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High Court's violent-game sales ruling: Why now?

Pending Supreme Court ruling comes as tech enhancements bring gaming to the mainstream, but consultant Larry Downes argues the pace of legal change can't keep up with technological change.

Editors' note: This is a guest column. See Larry Downes' bio below.

The U.S. Supreme Court today heard arguments in Schwarzenegger v. EMA, a case that challenges California's 2005 law banning the sale of "violent" video games to minors. The law has yet to take effect, as rulings by lower federal courts have held it to be an unconstitutional violation of the First Amendment.

There's little doubt that banning the sale of nearly any content to adults violates the protections of free speech, including, as decided last year, video depictions of cruelty to animals.

In today's hearing, California's legal arguments centered largely on another case, the Supreme Court's 1968 decision in Ginsberg v. New York. There, the court upheld state restrictions on the sale of pornography to minors, even though the material is protected speech for adult purchasers.

As technology has made video game graphics more realistic and lifelike, the games have only now captured the attention--and invaded the nightmares--of regulators in the real world.

In Schwarzenegger v. EMA, California is urging the court to extend Ginsberg's reasoning to content that meets its definition for violent video games. Ginsberg, the state argues in its brief (PDF), upheld a ban on the sale of sexual content to minors because such content is dangerous to their development. So too, it argued today, with violent video games.

Indeed, the state argues that such material has as much, if not more, of a negative impact on the development of children than does sexual material.

That, of course, is a question open to considerable debate. After the fact, the state cited a number of academic studies that find a correlation between exposure to violent video games (including games, such as Super Mario Bros., well outside the California definition) and antisocial behavior. But as scholarly briefs from the Entertainment Merchants Association (PDF) and a joint brief from the Progress and Freedom Foundation and the Electronic Frontier Foundation (PDF) point out, the methodology in these studies has been roundly criticized.

Why now?
The court may focus on those studies in its decision, but I have a different question. Why are California and other states focusing on video games, and why now? As Justice Ruth Bader Ginsberg asked at today's argument, "What about films? What about comic books? Why are video games special?"

The answer has everything to do with timing. As EMA's brief points out, similar attacks have accompanied the rise in popularity of every new form of media throughout U.S. history:

The California statute...is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different.

Video games have been around since the 1970s, but state legislatures have only recently begun trying to regulate them. So why the delay? The answer, not surprisingly, is Moore's Law. As technology has made video game graphics more realistic and lifelike, the games have only now captured the attention--and invaded the nightmares--of regulators in the real world.

High-end games such as Grand Theft Auto and Resident Evil generate what the PFF/EFF brief calls "moral panic." Legislators equate what they see on the screen with behaviors that gleefully flaunt the laws and norms of the real world. Their first impulse is to find a way, somehow, to stop it--even though it's only a simulation.

Realism matters. It's hard to remember that not so long ago, video games began their Neolithic Age. Consider Pong, the first home video game from Atari in 1975. It would take an imagination greater than mine to think of the batting of a block of monochrome pixels by a bar of pixels to be violent enough to corrupt youth; likewise, the breaking of a wall of pixels one at a time in the follow-on game Breakout.

But a few years later, consider the commercial for Activision's ice hockey game:

The game promises to be one of the "roughest" video games ever, "battling for the puck" with "fierce body checking" and "ruthless tripping." Just watching the players fight it out drives a meek-looking Phil Hartman into a frenzy; within a few seconds, he seems ready to attack the clerk who teases him that he's not yet ready for it.

Despite an ad that explicitly suggests a connection between playing (or even watching the game) and becoming violent, the actual graphical quality of the violence is so disconnected from visual reality that it never occurred to any state legislature to ban or otherwise restrict it.

Now fast-forward just a few short decades later to the imminent release of Xbox 360's Kinect. Using Microsoft's new sensor technology, players of the forthcoming Kinectimals can control realistically rendered animals simply by issuing voice commands or by mimicking the desired movements. It hardly seems possible that the same beings who invented Pong could have advanced to Kinectimals within the span of one human lifetime. But we did.

Coupled with new 3D technology and increasingly large, high-fidelity displays, video games have in the span of only a few decades advanced to the point of challenging the cinematic qualities of movies. Indeed, games and films are converging. They now use much of the same technology to produce and to display.

Now that video games offer fidelity in imagery and movement that is comparable to film, the law has awakened to both the positive and negative impacts they have on those who interact with them.

Since the First Amendment doesn't allow interference with the sale of violent content to adults, California focused on children. But it's clear from the tone of the state's brief that it just plain doesn't like certain video games, just as it didn't like certain movies and certain books in an early age of mass-market technologies.

Frozen in time, laws become irrelevant
As before, legislators would like, if they could, to turn the clock back.

Of course, that is always the response of the law to new technologies that challenge our conceptions of reality. The only difference between the comic book burnings of the 1950s and the video game laws of today is the speed with which revolutionary technologies are arriving. The killer apps come faster all the time. And with them come the counterrevolutionaries. This is why the California statute also suffers from another common and fatal flaw of laws attempting to hold back new technologies: early obsolescence.

Lost in today's legal arguments is the impending anachronism of the California statute. It assumes a world, disappearing almost as quickly as it arrived, in which video games are imported into California as physical media in packages and sold in retail stores.

Consider, for example, Section 1746.2:

Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white "18" outlined in black. The "18" shall have dimensions of no less than 2 inches by 2 inches. The "18" shall be displayed on the front face of the video game package.

As broadband connections make it possible for game developers and platform manufacturers to transport the software over the Internet, sales of video games in media form are rapidly declining. So even if the law is ruled constitutional, it will apply to an ever-shrinking portion of the video game market. There will soon be no "retail sale" and no "front face" of a "package" onto which a label can be put in the first place.

These industry changes aren't being made to evade laws like California's. Digital distribution reduces costs and eliminates middlemen (the retailers, the packagers, the truckers) who add little or no value. More to the point, it enables companies to establish ongoing relationships with their customers, which can be used to sell add-on chapters and levels, online play, and the sale of related products and content, including films.

The industry, in other words, is evolving not only in terms of sophistication and realism of the product. The same technologies are also scrambling its supply chain. And what is emerging as the new model for "games" is something in which California and other states have almost no regulatory interest.

The pace of legal change can't hope to keep up with the pace of technological change, making this law, like many others, out-of-date, even before the ink is dry.

So it seems an odd time to target legislation at a particular and disappearing version of the industry's content and retail channels. But that's often the case with laws trying to manage the unpleasant social side effects of new technologies, just as they become mainstream. The pace of legal change can't hope to keep up with the pace of technological change, making this law, like many others, out-of-date, even before the ink is dry.

This is not to say that the Supreme Court's decision in this case won't matter, even if it rejects the California law. Another feature of statutes like this, unfortunately, is a high likelihood of unintended consequences.

The potential for the court's decision to do future mischief to unrelated industries and dissimilar content is legion. For example, as the PFF-EFF brief points out, California and other states may try to extend the ban on sales to minors to other content and to online channels. But it isn't as easy to determine the age of an online buyer as someone in your brick-and-mortar store.

"Applying the law online would likely require mandatory age verification of all online gamers because the law prohibits any sale or rental to a minor," according to the brief.

A similar feature in an earlier federal effort to control pornography on the Internet led the Supreme Court to void the statute on First Amendment grounds. But in the Supreme Court, and in the lower courts that interpret its decisions, anything can happen. In fact, it usually does.