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Censorship The Courts United States Games

Court on Video Games: Less Cleavage, More Carnage 397

Posted by Soulskill
from the mario-never-had-a-wardrobe-malfunction dept.
On Monday we discussed news of a Supreme Court ruling which held that violent video games deserved free speech protection under the First Amendment. Now, frequent Slashdot contributor Bennett Haselton writes with this followup that questions the Court's consistency in such matters. "I'm glad the Supreme Court struck down the California law against selling violent video games to minors, but reading over the decision, I had the odd feeling that the arguments by the dissenters made more sense than the majority — mainly because of the hypocrisy of continuing to ban sexuality while giving violence a pass." Read on for the rest of Bennett's thoughts.

John Landis said, "R is when you bare a woman's breast, PG is when you cut it off." That is apparently now also the law of the land regarding video games, according to the Supreme Court's June 27th decision (PDF) overturning a California law that banned sales of violent video games to minors. I'm glad the Supreme Court struck down the law, but reading over the decision, I had the odd feeling that even though I agreed with the majority's conclusion, the actual arguments made by the dissenters made more sense, primarily because of the hypocrisy of the majority in treating sex as more taboo than violence.

The majority opinion, written by Scalia, has already been widely quoted as a ringing defense of free speech:

"Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy, and restrictions upon them must survive strict scrutiny..."

But Scalia continues to believe that the government does have the right to ban the sale of nudity and sexuality to minors (as decided in the Supreme Court's 1968 Ginsberg v. New York decision), just not violence. So he kept qualifying statements like the one above by adding "except for pornography", like a judicial version of the fortune cookie "in bed" game:

"[A]s a general matter, . . . government has no power to restrict expression because of its message, its ideas, its subject matter, or its content... There are of course exceptions. These limited areas, such as obscenity... represent well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem."
...
"Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them."

So he's continuing the Supreme Court's tradition of carving out of a First Amendment exception for sex, but won't make one for gratuitous violence. I would be against banning either type of content, but if I were forced to ban one of the two, I would definitely pick violence. Wouldn't you?

As Steven Breyer wrote in his dissent:

"But what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman -- bound, gagged, tortured, and killed -- is also topless?"

Well, he's right, isn't he? Except he misses the point that perhaps the remedy is not to ban violent video games, but to overturn the precedent that photos of topless women are harmful.

Alito seemed to agree with Breyer, when he wrote in a decision joined by Roberts:

"Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws. Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces. They cry out in agony and beg for mercy... The objective of one game is to rape a mother and her daughters; in another, the goal is to rape Native American women."

(Alito was technically not dissenting, because he agreed that the current law was impermissibly vague, but filed a separate opinion because he was at pains to emphasize that he thought some future law against violent video games might be constitutional.) The implication seems clear: "If we can ban some things for minors — like pornography — then good God, can't we ban this stuff too?"

Scalia, in his majority opinion, responds to Alito's description of game violence: "Justice Alito recounts all these disgusting video games in order to disgust us — but disgust is not a valid basis for restricting expression." But this is just hypocritical — because Scalia, throughout his own decision, kept deferring to the Ginsberg Supreme Court ruling, which said that the government could ban porn sales to minors if it depicted sex acts in way that the "average person" would consider "patently offensive with respect to what is suitable for minors" (along with some other criteria). In other words, if it causes disgust.

Breyer and Alito also made similar arguments to each other on another reasonable-sounding point — that industry self-regulation might not last long, now that the law has been struck down. As Alito wrote:

"The Court does not mention the fact that the industry adopted this system in response to the threat of federal regulation, Brief for Activision Blizzard, Inc., as Amicus Curiae 7-10, a threat that the Court's opinion may now be seen as largely eliminating. Nor does the Court acknowledge that compliance with this system at the time of the enactment of the California law left much to be desired — or that future enforcement may decline if the video-game industry perceives that any threat of government regulation has vanished."

Breyer agreed:

"And the industry could easily revert back to the substantial noncompliance that existed in 2004, particularly after today's broad ruling reduces the industry's incentive to police itself."

This sounds more realistic than Scalia's recitation of the video game industry party line:

"The video-game industry has in place a voluntary rating system designed to inform consumers about the content of games... This system does much to ensure that minors cannot purchase seriously violent games on their own, and that parents who care about the matter can readily evaluate the games their children bring home."

What do you want to bet that Breyer and Alito are right, and enforcement of the rating system will decline now?

Compare this with another case, when Communications Decency Act of 1996 (essentially banning the "seven dirty words" on the Internet) was struck down in 1997 at least in part because a "less restrictive means" existed for censoring content in the home — parental blocking software. I didn't like blocking software much, but as a statement of fact, it existed, and was a less restrictive means than the law. The crucial difference there was that parents who used blocking software, weren't using it in response to a government threat of legislation, they were using it because they wanted to, and didn't stop using it after the law was struck down. There's no reason to think the same is true for industry self-applied video game ratings.

