In March of 1775 at a small church, a radical by the name of Patrick Henry gave a speech to the Virginia Convention. In his speech Henry said one of the most famous lines in American History: “Give me liberty or give me death!”
The context of his words urges the Virginia Colony to send troops to fight in the American Revolutionary War; a war that ultimately made possible the nation which grants certain inalienable rights and liberties- The United States of America. Over time people rallied and readily championed a multitude of our Constitutional “freedom to” and "freedom of" while losing sight of the tertiary status entailed; what about “Freedom from”?
In 1987 the Dead Kennedys released an album with sharp commentary on American consumerism titled “Give Me Convenience, or Give Me Death”. It would seem that between 1775 and 1987 freedom to and freedom from are only worth fighting for only if it’s convenient. But, nothing is convenient about being convenient, a great downward spiral to which the depths push a society bent on having things spoonfed to them spend as much energy in finding ways to adapt to poor conditions and manufacture acceptability as would be spent elevating themselves back to naturally occurring good conditions. Yes, pay no attention to the man behind the curtain the best interests of people are always in mind, read our collective lips – no new taxes, I did not have sex with that woman, and free health care for all.
From the Washington Post last week:
The Supreme Court agreed Monday to decide whether California can ban the sale or rental of violent video games to children.
The court will review a federal court’s decision to throw out California’s ban. The 9th U.S. Circuit Court of Appeals in Sacramento said the law violated minors’ rights under the First and Fourteenth amendments to the Constitution.
California’s law would have prohibited the sale or rental of violent games to anyone under 18. It also would have created strict labeling requirements for video game manufacturers. Retailers who violated the act would have been fined up to $1,000 for each violation.
The law never took effect, and was challenged shortly after it was signed by Gov. Arnold Schwarzenegger. A U.S. District Court blocked it after the industry sued the state, citing constitutional concerns.
Opponents of the law note that video games already are labeled with a rating system that lets parents decide what games their children can purchase and play. They also argue that the video games are protected forms of expression under the First Amendment.
The high court’s action Monday was surprising, given that justices just last week voted 8-1 to strike down a federal law that banned videos showing animal cruelty. The California case poses similar free speech concerns, although the state law is aimed at protecting children, raising an additional issue that affect the high court’s consideration.
California lawmakers approved the law, in part, by relying on several studies suggesting that some video games can be linked to aggression, anti-social behavior and desensitization to violence in children. But federal judges have dismissed that research.
The supporters of the law say the same legal justifications for banning minors from accessing pornography can be applied to violent video games. They point to recent Federal Trade Commission studies suggesting that the video game industry’s rating system was not effective in blocking minors from purchasing M-rated, or mature-rated games, designed for adults.
But courts in other states have struck down similar laws.
The First Amendment is a tragic protagonist of an amendment indeed, but it’s become somewhat of an excuse to say or do anything in modern times; a close to literal “Catch-22″. That said, no right is absolute. With the ‘falsely shouting fire in a crowded theater’ as the classic example for lack of absolution, absolution removes responsibility of the party making the false claim and aside from being subject to an array of ’slippery slope’ arguments, isn’t morally or ethically justifiable; to willfully make a false statement with a known negative outcome is wrong and should be illegal because it can cause great harm. There are two landmark cases to keep in mind here: Schenk v. United States and Bradenburg v. Ohio
Oliver Holmes, the presiding Justice in the Schenk v. United States case stated:
“The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Later overturned by the Bradenburg v. Ohio case, the scope of banned speech was limited to banning speech that incited imminent lawless action. This would retain the famous “Falsely shouting fire in a crowded theater” but would again allow speech that supported insubordination such as what the modern Tea Party does. Neither however support hate speech or making threats of violence (that’s illegal, as proof of the limitation of Constitutional Rights).
For the Video game industry to use the First Amendment as a protective clause as a means for allowing artistic expression in the face of censorship is acceptable, but to use it as a shield to try and block legislation designed to keep violent materials from minors lends itself to the idea that publishers do in fact, market the materials to appeal an audience below the ESRB rating. The movie industry is guilty of the same type of marketing evidenced by the urge to change “X” to “NC-17″ because “X” hurt box office sales, and recently the movie industry now urging the MPAA to retire “NC-17″ in exchange for “Heavy R” because now “NC-17″ hurts box office sales. The game industry has made similar lobbies yet comply with the voluntary action of submitting games for ESRB review not to sell more, but to keep from selling less… a sort of stop-loss variant model.
