THE BLOG
11/18/2013 04:29 pm ET Updated Jan 23, 2014

State Lawmakers Again Trying to Justify Video Game Censorship

Still smarting from their blow-out loss at the Supreme Court two years ago, state legislators are laying the groundwork for a new push to censor video games.

Last week, TechFreedom joined the National Coalition Against Censorship and four other groups to file comments expressing concerns about legislation proposed in Massachusetts. The bill, which would commission a study on video games as causes of real-world violence, sounds harmless at first. But it's clearly intended to cause the Supreme Court to finally uphold video game censorship. Luckily, the study wouldn't really satisfy the government's burden in justifying censorship -- but it certainly would unleash years of pointless litigation.

In 2011, the Supreme Court struck down a California law imposing special restrictions on teens' ability to buy video games deemed "violent" by the state. A major win for free speech advocates, the ruling in Brown v. EMA made clear that video games are protected by the First Amendment just like books, movies, and other media. Therefore, laws imposing special restrictions on video games must be justified by data showing that they're uniquely likely to cause violence -- that, for example, video game depictions of Revolutionary War naval battles have substantially different effects than depictions in books or movies.

California conceded it could not "show a direct causal link between violent video games and harm to minors" but claimed it "need not produce such proof because the legislature can make a predictive judgment that such a link exists, based on competing psychological studies." The Court said this would be true only for laws regulating all types of content, but since the law in question targeted video games alone, California bore the burden of proof -- and failed to meet it.

Any law that imposes special restrictions on video games, like minimum age to purchase or subjective labeling, will require a lot more proof than the Massachusetts study could provide. Given the heavy burden born by the government -- "ambiguous proof will not suffice" -- any scientific study trying to upturn today's scientific consensus (finding no causal link) would have to be exceptionally rigorous and thorough.

But a study contrived to reach the preordained conclusion that video games cause violence certainly would unleash another flurry of state legislation and years more of protracted litigation. Worse, there's no doubt it would encourage politicians to resume attempts to browbeat video game publishers into self-censorship -- in other words, trying to circumvent the Supreme Court's Brown decision.

Politicians have been trying to evade the First Amendment since the Bill of Rights was ratified. It's bad enough when they use their bully pulpit to harass media publishers about content they think is "indecent." But targeting "killing games" (the term used by the Massachusetts bill) for special study and scrutiny violates the fundamental First Amendment principle that government may not target expression, "because of its message, its ideas, its subject matter, or its content."

Our letter focuses on the Massachusetts bill, but there's similar legislation being considered by Congress: Senator Rockefeller's Violent Content Research Act of 2013. While this bill's study would be a bit better, as it includes all video programming rather than video games alone, its true intent is revealed when it specifically calls out "video games' interactive nature and the extraordinarily personal and vivid way violence might be portrayed in such video games." One wonders how many movies they've seen lately or video games they've played. Both can be quite "vivid."

As video game commentator Ryan Fleming points out, "since this would be the first real government research dedicated to the subject of violent gaming's effect on kids, it also means that any future legislation would rely on it primarily." More than any state action, a study with the federal government's seal of approval would embolden those seeking to regulate video games. But even so, censorship advocates will have a hard time convincing the courts that video games actually cause violence. Again, "ambiguous proof will not suffice," meaning it won't be enough to produce a single study that arrives at the politically convenient conclusion that the current science is wrong.

The real game, in other words, will be played out in court, where video game publishers haven't lost yet. Senator Rockefeller better be ready for the release of Lawyer's Creed: Appellate Litigation.