Finally, Breyer (but not Alito) rejected the argument that the California law should be struck down for vagueness, arguing that it was no more vague than laws against selling pornography minors, which the court had upheld:

"Comparing the language of California's statute (set forth supra, at 1-2) with the language of New York's statute (set forth immediately above), it is difficult to find any vagueness-related difference. Why are the words "kill," "maim," and "dismember" any more difficult to understand than the word "nudity?" ... California only departed from the Miller formulation [the Supreme Court case that defined obscenity] in two significant respects: It substituted the word "deviant" for the words "prurient" and "shameful," and it three times added the words "for minors." The word "deviant" differs from "prurient" and "shameful," but it would seem no less suited to defining and narrowing the reach of the statute."

Well, I think he's right. They're all just words, and they don't have crystal clear boundaries, but you pretty much know what they mean, and there's no reason why one group of words is more vague than the other. (In fact, in a 2008 article I argued that you could measure scientifically the vagueness of a law — just show the law to different test subjects, along with some made-up scenarios, and ask whether those scenarios violated the law or not. I'm quite confident that if you applied that test to these two different laws, you would measure about the same level of "vagueness".)

Again, I don't accept the justices' premise that the government has any business banning the sale of either sexual or violent content. But if you're going to grant the premise that they can and should, then Alito and/or Breyer seem to have made better arguments than the majority on at least those three points: That violence probably deserves less constitutional protection than sex, that the industry isn't likely to keep regulating itself if they no longer think they have to, and there's no reason that "kill" and "maim" are any more vague than "nudity".

(By the way, when I say the "dissenters sounded more reasonable", I am not including Clarence Thomas, whose entire solo dissent was devoted to research showing that the Founding Fathers did not believe people under 18 had First Amendment rights at all. If Clarence Thomas thought really hard, could he think of any other category of people who were denied full civil rights in the 1700s, and hence why we wouldn't want to apply that standard today?)

Fortunately, the majority did get the most important point right, which is that studies do not show a causal relationship between video game playing and real-life acts of violence. As Scalia wrote:

"The State's evidence is not compelling. California relies primarily on the research of Dr. Craig Anderson and a few other research psychologists whose studies purport to show a connection between exposure to violent video games and harmful effects on children. These studies have been rejected by every court to consider them, and with good reason: They do not prove that violent video games cause minors to act aggressively (which would at least be a beginning). Instead, "[n]early all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology." Video Software Dealers Assn. 556 F. 3d, at 964. They show at best some correlation between exposure to violent entertainment and minuscule real-world effects, such as children's feeling more aggressive or making louder noises in the few minutes after playing a violent game than after playing a nonviolent game."

Unfortunately, Scalia lacked the nerve to say that this point should have been the only point that mattered, in a society where freedom is the default unless there's a good reason to the contrary. Because the logical consequence of that, would have been that since the "evidence" for the harmful effects of pornography is even weaker, then the government has no business banning that, either.

The problem constraining all nine justices is that they felt bound by the prior Ginsberg ruling making it permissible to ban sales of pornography to minors, so their options were limited to (a) striking down the video game law while ignoring the hypocrisy of continuing to ban pornography, or (b) pointing out that violent video games are probably at least as distasteful. This ignores the possibility that they could have just (c) overturned their prior ruling, as they have done many times before.

If I were a justice writing for the majority, my whole opinion would be:

Well, we can only make an exception to the First Amendment if there's solid evidence of real harm, and there is no scientifically valid evidence of harm here, so the law violates the First Amendment and is struck down. Oh, and that goes for Ginsberg too, next time it comes up. How much did you guys pay for law school again?

Unfortunately, Obama has said that he's looking for Supreme Court candidates that display "empathy", and what I said would probably hurt the other justices' feelings, so don't hold your breath for my being nominated.

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Court on Video Games: Less Cleavage, More Carnage

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  • Sex is taboo, violence and carnage is great, I guess they never watch TV in America?
    • Don't you know, a woman's body is dirty to most of these objectors?

      Genuinely America, sort yourselves out, this is some third world behaviour here.

      • by Skarecrow77 (1714214) on Friday July 01, 2011 @12:44PM (#36634948)

        It will sort itself out.

        America is still, to this day, trying to shake off centuries of puritan tradition. But we're doing it. Each generation is a bit more socially sane than the last one.

        we gave all colors of skin and then both sexes the right to vote. we then struck down institutionalized racism (as much as possible) and followed up by changing social attitudes towards race (Again, as much as possible. it's a slow process, gotta wait for old racists to die off). We are slowly giving people of all sexual orientations the right to legally marry anybody they so choose, and while we're at it we're slowly allowing people to legally fuck in any way they so choose as long as it's consentual (you'd be amazed at what's still on the books out there). Talks are in progress about how we, as a society, can make sure as few people are fucked over by health care as possible, while at the same time -finally- opening up discussions on how to decriminalize posession and use of recreational drugs while assisting addicts with recovery instead of imprisoning them.

        Example. it's a sign of progress that when a year or two ago some southern judge refused to issue a marriage license a white woman and a black man, it is viewed with outrage across the country instead of "why is this news". We're working on changing things, we're working on it.

        I'm sure that my grandchildren will look at me and say "you guys were still doing WHAT to -insert social group here- in your day? Wow what were you thinking?" and they'll probably be right.

        • Re: (Score:3, Interesting)

          by ViableDreams (1753312)

          Yes, but it's a long, slow process. Not helped along when some of those "social groups" seem to just not get it (refer also to California's prop 8 vote).