Studies alleging a link between violent behavior and violent video games isn’t fully legit (arguably) due in part to the methodology of said studies, interested parties of the studies, and the generally vague and conflicting conclusions between the various studies over the course of study. Retail stores should however, be forced to limit what they place in the hands of their patrons, especially if corporations are given ‘personhood’. Personhood, or rather “Corporate Personhood” is the other sticky matter in this mess.
The Fourteenth Amendment as it pertains to ‘corporate personhood’ gives corporations rights as a ‘legal person’; arguably intended by the Nation’s founders and framers to enjoy many, if not all, of the same rights as natural persons (tangible, fleshy people), such as the right to lobby the government, the right to due process and compensation before being deprived of property, and the right to speak freely. Just this year the Supreme Court issued a ruling affirming and expanding corporate rights to free speech in elections. Treading the slippery slope argument “At what point does it end?”, it ends when corporations find no advantage in exercising that right. This is the underlying problem: greed. As individuals in society, there is no monetary gain in expressing an opinion. Stated opinions can influence others, sure, but very often opinions yield no money (particularly unsolicited ones) or there is no tangible reward for truly express an opinion to influence another with honesty. They’re given for moral and or ethical reasons. The point of business is to make money and if a business functions in any other way for any other reason than to make money, then it is not a successful business; even non-profit businesses turn money (but must spend it all to break even or lose NP status). Most of the time ethics and morals are only exercised because laws limit their actions or because the cost of avoiding them is higher than the gains made by demonstrating them.
Still, the difference between morals and ethics is that morals are defined by the courage ethics lack. In other words, an ethical man knows he shouldn’t cheat on his wife, and a moral man won’t; morals being the practice of ethics.
Recently there was written a blog where a group of parents had made an appeal to the XBL mods to enforce clean language or at least enable a system to do so because their children had consistently been exposed to rude language, immature behavior and mature topics (read: the typical behavior of the online community) . One parent in particular had used their child’s experience online as an example and stated that their 5 year old had asked an online player to stop cussing over the headset. The offender failed to comply and was asked a second time. Of course the offender didn’t comply and when the parent took the headset and asked the offender to be mindful of children on the game and to clean up their behavior, was cussed at and challenged.
On it’s face this seems reasonable for the parent to be upset and as though they’ve every right to file complaint. Many people would support the parent in their request and perhaps on some level the parent has a valid place to complain, I for one wouldn’t want my 6 year old listening in on even a fraction of the things said over the chat systems however; I find equal fault in the parent given that the FPS in question was, as 99% of FPS titles, rated M. So my question becomes: Why was a 5 year old on an M rated game, online, and why should the majority of the intended community be asked to tone down their behavior to cater an an audience that for all intents and purposes be absent?
Responsible parents have to worry about what comes into their home and around their children. In the above, it seems as though the parent was using the game as a babysitter, and then to also understand that the child was wearing the headset indicates that the parent had no concept for what goes on – yet the fact they owned one also indicated someone in the house did, but who? Was this parent an example of an irresponsible parent? No, but it isn’t an example of a responsible moment either. Who was there to act as the conscious? Apparently no one, but should anyone other than the individual being exposed? Can it be argued that the 5 year old knew better? Shame upon the 5 year old for not regulating themselves.
In some ways the argument can be re-focused to comparisons of the “explicit lyrics” label on music and the voluntary conditions by which that label is applied. Bringing music as a comparative in the debate however is fairly weak in contrast to using the movie industry because you hear music whereas you see and hear both movies and games. Games in this case have even more immersion given that they require personal interaction whereas movies and music have no interaction other than observing.
