He'll Be Back

The Governator promises to appeal a court decision against video game regulation.

In an outcome less surprising than a side-scrolling shooter, on Monday a U.S. district judge struck down California's amazingly broad attempt at banning the sale of violent video games to minors. This marks about the tenth time in recent years that an American court has cut the lights on game console-spooked state lawmakers and told them to knock it off.

But once Judge Ronald Whyte booted the 2005 law on First Amendment grounds, California Gov. Arnold Schwarzenegger wasted no time vowing to bring the case to the Ninth Circuit Court of Appeals. The Ninth is the famously—some would say notoriously—First Amendment-friendly federal appeals court. An appeal there seems doomed.

Even so, for the governor there is still the potential political upside of pandering on an issue that continues to have national legs. And a close read of Whyte's decision may give some hope to the video game regulators that they are on the right track, if not with the Ninth Circuit, then perhaps elsewhere.

The California law attempted to define violence in such an amorphous way that any serious judge would have to wonder what the law meant. Violence was "defined" in 12 round-about paragraphs, including this classic clash of law and common sense:

"Serious physical abuse" means a significant or considerable amount of injury or damage to the victim's body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse, unlike torture, does not require that the victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing.

So when Homer Simpson runs over someone with a car, does that count? How about a vicious check in an NHL hockey game, followed by a fist fight?

With imaginary violence so defined, the law moved on to the imaginary motivation behind the violence:

Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim's body, and helplessness of the victim.

Yes, that troll only required three blasts from a wizard's staff to kill—allowing a fourth is clearly "heinous, cruel, and depraved."

Such overbroad, borderline nonsensical reasoning was clearly the weak link in the law, as Whyte noted. "The definition could literally apply to some classic literature if put in the form of a video game," he said, apparently withholding the classic tag from Tolkien and Lewis, as well as Rowling. So far, so good.

Yet Whyte was clearly sympathetic to the notion that video game violence might be regulated by the state were a link established between the games and the behavior of minors.

"The state can legitimately restrict speech if such a restriction is narrowly tailored and will prevent or significantly decrease the likelihood of antisocial and aggressive behavior in minors—not merely how a minor thinks of violence," Whyte wrote.

Judge Whyte was telling the governor and lawmakers to try again—with better evidence.

"In addition, the evidence does not establish that video games, because of their interactive nature or otherwise, are any more harmful than violent television, movies, Internet sites or other speech-related exposures," he wrote.

The legislature argued that such a link existed when it passed the law, which wasn't surprising as it was written by a child psychologist convinced of the harmful effects of "ultra-violent" video games. State Sen. Leland Yee (D-San Mateo) reacted to Whyte tossing out his handiwork by claiming that studies show a correlation between violent gaming and violent behavior, but no absolute link. Yet.

Though he does not explicitly say so, Yee clearly wants to medicalize the issue of video games to the point where the games cease to be viewed by the courts as First Amendment-protected interactive stories, but instead as "violence-delivery devices." From there the violence need only be shown to produce consistently negative effects on young brains, manifesting in all manner of anti-social behavior impacting other members of society.

Recall that tobacco regulation remained stalled until it hit upon the double-whammy of cigarettes as nicotine-delivery devices and second-hand smoke to drive restrictive action in the courts, executive regulatory arms, and in legislative bodies.

With most violence by definition second-hand, watch the violence-delivery plot line. The governor may yet help take the video regulation franchise in a new, more successful direction.

Jeff Taylor writes from North Carolina.