          FTA: "[...]Clarence Thomas, whose entire solo dissent was devoted to research showing that the Founding Fathers did not believe people under 18 had First Amendment rights at all. If Clarence Thomas thought really hard, could he think of any other category of people who were denied full civil rights in the 1700s, and hence why we wouldn't want to apply that

        • by betterunixthanunix (980855) on Friday July 01, 2011 @01:12PM (#36635316)

          we then struck down institutionalized racism

          No we didn't; we just hide it better now. In black communities in America, it is common for 1 out of every 5 men to be imprisoned -- in some cases, the proportion is as high as 1 out of every 3. That is right now, in 2011.

          opening up discussions on how to decriminalize posession and use of recreational drugs

          We have opened up talks about how to decriminalize possession of one particular drug, marijuana. During the past year, at least five drugs were made illegal without any congressional action at all -- the DEA simply declared the drugs to be illegal (they are required to go through a formal scheduling process by the end of this year to keep the drugs illegal). We are nowhere near the end of the war on drugs; in fact, it is intensifying.

          I'm sure that my grandchildren will look at me and say "you guys were still doing WHAT to -insert social group here- in your day? Wow what were you thinking?" and they'll probably be right.

          More likely, they'll say, "You were allowed to speak out against the police back then?!"

          • by Skarecrow77 (1714214) on Friday July 01, 2011 @01:32PM (#36635614)

            we then struck down institutionalized racism

            No we didn't; we just hide it better now. In black communities in America, it is common for 1 out of every 5 men to be imprisoned -- in some cases, the proportion is as high as 1 out of every 3. That is right now, in 2011.

            Are you entirely sure that is due to hidden racism, and not at all to do with a self-perpetuating "racial" (more self-enforced social grouping in my experience) culture of gang-related crime-glorified peer pressure, music, and environment?

            Or are you suggestion a bunch of racist good ole boys sat around one day saying "Well, we can't hang the black man no more, so we'll give him some rap music talking about 'OG', distribute some blue and red bandanas, and they'll give us every excuse in the world to lock them up and legally beat the shit out of them"? I'm really not sure that's the way it worked.

            Anecdotally, I know way more than 5 black men, and not a single one to my knowledge has ever been to prison. My friends are the exceptions? Granted, they were suburban kids, not urban ones. Racism only exists in the cities?

            • by betterunixthanunix (980855) on Friday July 01, 2011 @01:40PM (#36635732)
              Actually, it is mainly because of the war on drugs -- black men are routinely arrested for selling and possessing marijuana, cocaine, and PCP. It is true that white people could also theoretically be targeted, but the enforcement tends to be heavier in black areas, and the penalty for crack (which is the popular form of cocaine in black communities) is much higher than the penalty for powder cocaine.

              As for the racist motivations of the war on drugs, that is a historical fact. Congress was told that marijuana caused white women to want to have sex with black men. Congress was told that black men who used cocaine became lunatics, with improved accuracy with a pistol and a desire to rape white women. Congress was told that crack cocaine was a black man's drug.

              As for your suburban friends, they are indeed an exception; the dozen or so black men you know do not constitute a statistically significant sample.
              • by Skarecrow77 (1714214) on Friday July 01, 2011 @01:56PM (#36635870)

                Well in retrospect, those arguments sound ridiculous, so with our slow social sanity improvements, hopefully we can see some of them rectified in our lifetime.

                As for enforcement, I would argue that's probably a crime density issue. There are just places where drug transactions take place, and due to the illegal nature of drugs, a lot of other types of crime seem to show up as well. My wife tells me that in her youth, the the town two or three towns over from her was well known for it's drug trade, and if you were a "white kid" there after dark, the cops knew that you were there to buy drugs, which as it turns out was generally true. They were patrolling the areas of known crime, and surprise surprise, they found crime.

                I think what you're missing here is a matter of racial inequality that may not necessarily be indicative of racism. Densely packed areas of poverty stricken, poorly educated, people tend to be boilerpots for crime. That seems to be true almost no matter what "race" we're talking about. The problem here is that due to past racism, certain social groups tend to be stuck in these self-perpetuating hellholes. it isn't that these young black men aren't committing crimes, it's that they're stuck in a situation that encourages it. THAT is the problem. there aren't magical racists behind the scenes keeping them down. They really are doing this stuff. The key is to figure out a way to break the cycle, not complain that they're locked up.

                Look at the worst examples of trailer parks, and you going to see the same thing. it just isn't as glorified in the media because no rap singers are talking about their doublewide and popping a cap in their neighbor's lawn flamingo. You can be sure the cops are there on a regular basis however. Crime.

