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| Here's why they can't remove guns from video games by Commander Tansin A. Darcos 05/10/2013, 12:21am PDT | ||||
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| Short version.
The various governments of the United States - which means: the federal government and both a state government and a sub agency of a state government such as a county or city - lack the power to prohibit a maker of a video game from including guns in a video game, the use of guns in a video game, the use of guns on a video game to kill people, or the use of video games to kill soldiers, uniformed police officers, or even a protected class of people or an identifiably minority group such as negroes, Jews, Catholics, Protestants, gays, whites, American Indians, men, women, or children. Long version. Now, here's why. A tiny, little known, seldom used and mostly ignored and obscure law known as the First Amendment to the Constitution of the United States. Now, what the First Amendment says, is, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." This part in bold is the critical part. This right is of two parts. First, it includes the right of a maker of a video game to include guns, and the use, or the showing of that use on people. If they could restrict someone from doing these in a video game, then, the maker of the game's speech would have been abridged. Second, is the right of a user or viewer of a video game to play or watch the game (or a cut-scene). A right to speak is absolutely worthless if it does not include the right of a willing audience to hear that message. If you've got every right to say something but your audience has no right to hear it, your right has essentially being abridged as if they made it illegal for you to say it in the first place. Consequently, the First Amendment right to make things available includes the right to see them. There are only five things that have been considered such that for various reasons the government can restrict someone's right to say something or to see something. The first would be classified materials or things related to the security of the country. One example the courts have given would be times of troop movements when the country was at war could legally be prohibited from being published. The second are trade secrets kept by a particular party; Coca-Cola can legally stop someone who had gotten a copy of their formula without permission and published it. But they have to have kept it secret, and you can't stop someone who has found it out independently by simply reverse-engineering or independently discovering it, e.g. the Boston Transit Authority tried to stop some people from publishing how they cracked its (weak) encoding of its fare cards so that someone could counterfeit them. The courts did stop the people who were going to present it at a public seminar for a time, but, when it was determined that the means they got to discover the transit authority's trade secret on how their cards were encoded was to reverse-engineer it, the court order was lifted. The third is copyrighted material without the permission of the copyright owner, to the extent it goes beyond "fair use." This is too complicated to go into in a short article, but most of you probably understand this one, so I'll skip it. The fourth is speech intended to incite immediate lawless action. Since a video games are played in the home to private audiences, or to small audiences, it's unlikely that making a game would cause people to go out and riot, so this doesn't apply. If someone did use a video game to incite a crowd to riot, that person would be arrested but the video game maker would not be affected. Even if people did go out and riot because of a game, that's still not enough absent evidence that there was an intentional effort to get people to go out and commit crimes of violence, a standard in the case of some manufactured work - as opposed to some guy standing on a street corner or on a podium agitating people - that is so high a bar to overcome it's unlikely that anyone could argue a work is so offensive or "rabble rousing" or otherwise of such a nature that its viewing or reading could immediately cause people to go out and commit crimes. And the fifth is hardcore pornography which is obscene. Despite Supreme Court Justice Potter Stewart's famous statement in Jacobellis v. Ohio that he couldn't define what pornography is, "but I know it when I see it," we do have an exact rule of what obscenity is. For a "work" - that's the technical term the court uses to refer to a copy of something which is considered to be protected by the First Amendment, e.g. a book, a movie, or in this example, a video game - to be obscene, it has to do three things: the work, in its entirety (1) it "appeals to prurient interest;" (this means it's got to get people thinking dirty, it has to turn someone on) (2) describe or depict, in an obviously offensive way, sex or going to the bathroom; ("dirt for dirt's sake") and (3) as a whole, lacks "serious literary, artistic, political, or scientific values." This is what's known as the "Miller Test" from the Supreme Court's