John Feehery: Speaking Engagements

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Video Games and the First Amendment

Posted on July 21, 2010

Postal - often considered the most violent video game on the market



Wouldn’t it be just wonderful if the Federal government could make our kids eat broccoli?  Wouldn’t it be perfect if the Feds could come in and tell little Johnny that he better take a bath or he is going to go to jail?  Wouldn’t it be nice if Congress could pass a law telling everybody under eighteen that they couldn’t watch television past 8 o’clock at night?

After all, studies show that broccoli is good for you, that being clean is essential to a long life, and that reading a book is better for your brain than watching television.

Since we all trust the government so much right now, it must be a great time to pass federal mandates to tell parents how to raise their children.  Now, parents should be happy about these mandates.  It gives them more leverage with their kids, right?

Wrong.  Most people would find this kind of government mandate to be a scary intrusion into their daily lives.  So why do so many people supposedly support the federal government’s mandates of video games?

The California legislature, in 2005, passed a law, signed by Arnold Schwarzenegger, to regulate so-called violent video and computer games.  The law didn’t define exactly what a violent game was, but government regulators would know it if they see it.  Does that mean that a Tom and Jerry game would be deemed violent?  Jerry certainly thought so, but nobody else really knew.

Of course, it is especially rich that Schwarzenegger would sign such a bill since he gets millions in royalties from games associated with his many, very violent movies.

The California law was unanimously overturned by the 9th Circuit, and now the case heads to the Supreme Court to test the proposition that we either have a First Amendment that is worth something or we don’t.

The Roberts Court seems to be pretty respectful of the First Amendment, especially in the context of political speech, which I think is a good thing.

If the Supremes think that government regulation of political speech should be relatively unregulated, they should argue the same for video games.

And I can see a day in the not-too distant future where the two mix.  I can see the new Sarah Palin vs. The Obamaninator game.  Can you?

The California video game law would strictly regulate the sale of violent video games to people under 18.  But the law didn’t give us any hint as to who would decide what is violent and what is just good clean fun.  It didn’t give us any hint as to what the sanctions would be.  And it didn’t even define what violence is or isn’t.

This kind of law is very popular with politicians who are looking to protect their political ca-rears, rather than looking after the Constitution.

One example is the ever-eager Richard Blumenthal, the politically vulnerable Attorney General of Connecticut who is looking to upgrade his career, even though he was exposed to be a serial exaggerator of his non-existent military combat career.  Blumenthal grandly called on the video game industry to “follow the leadership of the motion picture industry, which sensibly stops unattended children from viewing violent or graphic movies,” apparently not understanding that the Entertainment Software Rating Board has been in place for years, and not caring that fully 98 percent of all so-called violent games are purchased by parents, not by kids.

My good friend Chris Healy, the Chairman of the Connecticut Republican Party, said it best when he talked about Blumenthal’s grandstanding:

“Today's offering from AG Dick Blumenthal allowed him to say the following in the first paragraph - "games where players burn people alive with gasoline and urinate on people to make them vomit."
Once again Dick Blumenthal offers another meaningless pronouncement with so many qualifying statements he should hire some outside counsel to explain it to him. 
Blumenthal is a joiner - this time his office joined a lawsuit  with an amicus brief after nine states have sought to implement ways to prevent violent video games from finding their ways into the homes of youngsters. 

This used to be the responsibility of parents, but no matter, Dick says that parents "deserve and need help. 

In this construct, the parents will be relieved to know that the government can ask the industry to voluntarily rate the games and then, the parents can then communicate this information to their children rationally.

"Son, you can't have this game - there is simply too much peeing." 
The child, after pouting, will stalk off and download from a friend who is a Vomit Master - Level 5. 

Blumenthal thinks voluntary guidelines will do the trick but the state should always reserve the right to place "restrictions" on games if the action gets too heavy. One can only imagine the bureaucracy that would be created to review and rate the endless release of Death Warrior XX.

 Is there anything we can't do without Dick Blumenthal?”

Apparently not. The Supreme Court’s principle job these days is to stop an out-of-control Congress from taking away all of our freedoms in the name of our children.  They have their work cut out for themselves on this one.