          • by istartedi (132515)

            we then struck down institutionalized racism

            No we didn't; we just hide it better now

            Actually, we exchanged one form of institutional racism for another. [wikipedia.org]. IMHO, a true lack of institutional racism would be defined by no mention of race in law or policy, except to prohibit discrimination on that basis. A true lack of racism would be basing hiring decisions strictly on merit. The counter-argument is that you need to promote historicly oppressed peoples, and the counter-argument to that is that by promoti

            • continue it, but base it on income, not race

              the real reason for the economic disparity between whites and blacks in the usa is because of economics, and that IS a historical hangover from institutional, governmental, and ad hoc societal favoritism towards WHITES since, well, since before this country was founded

              in fact, affirmative action should exist forever, but again, based on income, not race. there is no reason why a rich black son should get preferential treatment over a poor white son, but there IS a reason for a poor child, of any race, to get preferential treatment over a rich child, of any race

              simply because without the counteracting force of government policy, nepotism and cronyism will inevitably concentrate power and wealth with a few. governmental policy HAS to counteract this, in any society, for all time. or injustice, based on economic class, inevitably develops

              a true meritocracy is NOT the default status of human society. money INEVITABLY concentrates power, which leads to cronyism and nepotism: the useless son of the rich guy getting the good high ranking job, rather than the guy who busted his ass for 20 years in the company and who really deserves

              therefore, society MUST counteract nepotism and croyism and favoritism based on class, wealth, and family connections by promoting poor but brilliant children to the front of the line, forever. the free market does not sovle this problem, it CREATES this problem

              a free market will DESTROY a true meritocracy based society because of cronyism and nepotism

              that is, belief in a self-regulating society, and belief in a meritocracy, are mutually exclusive beliefs. to believe in meritocracy, you must believe in government regulation and programs LIKE affirmative action (but not EXACTLY like affirmative action), and you must understand that a self-regulating society will inevitbly lead to a regimented stratified calss based society where power and wealth concentrate with a few: money attracts more money, and that's the way it's always been. a just society MUST constantly counteract this natural gravity

        • by arth1 (260657)

          America is still, to this day, trying to shake off centuries of puritan tradition. But we're doing it. Each generation is a bit more socially sane than the last one.

          Really? From what I can tell, the United States has become far more puritan over the years since the liberal 60s.

          Something is seriously wrong when people consider nudity obscene, but goring someone isn't.

      • by claytongulick (725397) on Friday July 01, 2011 @01:49PM (#36635818) Homepage

        I live in Texas, where it is not abnormal for people to go to church on Sunday hung over from the night at the strip club on Saturday.

        In Dallas, we have some of the best and most famous strip clubs in the world, and we also have more churches per capita that most other areas.

        Is this hypocrisy? Undoubtedly. However, I think there's are major cultural undercurrents that the rest of the world, and in the case of Texas, the rest of the country misses. I've lived all over the US, and interestingly (to me) I've found Texas to be the least judgmental and most accepting of any place I've lived, including many "liberal" places like California (San Diego) and Oregon (Portland).

        This probably challenges a lot of closely held beliefs by a lot of people in the US and around the world, and I get that. But the fact is, I live in a "conservative" small town in Texas, and when I'm done work today I'm going to go have a beer at the local red-neck bar, a cool little place that is filled with simple folks, has Big Buck Hunter tournaments, and plays country/western non-stop. A bar that's owned by an amazing lesbian couple, and had a flamboyantly gay cook for years. And everyone in my town loves the place, the owners and the cook.

        A lot of folks (as I was, at first) are really put off by this kind of hypocrisy. Why not just loosen up, and drop the pretense? Why pretend to be a good, church-going Christian, when you have no problem dropping a grand in a strip club, or doing all kinds of other wild things?

        What I've come to realize, after living in Texas for several years, is that it is all about manners. In Texas, we don't like to offend folks, we keep our private business private, and it is no one's business what happens behind closed doors. I think the perceived hypocrisy of the porn v/s guns debate has a lot to do with this mentality, and I think this is a sentiment that shared (to various degrees) around the US.

        Folks here don't want personal business put out in public, and nudity is considered very personal business here. Guns, however aren't at all. One of our favorite pastimes is going to the shooting range, or out to the ranch, and putting a couple hundred rounds into targets.

        Many around the world are mystified by this kind of mentality, and I understand that - it's a huge cultural difference, but the thing that's important to realize is that while it is very different here, it isn't bad. In fact, Texas is the most amazing place I've lived in my life. I love it here, I love the people here, and I've learned a lot about being a gentleman and proper manners since I've moved here - things that really don't get much attention in some other parts of the US (like where I grew up).

        It is easy to point a finger and criticize us, when you don't have any understanding of our culture, and from an outside perspective, it must seem confusing. But honestly, would you do the same thing to monks in Tibet? Or tribes in Africa? No, you'd respect that they have a vastly different culture - one that works for them, and you'd respect that (most likely).

        I would request the same consideration from you and others for the US (and from others in the US for Texas). The reason I think it is so hard for people to do this is because (on the surface) western cultures are so similar. It is easy for us to look at Native Americans and identify the vast cultural differences, but not quite so much with Europe/US. It is important to realize, however, that those differences really are there, and the cultural gap is just as vast.

        For those who are interested in learning a little bit more (good and bad) about how things work in Texas, I recommend the movie "The Best Little Whorehouse In Texas". Aside from being a great movie, it is based on real events, and (in my experience) is pretty spot on with the way people are in Texas. I can't speak to several other of the "conservative" states, because I haven't lived in them all, but I suspect that they have pretty similar attitudes (though I know there are some extreme exceptions).

    • by s73v3r (963317)

      Keep in mind, a lot of us also object to the banning of nudity as well. It just happens that this was concentrated on violence.