Ponder this:
If one were to consider that the rating systems of both the ESRB and MPAA are in lieu of government imposed censorship laws (and they are – they’re the societal and industry condoned ‘happy medium’). Both groups are non profit and the industry volunteers to their service for the release of their respective associated media. Both are set up as guides for parents as a supplemental feature in the decision making process. Only the MPAA rating of an “R” and “NC-17″ have accompanying laws that restrict the sale of tickets to minors without the presence of a ‘responsible’ adult (read: parent or guardian, one who is responsible for the well being of the minor). If movies are less interactive, why is there a law regulating distribution and sales of tickets to observe the media?
Not to champion governmental control and intervention, if a society cannot take responsibility on it’s own or if the industry by which intervention effects would have overall positive affect, then a degree of intervention should occur. People can make the argument (slippery slope argument) that enacting such a law would provide law makers the power to legislate control on all aspects of entertainment, in many ways akin to book burning; that the corporations effects would and should file onus and hold the government responsible for the outcome, or that such laws would severely burden the government with things they need not be a part. While in an extreme this is a valid argument there are already laws restricting sales of certain materials to minors such a pornography, alcohol, weapons, tobacco, lotto tickets (all of which have been proven to create problems for both individuals and society, yet are legally obtained and used responsibly by many). There is no need for an entertainment focused ATF / DEA, nor is this the call.
There are already laws restricting the sales of tickets to an “R” rated movie to individuals under the age of 17 with a stipulation that many would overlook in this debate: “unless accompanied by an adult over the age of 18″. It really only restricts minors from being self exposed to things society deems harmful, but doesn’t wedge itself between what a parent or guardian deems acceptable. The government doesn’t get any more involved than making a simple rule. It acknowledges the subjectivity of the MPAA rating, and allots for parents and legal guardians to override the suggestion by physically being present to purchase the ticket. What happens after the ticket sale then becomes the responsibility of the individual and not the ticket retailer, movie industry, or government.
Laws governing the ticket sales haven’t budged much if at all and no one is pushing for the law to go one way or another; whether or not it keeps them from sneaking in is another matter entirely, and falls from the scope of the specific law.
Now, ponder this:
Since when was it sound to allow the interest of business and industries to supersede those interests of the citizens that make up both the government which legislates and corporations which sell? And if corporations can be trusted, specifically retail corporations, with the interests of society and or an individual what is the reason for laws enforcing a degree of ethics, for example the “Lemon Laws”, and then why does it extend past cars to other items like boats, RVs, and even computers? The answer is that corporations can’t be trusted to act upon ethics without checks and watchdog groups in the face of profits which is why those laws are made and enforced in the first place.
There’s a fairly ‘easy’ set of possible solutions to all of this:
1.) Merge MPAA with ESRB and extend the ticket sales restriction of “NC-17″ and “R” rated films to either retag “M” and “AO” game titles within the merger, or put them on legal equivalence within the the ticket sales laws.
2.) Enact a law to restrict sales of “M” and “AO” titles under the same pretexts of the law for “R” and “NC-17″.
3.) Repeal the law restricting ticket sales to movies rated “R” and “NC-17″ and put things on an even keel across the board.
The above article likens the proposed laws with similar restrictions to sales of pornography, but this is also a weak logic area. “M” rated games are closer to “R” rated movies and “AO” rated games are closer to “NC-17″ movies. In fact, there are only 24 “AO” rated games listed in Wikipedia, most of which are for violence rather than sex, and 0 listed in production. What this says is that developers are not setting out to create games accessible to a limited audience. If anything, enacting such a law would encourage developers to create games with broader appeal and push innovation.
No matter how the problem is solved or if it continues to persist we have greater responsibility and interest in stopping potential harm to ourselves because while corporations have equal right with personhood to stop potential profit loss and protect their interests, they’re made up from individuals within our society. Those corporations will come and go but the people that they’re made up of will remain, and in a society that champions equality, ‘ain’t no one more special than another‘.
Finally, perhaps the most perplexing aspect of this whole deal in debate is that it is taken far out of context. This bill would grant corporations the power to step back and be removed from responsibility when a minor obtains a copy of this kind of material since the law would stipulate they are not legally allowed to do so. The responsibility then gets placed on the individual who bought it or the parents who allow their child to be exposed. Is that not the underlying cry here, to keep the responsibility on the individual?
