industry is losing market share to the violent video game industry. The video game industry is not paying their hired scum politicians enough apparently.
To the first amendment (Score:2, Funny)
Here's a quarter honey, buy a clue. (Score:4, Informative)
The ninth also leads in the number of cases that don't wind up being reversed. Not that either statistic tells us anything meaningful about the likelihood of this particular ruling being reversed.
Re:How long will the ruling stand? (Score:5, Insightful)
Re:Shit man, I bet... (Score:5, Insightful)
While many here will certainly applaud this decision, I find the double-standard amazing. If we can ban sales of pictures of people having sex to minors and impose other draconian punishment, then why is obscene violence any different?
I somehow doubt the founding fathers would have equated free speech to depictions of extreme violence, though I'll undoubtedly get modded down for this.
There's certainly a case for forbidding censorship of any kind, but mixing up the values brings up crap like this.
I certainly am not happy about my freedom to criticize politicians being considered on the same level as some spotty fifteen year old kid's "right" to buy GTA.
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Even better, just look at the FCC.
Saying "Fuck" is most definitely speech; why can the FCC ban that on public radio waves?
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Saying "Fuck" is most definitely speech; why can the FCC ban that on public radio waves?
Because while you have a right to freedom of speech, you don't have a right to express yourself without restriction on publicly owned airwaves.
Re:Shit man, I bet... (Score:4, Interesting)
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You are free to negotiate a license with the FCC for a portion of the spectrum where you can say "fuck" all you like. The FCC is free to impose restrictions, within the authority granted to them by Congress, on what you can do with the spectrum they license you. What's so hard to understand about this?
If you don't like the rules, you're free to call your Congresspeople and ask to have them changed. Just remember, you'll also be up against the Ned Flanders types who call to complain every time they see a but
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Who's FORCING you to stay tuned to a station where someone's swearing?
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Public radio waves are broadcast directly into your home. You might not have a radio set to listen in, but they're there. With that mode of distribution comes a requirement to pander to the lowest common denominator of offense, as it should.
Re:Shit man, I bet... (Score:5, Insightful)
I won't get into the should kids or shouldn't kids buy various games issue. I don't think that's the real question these articles raise. The real issue is why would any politician vote for a law such as this which has already been shown time and again to be an automatic failure then waste money defending the failed law. As far as why judges strike these down, that's an interesting question so I asked a client of mine that happens to also be a judge once.
The main issue for the courts, it seems, is that it's extremely difficult, if not impossible, to tailor legislation to violence alone in the same manner as it is with pornography. This difficulty of is the real issue from what I can gather. We can say any evidence of bloodshed is obscene but then what about a safety video showing actual injury? By definition, these things are both bloody and violent yet are absolutely something minors should see before they operate certain power tools.
What it boils down to is what is considered obscene, really. Pretty much everyone (I suppose there are some few who'd disagree, thus the qualifier) agrees that nudity can be obscene, although not always. We likewise can agree that certain subject matter such as sexually explicit material are inappropriate for people under a certain age. Not everyone, however, agrees that violence, in and of itself, is necessarily obscene.
I hope this makes sense; I'm neither a lawyer nor a legal expert so I may habve mangled this somewhat.
Re:Shit man, I bet... (Score:5, Insightful)
What it boils down to is what is considered obscene...
What I want to know is where does one group of people get the right to legislate for the rest of us what is 'obscene'.
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I have appointed few. And no one of any importance at a state or federal level. Few candidates I've ever supported have won an election, largely due to the joke that is our two-party system. Even if every voice is heard, if you're not in the majority, you'll be ignored regardless of how loudly you yell.
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We likewise can agree that certain subject matter such as sexually explicit material are inappropriate for people under a certain age.
Speak for yourself. There's no factual evidence that viewing sexually explicit material is harmful to anyone under any particular age. Calling it "inappropriate" is a matter of opinion, no different from calling political or religious material "inappropriate".
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I'd like to point out that I've yet to see a study that says breast feeding causes perverts.
Comment removed (Score:4, Interesting)
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Interesting, but there are some serious flaws there. First, correlation is not causation; it seems likely that people who hold certain attitudes about sex are likely to view porn more often as a result, rather than vice versa. Second, there's no mention of how these results compare to those of adults.