      And if I recall correctly, the similar Indiana law, which also was struck down, was on both violence and nudity.

    • Sex is taboo, violence and carnage is great, I guess they never watch TV in America?

      One point that is often overlooked is "Which is more likely: that your son or daughter will engage in sex or violence?"

      I think most people who want more censorship aren't opposed to -sex-, they're opposed to their children having it. They know their children are going through puberty and know that having a sex drive is normal, whereas committing murder is less likely. They might think that depictions of sex will make their children more likely to have sex, whereas depictions of violence will probably n

    • by NoZart (961808) on Friday July 01, 2011 @02:38PM (#36636296)

      Because people having sex spend way less money than people waging wars.

  • by Anonymous Coward on Friday July 01, 2011 @12:24PM (#36634726)
    Perhaps it's because Americans are violent but not sexy?
    • I see you haven't been to California. We may have the worst politics this side of the Prime Meridian, but spend a day on the white sands of Longbeach or Santa Monica and you will be ashamed your local girls don't look as good in a bikini. And if you think that's great, wait until you get a couple of them into bed (and yes, most Cali girls do swing that way). The golden coast still has a thing or two goin' for it..

      ;)
      • We may have the worst politics this side of the Prime Meridian, but spend a day on the white sands of Longbeach or Santa Monica and you will be ashamed your local girls don't look as good in a bikini.

        Not really. Fake tits are highly overrated.

  • by milbournosphere (1273186) on Friday July 01, 2011 @12:26PM (#36634756)
    And it all started with the Hays codes in the 1930s. Get your religion-based censorship out of my TV and radio broadcasts already.
    • by quacking duck (607555) on Friday July 01, 2011 @12:54PM (#36635060)

      John Stewart made a (very graphic) point with a Mortal Kombat scene where two burly guys can grab a female opponent by the legs and violently rip her in half from the crotch on up, blood flying everywhere, and that was supposedly fine, but if there was even a bit of a pixelated "nip slip" it would be banned.

      America's media masters have a very fucking twisted sense of what's "acceptable" and what's not.

      • The media is only responding to what a large portion of the populace demands.

      • How can the designers of Mortal Kombat justify ripping Sonya in half like that? What was the goddamn point? To prove that they could? To take it to the extreme? That disgusted me. That flat-out disgusted me. I see John's point in playing that. Whatever line there was, the designers of MK stepped over it with that Fatality

        I'm all for freedom of speech. I don't see what the point of that Fatality was. Who are we appeasing there, sadists? Do we really have that many sadists in the marketing demographic for t

        • I think I heard a "whoosh" sound over my head, but when I looked up, I couldn't see whatever it was. If you were making a joke that I missed, disregard the response below, I'm answering as if you were serious.

          I'm all for freedom of speech.

          Everybody says that. Few people are, and you aren't one of them.

          I don't see what the point of that Fatality was.

          That's not relevant, and thinking that it is relevant is why you're not for freedom of speech. It's easy to be in favor of speech you approve of, the test is whether you think people should have the right of speech to things that utter

          • LateArthurDent, thank you for your calm, and insightful post. I appreciate it.

            Unfortunately there was no WHOOSH, my post was entirely serious and emotionally-based. You bring up valid, logical points. You are right: after some retrospection, I must conclude that I am not for free speech, I am for free speech with restrictions, based on my emotional outburst. You are also right that that I don't have the right to stop people from engaging in free speech.

            In addition, you're right that the proper response is to tell parents and everyone else that doesn't like it that they need to supervise their children, and ensure they don't play the game.

            LateArthurDent, your entire response is logical. To me, from a logical, rational viewpoint, it's a pitch-perfect explanation. The problem is that although I recognize and admit your logic is correct and your defense is rationally, emotionally, I don't care and I don't want to be logical about this because my emotional response is too strong. And given time to think about it and consider the logical, rational response you have given, I find that I still do not want to give any recognition to the logical, rational response and defense presented. I am that offended by what MK did. And herein is the problem that I was trying (albeit imperfectly) to point out in my OP.

            Please understand, I recognize and appreciate your response. I am telling you that I am so offended by what MK did that even though I recognize the validity of your defense, I'm actively, purposely choosing to ignore it because my beliefs and my emotional well-being were violated by witnessing that. I'm pretty sure there's a couple million more people like me who would say the same thing: agree with your defense, don't care anyway.

            To me, the flaw in your argument is that you argue presuming the Constitution and the Free Speech Amendment are sacrosanct. What I believe you are forgetting is that We The People do not serve the Constitution, The Constitution serves us. We, The People, are the ultimate authority in our land. The Constitution is just the rulebook that we all agree to play by, and the Government is the apparatus we create and elect to be our referee. You must therefore understand that if a substantial supermajority or even majority of people get ticked off about something, they have the right to make it Law, and not only that, but Constitutionally-appropriate Law. And if you get enough people ticked off enough to create a social-paradigm change, then suddenly that immutable logically correct Principle which underlays the First Amendment doesn't look so immutable. The First Amendment is only as strong as the social consensus behind it is. Get enough people ticked off, and you'll see some Constitutionally, People-approved limits placed on it.

