Last month’s decision of the US Supreme Court in Brown v Entertainment Merchants’ Association (PDF) (formerly Schwarzenegger v VSDA) has attracted a lot of attention. For some academic background on the story leading up to the case, see Rousse’s thorough ‘Electronic Games and the First Amendment’ (SSRN), or my own piece of last year, ‘The regulation of video games: past, present and future‘. All the filings in the case are available via SCOTUSblog. This blog post, written in honour of what was apparently Video Games Day in the US last Friday, brings you some comments of my own – bits of this have appeared previously in a nice piece by Ben Maxwell on Edge Magazine’s website, available here. I’ve used the excellent coverage of press statements by various parties at GamePolitics.com for many of the added links.
The most significant thing about the decision to strike down California’s law on the sale of video games to under-18s was how clearly it was a First Amendment case; the court was particularly firm in arguing that games were protected in full by the First Amendment. Scalia (for it is he who writes the majority opinion) goes to great length to compare video games with other forms of expression (from comic books to movies), and even highlights the degree of gore found in the clearly-acceptable Snow White, Hansel and Gretel and Cinderella, not to mention Homer’s Odyssey, Dante’s Divine Comedy and Golding’s Lord of the Files. The interactivity of good fiction is used to dismiss the claim that interactive games deserve special legal attention. To some extent Breyer’s dissenting opinion answers this (although see the Citizen Media Law Project’s blog’s puzzled face at how Breyer feels about the First Amendment), as does aspects of Alito’s concurrence (which reads more like a dissent, and anyway Scalia has four votes as well as his own (from the ‘liberal’ wing!) already, so a majority without the separate opinion). (Thomas also writes a dissent, but it’s about the lack of constitutional rights of under 18s as a broader principle).
Not only does this confirm that games are being taken seriously at the highest legal levels, it also placed a heavy burden on California to justify the restriction. With this in mind, the court was not persuaded in the slightest by the evidence put forward regarding a link between gaming and aggression, which must come as a disappointment to those who have been arguing these theories for some time. The Empirical Legal Studies blog has a good piece on the evidential issues. While the need to be aware of specific issues for under-18s was noted, even this was not enough to justify the intervention. However, it’s interesting to consider whether there is a gap opening up between the approach of the court to sex and to violence (or indeed to language); the fact that the decision to hear Fox v FCC in 2011/12 (this time on First Amendment grounds alone; last time the focus was on administrative law) was announced on the same day does whet the appetite.
In the US, the decision means that the self-regulatory system (the ESRB) will continue to be the main form of video game regulation for some time, and other states that had considered following California’s lead will probably cease their efforts. The ESRB pointed to the decision as an endorsement of its system, although there were some harsh words in concurrence and dissent regarding the effectiveness of the labelling system. I was particularly interested to see the response of the State Senator who proposed the original legislation, Leyand Yee, who focused on the corporate power of the games industry being able to continue unchecked. I don’t agree with a lot of Yee’s points in the press release, nor with separating video games from other forms of protected expression, but there is a point about accountability and indeed power when the anti-regulation industry is happy to support and fund regulation as long as it is the regulator.
Meanwhile in the UK, we already have a mixture of self-regulation and statutory control. Most games are exempt, while some (either on the grounds of content – gross violence, etc – or format – significant video content) are presently classified by the BBFC under the Video Recordings Act. Changes are on the way though (as discussed in my 2010 piece), with two simultaneous amendments to the VRA – the extension of statutory regulation to a wider range of games, and the possibility of designating a separate body for the classification of video games. Taken togther, this will mean the use of the (existing and non-statutory) Europe-wide PEGI system for statutory classification in the UK, once the relevant orders (envisaged by the Digital Economy Act) are passed.
The High Court has already had one opportunity to consider video games, in a 2008 judicial review of the decision of the Video Appeals Committee (itself an appeal against a BBFC refusal to classify) regarding Manhunt 2,  EWHC 203 (Admin). On that occasion, the Court found that the VAC was not interpreting the ‘harm that may be caused to potential viewers’ provisions of the Video Recordings Act (as amended) correctly. The ECHR’s concept of harm was mentioned, albeit briefly. In future cases, one imagines that the detailed findings of the American courts may be useful (albeit of persuasive value only and subject to the usual concerns around the First Amendment in non-US courts). The impact of a regulatory decision on the right to freedom of expression as contained in the Human Rights Act is clear. Of course, the BBFC already states that it takes the HRA into account (alongside other statutory provisions) and one assumes that this will continue under the Video Standards Council for PEGI. The VSC should declare, immediately on taking up its duties, that it will act as if the Human Rights Act applies to it (which it most likely does) and it should go about its business in a responsible fashion, including asking to be subject to the Freedom of Information Act and publishing its decision-making and appeal procedures.
UK developers may be relieved that they do not have to deal with a California-only system as there are already a number of different systems in use around the world, although they will still need to be aware of differences between the ESRB (US) and PEGI (European) systems of classification.Of course, Germany remains outside PEGI, and Australia remains a major ‘market’ for games with a standalone system for classification, which – in essence – has a ‘top category’ of suitable for 15 and above, which means that games classified for over-18s in other jurisdictions may not be acceptable in Australia. This has been under review for some time.