decision in the case of Miller v. California. Unless a work does all three of these things, it's not obscene under the terms of the decision in Miller and can't be banned. Now, I don't know about you or me, but nobody has ever been able to show that the use of guns, in any form, will get people hot and bothered, like that they want to take off their clothes and hop in the sack. Even the most rabid gun-nuts don't get that out of an AK-47 or a Rocket Launcher or of someone offing someone with a 9mm semiautomatic. Well, at least, not that I've heard of, anyway. Since a game showing someone using guns doesn't violate national security (unless they included classified photos of a government design, which is not likely); is not a trade secret; if it's original it doesn't violate copyright; is not going to cause people to pick up a gun and start shooting (at best, someone might emulate what they saw in a game, ala Harris and Klebold at Columbine High School, but even then they didn't really emulate the game Doom, all that it was, was one of them had created a third-party map for the game), and copying what you saw in a movie doesn't make the movie maker liable for what you do); and, since it doesn't get anyone sexually excited, a video game doesn't fall into any of the categories of things that can be restricted, so it is absolutely immune from being banned. Now, there are questions you might ask. First, you might say that "this says this is what Congress can't do, how come it also applies to a state government?" Well, because of the Fourteenth Amendment, which says that the privileges that someone has as a citizen of the United States can't be restricted by a state, the Supreme Court decided that the Fourteenth Amendment required that the First Amendment be held applicable to the individual states as well[1]. Even if it didn't, every state has its own constitution, and they all have a state right similar to the First Amendment, in some cases, a state Supreme Court has held under the State's constitution that some protections granted by it are even broader than those granted by similar or equivalent provisions of the U.S. Constitution, and you could probably argue they're protected under the state's equivalent to the First Amendment. Next, you might ask, "Well, that's the state government, why can't cities and counties have local bans?" Because while the state governments and the federal governments are separate entities, counties and cities are considered extensions of the state they are in because the state charters them, so an action of a city or county as far as a law is concerned is considered, a law prohibiting certain types of video games by a city or county is considered the same as if the action were that of the state government[3]. Now, you might ask, "But the First Amendment only talks about writings and speech, a computer game isn't either?" Well, yes and no. At first, the Supreme Court decided that a motion picture - which is probably the closest thing you can compare a video game to, these days - wasn't protected by the First Amendment, at least with respect to commercial distribution and showing of films[2], and states could require licensing - or could refuse to grant a license - to a movie for showing. It is very likely that video games, had they existed back in 1915 when that was decided, would have been protected because they're generally released for private use, rather than for public distribution. The members of the Supreme Court changed, and later, another court case came up which said they were wrong the first time, and movies do qualify for First Amendment protection. And while states could license films, they can't ban them; they can either approve them or they have to sue the maker to have the film declared obscene to stop it[4]. Finding a video game obscene when it has no sex in it would be impossible, so they wouldn't have any legal recourse to ban it. Now, one more question you might ask is, "Well, can't they ban something that is harmful to minors or restrict it, I mean, while you can show or sell X-Rated films, you can only show them to adults, and they can require that you keep them out of the hands of minors, so why can't they do that with video games?" Well, again, this has to do with the obscenity rules, and basically, absent showing that the display of guns, or the use of guns (or even showing people being killed by guns, is objectively harmful to minors, there's no grounds to do that, either. And the Supreme Court has ruled that Video Games do qualify for protection under the First Amendment[5]. So, now you know why it's really not possible to stop the making of video games using or showing guns, or even showing violence in them. At least in the United States, anyway, and with the reach of the Internet it's trivial to get a game in an area where it could be banned. [1] Cantwell v. Connecticut, 310 U.S. 296 (1940) [2] Mutual Film Corporation v. Ohio, 236 U.S. 230 (1915) [3] Waller v. Florida, 397 U.S. 387 (1970) [4] Freedman v. Maryland, 380 U.S. 51 (1965) [5] Brown v. Entertainment Merchants Association, 564 U.S. ---- , 08-1448 (2010) |
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