            This is why I'm demanding to know what the hell the MK designers were thinking. That Fatality offended me on a deep, visceral level, to a degree strong enough that I don't give a flying fuck about what Logic and Reason say I should be responding. I want a damn good explanation/justification for why that was created. And if there isn't one, then I will find myself saying "Fuck the First Amendment, Fuck Reason, Fuck Logic, I want that shit canned and those designers fired because that was Blasphemy to me".

      • by interkin3tic (1469267) on Friday July 01, 2011 @01:52PM (#36635846)

        America's media masters have a very fucking twisted sense of what's "acceptable" and what's not.

        Their definition of what's "acceptable" is "what can we show that will sell well and won't get us into trouble with the ridiculous puritan groups."

        It's not suits in a corporate boardroom at Konami that are deciding sex is bad but ultraviolence good. That's decided by small groups of obsessed, socially conservative, religious people with too much time and money on their hands. The parents television council [wikipedia.org] got in a tizzy because of the SNL sketch "dick in a box." The media research center [wikipedia.org] whose mission is to prove that there is a "liberal bias" in media, pitched a fit about a female nipple being revealed at the superbowl. Jerry Fallwell was the one getting upset about a purple teletubby with a triangle on his head.

        Fortunately, those morons are literally dying off.

  • by Anonymous Coward on Friday July 01, 2011 @12:28PM (#36634778)

    I thought a major part of the decision was that other forms of entertainment are not similarly restricted. Violence in films and TV are not subject to the same sort of law, and the decision was based on that discrepancy in the restriction of speech. However, those forms of media are restricted when it comes to sexual content, so a similar restriction can be applied to video games. This is of course separate from whether or not it *should* be applied to any of them. Isn't that the job of parenting?

    Anyway, it seems as though the court was trying to just align the law with current precedent, and clarify that video games are speech like other formats, instead of getting into a major brouhaha over the issue restricting sexual content in any media which is outside of the scope of this case.

  • by Hatta (162192) on Friday July 01, 2011 @12:29PM (#36634786) Journal

    There is no obscenity exemption in the Constitution. I've looked. The Supreme Court invented the obscenity exemption. Only Congress is supposed to have the power to create law, and they may only modify the Constitution after ratification by the states. The Miller test hasn't passed any of these hurdles so it is quite plainly unconstitutional.

    This is an absolutely crystal clear case of activist judges legislating from the bench.

    • by paiute (550198) on Friday July 01, 2011 @12:44PM (#36634944)

      This is an absolutely crystal clear case of activist judges legislating from the bench.

      Silly rabbi - only liberal judges can be activist.

    • Agree. Not only that this supreme court has in my opinion contradicted a precedent set by 1973's Miller v. California and Scalia's comments are a feeble attempt at reconciling the outcome of this case with that of Miller.

      The problem being that the Miller case dealt with pornography and not obscenities in general.

      The other mind boggling part of this judgement is that this isn't really about censorship. It's about restricting the sale of questionable materials to minors.

    • by s73v3r (963317)

      The SCOTUS is charged with interpreting the law. The First Amendment has been found to not hold with obscene material, and the Miller Test was devised to help determine whether a piece of media is obscene, or if it is protected expression.

      The Constitution is not set in stone; and given that we don't have the people around who wrote it, we need to interpret it to the standards of the day. There was no Constitutional protection against the government retrieving emails from a server, but it was later held that

      • The Constitution is not set in stone; and given that we don't have the people around who wrote it, we need to interpret it to the standards of the day.

        Some of the wordings in the constitution are basically set in stone. For instance, pretending that there exists exemptions in the constitution where there is not and calling it "interpretation" could probably be considered wrong. They interpret it, and their interpretations can be wrong.

      • Re: (Score:2, Interesting)

        by Anonymous Coward

        But the first amendment pretty much explicitely says "$FOOBAR is OK, period". If SCOTUS then goes and says "$FOOBAR is only OK under certain circumstances", that's not "interpreting the law", it's going against what the constitution quite plainly says. "Congress shall make no law abridging the freedom of speech" is clear the way it's written.

        It's true that the world is changing and that the founding father's didn't anticipate and couldn't have anticipated everything. And it's true that while they wrote the

    • by Xtifr (1323) on Friday July 01, 2011 @01:01PM (#36635152) Homepage

      The Constitution also has no exceptions to the freedom of religion thing, yet we seem to feel free to ban human sacrifice, slavery, polygamy, and spousal abuse, no matter how sincere the religious feelings behind them may be. Damn activist judges suggesting that rules against murder trump the Constitution! :)

      • I don't care how sincerely you hold crazy religious beliefs, if those beliefs harm other people they should be illegal. Religion should not be a "get out of jail free" card. The reason you should be free to practise and believe whatever religions you want is NOT that religion deserves special protection, but that ALL beliefs should be protected as part of your right to freedom of expression and thought. No actions, no matter how they are motivated, that harm people should be legal.

