Video Games, the First Amendment, and Obscenity 229
An anonymous reader writes with an excerpt from an article about how obscenity laws and the first amendment relate to modern games:
"This question is a tough one, for the very good reason that no video game developer or publisher has ever been prosecuted for obscenity related to video games. As we have seen, if the medium of video games are held to the same standard as literature and film then, presumably, they can also be held to be obscene. One of the reasons for the lack of obscenity prosecution against video game developers and publishers is that the courts have limited obscenity to sexual content only. In fact, the courts have gone so far as to specifically reject calls to alter the definition of 'obscenity' to include violent content in video games. The other major reason is the vast majority of video games sold in the United States have only small amounts of sexual content thanks to the Electronic Software Rating Board."
Obscene (Score:4, Informative)
I can't remember off the top of my head what the case cite is, but the SCOTUS decided that each local has the choice of deciding for its self what is obscene and what is not.
For example, what might be obscene in Kentucky may be par for the course in California and so on.
"Obscenity"? (Score:5, Informative)
Do keep in mind that the legal definition is really, past all the smoke and mirrors, whatever the judge personally finds distasteful. Deciding what the population doesn't need or want to view for them has no place in a free society.
Then of course, we're not a free society.
The law often makes up legal principles (usually giving them Latin names to try to make them seem magical and justified) to override other legal principles. Obscenity is a great way to override freedom of speech by taking speech, labeling it "obscenity," and then claiming that it's "not really speech." A problem with the constitution colliding with the rights of minors and school? No problem! "En loco parentis," is right up your alley (whether you agree with the concept or not). The "community standards" excuse is, even if it is applied as per the name, is a violation of individual rights which the legal system has been more than happy to sacrifice in the name of a sort of vicious populism. Why community standards in obscenity, and not political opinion? Obscenity, political opinion, all of it is simply how one takes it. Personally, I find Nazis more distasteful than goatse, but we're not at silencing them (yet...).
This also extends into the domain of politics, where wars become "police action."
Don't think freedom means a damn thing if the government gets to play with the meaning of words, or if whatever is popular reigns over individual rights.
Re:Obscene (Score:5, Informative)
That would be Miller v. California and is know as the Miller test. For something to be considered obscene, it needs to meet 3 criteria.
1. The average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
2. the work depicts/describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law.
3. the work, taken as a whole, lacks serious literary, artistic, political or scientific value.
Re:What about Japanese imports? (Score:3, Informative)
Anyone know of any court cases involving Japanese sex games? I know they get pretty obscene..
There's been a lot of talk [current.com] and grandstanding for banning games like "RapeLay" [slate.com] but I don't think there's been a court case or decree. It's pretty difficult to get a hold of through a major outlet though. And I think Japan's version of the ESRB is passing new standards [slashdot.org] preventing the publishing of games like this. No court cases on US soil regarding this title to my knowledge. From what I've read, it seems to be the most explosively controversial title out there right now.
Re:The main reason games don't have obscene conten (Score:4, Informative)
This applies to retailers as well, the same retailer will accept the content in a movie but not in a game. It's not just chilling, it's deadly to a game.
Re:Isn't it about PUBLIC obscenity? (Score:3, Informative)
Hm. And, while we're on it, there's nothing wrong with me setting up in public and warning people about how awful homosexuals are, is there? After all, it's free speech. It's not even obscene. Oh, wait, you call that "hate" speech and have decided that "hate" is wrong, whereas "immorality" or "obscenity" is not, thus you want free obscenity and bridled hate.
That is in fact perfectly legal. The Westboro Baptist Church has become famous for doing exactly that, in contexts where it's generally considered to be in very poor taste (such as funerals for fallen soldiers). The point where it becomes illegal is when you start telling people to beat up gay people.
Re:Life, Liberty & the Pursuit of Happiness (Score:5, Informative)
Unless I'm mistaken, the Declaration of Independence has no legal standing.
Re:Isn't it about PUBLIC obscenity? (Score:4, Informative)
Hm. And, while we're on it, there's nothing wrong with me setting up in public and warning people about how awful homosexuals are, is there? After all, it's free speech. It's not even obscene. Oh, wait, you call that "hate" speech and have decided that "hate" is wrong, whereas "immorality" or "obscenity" is not, thus you want free obscenity and bridled hate.
You have failed: It's only hate speech if you say "The Queers are ruining the soil, and we should do something about them." It's still legal to say that the Queers are ruining the soil to make landing strips for Gay Martians... unless you're actually harming someone. Actually, it has to be a direct incitement to violence to even be prosecutable in most cases; a sort of vague, general "someone should do something about those damned queers" is usually not actionable, even if you find it objectionable.