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The real issue is why would any politician vote for a law such as this which has already been shown time and again to be an automatic failure then waste money defending the failed law.
Because that way, the politician can say he "did something" about the issue. When stupid angry parents write letters to the legislator, he can assure them he's working hard to protect their poor little children.
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What it boils down to is what is considered obscene, really.
Censorship is obscene.
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"If we can ban sales of pictures of people having sex to minors and impose other draconian punishment, then why is obscene violence any different?"
Religion condemns pleasure it does not control. Violence OTOH is intrinsic to the superstitions of the desert and they favor it as a tool.
Re:Shit man, I bet... (Score:4, Informative)
Re:Shit man, I bet... (Score:5, Insightful)
While many here will certainly applaud this decision, I find the double-standard amazing. If we can ban sales of pictures of people having sex to minors and impose other draconian punishment, then why is obscene violence any different?
I completely agree, and I hate the double standard myself. Personally, I do applaud this decision, and I'd similarly applaud a decision banning sales of pictures of people having sex to minors.
I somehow doubt the founding fathers would have equated free speech to depictions of extreme violence
That might be true, but it's quite irrelevant. If you think it's right that they would be able to decide what equates to free speech and what does not, what you're actually doing is advocating a state-vetted list of things you can and cannot say. That's exactly the opposite of free speech. What makes them right?
I certainly am not happy about my freedom to criticize politicians being considered on the same level as some spotty fifteen year old kid's "right" to buy GTA.
Don't think of it in those terms. It's not that they have a right to buy GTA. It's that the government doesn't have a right to stop them. That's the job of the parents of this spotty fifteen year old kid. Parents these days think that educating their kid means sending them to school and plopping them in front of the tv. Monitoring your kids, especially during the teenage years is tough, but that doesn't mean the government should do your job for you.
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Ugh...I should read my previews.
I meant to say I'd applaud a decision against the banning of pornography sales to kids. Again, if the parents care, they should be the ones to monitor their kids.
Sorry for the confusion
Re:Shit man, I bet... (Score:5, Interesting)
Re:Shit man, I bet... (Score:4, Insightful)
I don't think the GP was arguing that the lifting of the ban is bad, it's just a curious double standard. I've never understood the US (and increasingly UK) regulators' belief that violence is good and sex is bad.
In my view the bans on 'obscenity' are equally idiotic, just political pandering.
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Re:Shit man, I bet... (Score:4, Funny)
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It's kind of interesting to note that some of the most violent games targeted at young people -- 99% of them male -- are military-style games that this "violence=ok, sex=bad" government apparently has no problem with. There are people out there who think that military action games help to mentally prepare young people for actual military action in years to come. After all, they'd be less likely to pani
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I've never understood the US (and increasingly UK) regulators' belief that violence is good and sex is bad.
My guess would be the fact that we have a centuries-long history of being Puritanical conquerors.
The late great George Carlin... (Score:2, Insightful)
"I'd rather have my son watch a video of two people making love than two people trying to kill one another..."
Re:Shit man, I bet... (Score:5, Funny)
I think when the Founding Fathers wrote the Constitution, they never meant it to mean that a black guy could be president.
Re:Shit man, I bet... (Score:5, Insightful)
That is an absolutely salient observation for any time somebody parrots the line about the founding fathers. Those guys, well, they're dead. WE are the country now.
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Depends on their judicial philosophy (Score:3, Insightful)
That may be true, but there is a branch of government whose sole purpose for existing is to interpret the Founding Fathers' intention in the words of the Constitution.
That's what some judges do, depending on their judicial philosophy, [wikipedia.org] but it's by no means clear that the purpose of SCOTUS is to interpret the Founding Father's intentions.
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So stop reading ARFCOM and Stormfront.
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I think when the Founding Fathers wrote the Constitution, they never meant it to mean that a black guy could be president.
I don't laugh out loud much, but you got a big laugh out of me on that one; I hope you get modded to +5 funny. Truer words were never spoken.