        • by Xtifr (1323) on Friday July 01, 2011 @02:56PM (#36636444) Homepage

          Yes, exactly, but "harm to others" is exactly the argument that was used to justify anti-obscenity laws. Now you may disagree that obscenity causes harm (I pretty much disagree), but that was the reasoning that was used. So merely shouting that there's no Constitutional basis for anti-obscenity laws, as the original poster did, is silly. The Constitutional basis is that freedom of speech (like freedom of religion) isn't a free pass to harm others (see also: slander and libel laws). If you want to overturn anti-obscenity laws, you will need to prove that obscenity doesn't hurt people, because the current accepted theory in law is that it does.

    • by spectro (80839)

      My thoughts exactly. Sadly our Supreme Court has a history of wiping their asses with the constitution. If they have done their jobs, slavery and racial discrimination would have never happened.

      Supreme Court judges can be impeached, but that is very unlikely to ever happen.

    • This is an absolutely crystal clear case of activist judges legislating from the bench.

      ... with the full support of the legislation and the public. Don't kid yourself - if the Miller test wouldn't exist, laws would have been put into place to mimic it. As a matter of fact, your activist judges legislating from the bench are the ones currently preventing worse laws from being written by legislators.

      Finally, this entire idea of legislating from the bench being illegal is complete nonsense: with the way that the US legal system works, every time a judge or a jury makes a decision, it sets a lega

  • Stunning hypocrisy by supposed "adults". It's a symptom of the garbage they grew up with, though.

    America really needs a cultural shift so that everyone is taught that:

    1) Violence is bad.
    &
    2) Sex is good.

    A good starting point for all this is to vilify the right-wing Christian culture that preaches violence over sex. America doesn't need a religion from the middle-east in its land. There are plenty of Native American religions one can choose from, both violent and non-violent, should anyone feels the ne

    • Violence is not bad; it is the solution to most problems, and in fact the only solution to all problems caused by violence.

      People need to learn to use the threat of violence effectively. Properly, I guess; but that's a lost cause, based in personal philosophy. Fortunately, the threat of violence is strangely powerful: if being a violent asshole is likely to end badly for you, then you will probably be disinclined from being a violent asshole.

      That's why we should have strong personal self defense values

    • A good starting point for all this is to vilify the right-wing Christian culture that preaches violence over sex

      And a good starting point seems to be building a strawman that exists in about 0.01% of culture that claims to be christian.

      Kudos for getting the ball rolling.

  • by fantomas (94850) on Friday July 01, 2011 @12:32PM (#36634808)

    American citizens have a long and well publicised record of being shocked and upset by seeing the human body, while being more relaxed about exposing their children to acts of simulated violence. Guns ok, bare bodies not ok.

    When Janet Jackson showed a nipple in a show on prime time tv at the superbowl, the USA took to the streets and threatened to riot for this shameful behaviour that would damage their kids for life. Over in Europe, people laughed: you can see posters of half naked people on billboards selling perfume and the like on the way to the shops, no big deal. Sometimes models are completely naked in posters [adland.tv]. Europeans are more worried about exposing their children to violence.

    Different places, different cultures. Violence is ok in the USA, sex is ok in Europe. You take your choice and live where you feel comfortable I suppose...

    • by berashith (222128)

      I dont remember the country taking to the streets to riot. I think the streets were empty as everyone was busy hitting replay on their tivos.

    • That's because American's are more sexy than Europeans as portrayed by the media. I mean, have you seen naked Europeans before? Either they look emaciated on the catwalk, or full of cellulite with hair under their arms. It's major cultural difference. Lustful imagery in America can foster subconscious violent thoughts of conquest. Fight for the "prize" (mating rights) amongst the competition.

      I guess you could say; in America, sexuality leads to violence.

    • by tverbeek (457094)

      It isn't just the US. There's a current case in Canada in which customs arrested someone for having comicbook images on his laptop which (in the opinion of the agent) depicted illegal sexual activity. They don't arrest people or seize books for depicting fictional illegal violence, however.

    • The model in the link was naked, but I sure as heck don't consider that nudity.

      Maybe the print ads showed more, or the image was photoshopped, but you can barely see the profile of a nipple, which movies and TV have no problem with showing through an actress' blouse and/or bra--I've heard they even sometimes apply an ice cube on them right before a shoot, just so they stand out.

      And for that, the morons at US-based Paypal froze that website's donation account. One more reason I've never had an account with t

    • by Kjella (173770)

      For a fun fact, this shoe advertisement (NSFW) [tv2.no] was found illegal, not for being visible to children despite being a 24m^2 poster at the mall but because they found it to be objectifying women. That said we do have a fairly strict barrier between nudity and sex, the sex magazines are by law on the top shelf and covered so you can't see much from below. Of course, that doesn't stop the Internet but that's a different story...

    • Different places, different cultures. Violence is ok in the USA, sex is ok in Europe. You take your choice and live where you feel comfortable I suppose...

      Europe being the -only- non-american example you could think up? Don't get me wrong, we have some stupid hangups about sex, but compare us to, say, Saudi Arabia and we look like sluts. I hear Bollywood movies won't show lip-to-lip kissing on their movies. It's all relative. Europe today seems pretty uptight compared to the roman orgies.

  • life goals (Score:5, Insightful)

    by Ephemeriis (315124) on Friday July 01, 2011 @12:38PM (#36634872)

    I used to work at EB, and I always thought it was sadly funny when some parent would get offended at some very crude/pixelated nudity... But be perfectly OK with wholesale slaughter.