Anyway, libel, defamation and slander are illegal, so if you want to put up a stand and hand out pamphlets that tell lies about fags, it's against the law. However, it's against the law for them to put up a stand and tell lies about you... under the same laws.
Re:The main reason games don't have obscene conten (Score:4, Informative)
No, it wasn't. Mass Effect was rated "M" and can be purchased just about anywhere that sells video games.
The controversy that surrounded that game alleged that there was rape and other sexual disturbing scenes, which was completely false. There exists one (1) "bed scene" that is more tame than what you see on TV.
Re:"Obscenity"? (Score:3, Informative)
http://en.wikipedia.org/wiki/I_know_it_when_I_see_it [wikipedia.org]
Re:The main reason games don't have obscene conten (Score:3, Informative)
I think this is mostly because most parents feel that their kids having sex is more likely than them becomming violent killers.
Re:The main reason games don't have obscene conten (Score:3, Informative)
And the thing is that for a disc to be recognized by a game console, it usually have to include material copyrighted by the console manufacturer, usually a picture of their logo (compared against a copy located in the firmware) and sometimes some proprietary bootstrap code, so if you're pretty much forced to have a license to be legally able to make a game running on their console.
Re:The main reason games don't have obscene conten (Score:5, Informative)
Actually the part about the proprietary bootstrap code isn't an issue as was decided in Sega v Accolade [wikipedia.org] in which Accolade reverse engineered code to load their games for the Genesis as they weren't a licensee of Sega. Basically that code wasn't covered by copyright because it was considered "non-expressive" and as such didn't get copyright protection. The issue for what the GP is talking about has to do with the cryptographic key signing that is used by the consoles. That is illegal to circumvent.
Re:The main reason games don't have obscene conten (Score:4, Informative)
There are a grand total of four possible sexual encounters. One is optional for all characters in all playthroughs (and happens or not depending on conversation responses). The last three are optional depending on which (if any) crew member you decide to romance - at most one of these will happen per playthrough. All of them are consensual and between adults.
The first doesn't show anything even remotely considered nudity, and is mostly implied. It's with an Asari (a mono-gendered, but female-looking/acting alien race) consort. It's a 'reward' for you if you don't think her gift of advice is enough for completing her sidequests.
The other three are very similar in style, and are between a male PC and a female human, a female PC and a male human, and a female or male PC and an Asari (female-looking/acting) scientist. They show, at most, mild nudity from the characters (showing rear nudity, with full nudity implied), and are indeed tamer than what you can see on network TV in most ways, and certainly tamer than some things you can see on cable TV. They also only occur after a fairly significant romance sideplot, advanced in conversations with the chosen NPC between missions, and only occur near the end of the game (which is, attempting 100% completion, a longer-than 20-hour game, and probably could not be completed in much less than 8 hours, even with skipping all non-plot related events or quests).
Topic is on Tonight on Penn & Teller with Thom (Score:2, Informative)
Re:The main reason games don't have obscene conten (Score:5, Informative)
The Japanese seem to have no trouble delivering on this...
http://en.wikipedia.org/wiki/Eroge [wikipedia.org]
Re:The main reason games don't have obscene conten (Score:3, Informative)
Actually, the problem generation is 65+.
Until two years ago, we had to wear dress shirts at work (in 95 degree weather at lunch) because of some ancient guy. The second he retired, polo shirts were finally allowed.
Sexual and racial attitudes have a very sharp line generationally currently at about the top of the baby boomer age.
Violence is a different thing-- since we grew up with it- it's cool at all age levels.
But, considering it- you do have a point, there was a ton of nudity in the 70's in films (including full frontal) that no longer happens.
Re:Isn't it about PUBLIC obscenity? (Score:2, Informative)
You thought wrong. As U.S. Attorney Mary Beth Buchanan said after putting a California couple in a cage for selling dirty pictures, "These prison sentences affirm the need to continue to protect the public from obscene, lewd, lascivious or filthy material, the production of which degrades all of us." [unreasonable.org] Obscenity laws are based on the insane notion that the mere existence of dirty pictures is harmful.
I don't much care if you merely tell me I'm wrong to do this or that. I care when you start waving guns around to enforce your idea of what's right or wrong.
Folks, it's simple: if you don't want to be offended by something you consider obscene, DON'T LOOK AT IT.
Re:The main reason games don't have obscene conten (Score:5, Informative)
I guess that openess and explanation works better than obfuscation, as always.
Re:play the game much? (Score:3, Informative)
I'm in the middle of replaying the game - my memory of it is fresher than most people's would be. If you'll notice, most of the detail is also about the occurrence of them and not detail about the sex scenes themselves. Useful stuff to know when going for 100% completion in a game.