Re:Shit man, I bet... (Score:5, Interesting)
And you both could not be more wrong. While many states at the time of the American Revolution relied on slavery for their economy, many of the founding fathers (especially Thomas Jefferson) sought to abolish it. They were certainly aware that blacks could be the intellectual and educational equals of whites, because they met some such people in business and from African nations.
Some of the founding fathers would be delighted at how far Mr. Obama has come, and see it as a vindication of their dreams of liberty and justice for all.
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I think if Mr. Jefferson could see what kind of presidency Mr. Obama has inherited, he would have fought to have no presidency at all.
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Yes, but equal rights for women did not seem to be important to the founding fathers either. I would like to be wrong, but do you have citations that point otherwise?
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Re:Shit man, I bet... (Score:5, Interesting)
Slavery had virtually nothing to do with race in antiquity, Aristotle considered it to be nothing more than the bottom tier of a meritocracy. The Bible spoke of slavery as a social position to be endured rather than reformed (an attitude that the South latched onto with both hands of course) with no mention of race. The Romans were probably the slavin'-est bitches around, having no qualms about putting every ethnicity they could find under the yoke, including their own. Funny how all the honkies the Romans enslaved didn't whine about being victims for centuries. Instead, when the Roman empire showed weakness they kicked the shit out of it and moved on with their lives. (Albeit into the darkest period of recorded history, but that's neither here nor there.)
All of this is important because the founding fathers were obsessed with antiquity, both directly and through the rehashing of other thinkers from the Renaissance and Enlightenment (if anybody is interested the topic is well covered in Morton White's Philosophy of the American Revolution). Anyway, point is slavery has a history before racism and is not inherently racist. Racism itself is a completely modern abstraction. Every culture on earth has some history of ethnocentrism, only through comparison and synthesis can values be assigned to decide which culture might actually deserve to feel superior. But from the inside of a culture looking out, another culture is almost invariably 'the barbarians and/or heathens'. Only in the West is there enough white guilt to have significantly mitigated that impulse. It sure as hell is alive and well in Asia. I would wager it's harder for a non-Korean to marry into a Korean family than it is for a black person to marry into a white family in the US. (Speaking from experience on the latter.)
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Oh but they can. They just diregard good science and present bullshit when it suits their interests.
Re:The Jack Thompson of Video game research (Score:5, Insightful)
Thankfully, the judges can tell the difference between good science and bullshit science. Too bad the fucking family values voters, who vote more often than people who don't have agendas to push and get politicians who pander to their votes, can't.
Fixed that for you. The politicians don't care one way or the other. If those voters got it in their heads that painting the washington monument pink would prevent violence, then we'd have serious proposals to start buying pink paint and lots of rollers.
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If those voters got it in their heads that painting the washington monument pink would prevent violence, then we'd have serious proposals to start buying pink paint and lots of rollers.
Yey another stimulus bill! Or should I call it paint industry bail-out?
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Dude, everyone has an agenda. You are naive if you believe otherwise.
I guess I was simplifying a bit there for clarity sake. The family values voters are usually much better organized than those of us who aren't opposed to family values but don't think they're doing it the best way. The coalition that wants to ban videogame sales to children because ohmigoodlord it's causing them to be violent zombies, is MUCH better organized and votes much more in the local elections (where these types of silly proposals are often pursued under the radar of many people) than those of us
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Re:What about nudity in games (Score:5, Insightful)
Exactly. We can have games in which we run around sawing people's heads off, disemboweling them, torturing them, gunning them down by the thousands - but at least we won't see their nipples!
Re:What about nudity in games (Score:5, Insightful)
There's a worse double standard here though that was struck down. Video games vs. Every other form of media. In the extreme case, what if they had tried to pass a similar law for books? Not even movies are subject to this though, there is no legal requirement for movies to be rated, or for theaters to bar children from movies. All rating and enforcement is done voluntarily by the theaters.
The double standard we have for sex and violence is a deep rooted societal issue that can't be undone with a few court rulings, but rulings like the one in the TFA can sure as hell beat back the tide of idiot legislators that try to pass this brain-dead anti-video game laws.
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Music needs to go back to being a service and an experience. That's more important than it going back to an "art." (There's more art and experimental music than ever, you're just not looking for it.)
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( http://gov.ca.gov/index.php?/press-release/1359/ [ca.gov] )