    Seriously.

    Most people, at some point in their lives, see a naked body. Most people have sex. That's generally considered to be a good thing. Aren't parents stereotypically bugging their children for grandkids after they get married?

    Most people, on the other hand, try to avoid getting dismembered with a chainsaw.

    And yet... According to the way we rate our media... Chainsaw dismemberment is apparently more acceptable.

    • by berashith (222128)

      once upon a time... I was playing EQ and we were in a language group, where various races would choose to speak in a language no one else knew, and the more that the characters heard this ( displayed as gibberish on the screen ) , the higher their understanding, until eventually "fluency" was achieved. One of the people in the group chose to spam the group with a joke " the only problem i have with sex on tv is losing my balance and falling to the floor". Another member of the group hit the roof as he began

  • The answer is in the Old Testament. All over it. Killing=good, sex=evil. Just be killing the right people.

    Since both the government AND the supreme court is in hands of religious people, this sets USA on par with Iran as teocracy.

    • Have you actually read the old testament? The very first commandment that God gives to the world is "be fruitful and multiply."
      • by SharpFang (651121)

        That was before that Apple burt? Or wasn't the apple commandment the first one? Anyway, it seems he changed his mind sometime around Noah, and after the second massive incestfest (first with Adam and Eve's children) it was pretty much established who has the right to kill and who should be the ones killed and then the killing commenced. Exodus especially shows that commandments were less of a law and more like a guidelines, and killing non-Israelis was most welcome...

        • Yes, the first commandment God gives is "Be fruitful and multiply," in Genesis 1:28. The commandment not to eat from the tree of knowledge is given in Genesis 2:17. Additionally, after Noah and his family emerged from the ark, God commands them once again to be fruitful and multiply, Genesis 9:1.

          Now, this is not to say that the old testament condones all kinds of sex. It certainly forbids incest (interesting how theologians reconcile this with the fact that after the creation there must have been a lo
        • Anyway, it seems he changed his mind sometime around Noah

          Yes, when solomon speaks of the beauty of his wife's breasts in "song of solomon", clearly the language is symbolic and hes not talking about sex at all.

          it was pretty much established who has the right to kill and who should be the ones killed and then the killing commenced.

          If one accepts the premise that there is a creator, and that there were certain people who violated his commands, and that said creator was enacting judgement on them, it begins to make sense to understand why the israelites were commanded to begin their conquest. I do not recall however any time where it was established that "you may always kill these gro

  • by Xtifr (1323) on Friday July 01, 2011 @12:51PM (#36635016) Homepage

    No matter what you think about sex vs violence, that isn't what this case was about. This case was about whether there should be special rules for video games! If California had simply passed a law against selling depictions of gratuitous violence to children, that would have been a whole different matter (and an unlikely law in the land of Hollywood). Do we really need special, separate rules for each new medium? I don't think so. Consistency is the thing! The Supremes considered the question of whether video games needed separate rules, and concluded that there was no evidence they did. If you don't like violence in media, petition for a ban on violence in media, not violence in video games!

  • Just because the old people in the Supreme Court declare "violence is okay; sex is bad" does not mean other judges have to obey.

    These state and local judges are free to reach their own conclusions and, if they wish, allow sex and nudity in contexts the SC claims is forbidden. (Like not punishing a Utah bookstore for selling issues of playboy.)

    • Thats not actually what the judges said. Several of them lamented the double standard; Thomas indicated that his agreement with the law was based on the idea that parents should have control of what their children take in, which he grounded on the framework that the founders would have had (which I dont think is an unreasonable way to approach the question of "What were they trying to say in the Constitution").

      I didnt see any of them arguing the line that the state must censor-- in fact the ruling was that

  • Because people's bodies are so much less offensive when they are being riddled with bullets or exploding, versus just being viewed.

  • It was a pleasant surprise to see a large and articulated text instead of the usual summary.
  • Which is most likely to cause a responsive change in the viewer: watching violence, or watching sex/nudity?
    We've had article after article on here about how violent video games are not shown to produce violent individuals.
    I know Slashdot isn't exactly a bastion of Christian ideals, but surely you can understand that people who hold sex to be sacred don't want their children to be exposed to it in a disrespectful or objectifying context. Images of nudity are often burned into an individual's mind; that's
    • by TheCarp (96830)

      Good, then they can police their own children and not foist that responsibility off on the rest of society to uphold their personal perversions of morality.

      • by Bicx (1042846)
        I think you are misunderstanding the motives. Christians are not giving excessive violence a thumbs-up as an acceptable lifestyle. Rather, they are concerned by the effect a video game has on the viewer in real life. As a Christian myself, I don't think forcefully imposing my belief on anyone is right or effective, even though I do believe there is a defined absolute morality; it's a choice you have to make yourself. I also do think parents need to police their own children. I'm just trying to explain why
  • by divisionbyzero (300681) on Friday July 01, 2011 @01:17PM (#36635384)

    where *obscene* violence is more acceptable than completely *normal* sexuality. It's beyond me. WTF?

    • Hey now. Let's not cut off our nose to spite our face.

You can do this in a number of ways. IBM chose to do all of them. Why do you find that funny? -- D. Taylor, Computer Science 350

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