Rhode Island Achieves The Impossible
Via Game Politics comes news of a bill introduced in the Rhode Island Senate, and strongly backed by such "it's all for the children" censors as the Parents Television Council, which would make it a crime to sell a violent videogame (in this case one rated "M" (mature) or "AO" (adults only) by the Entertainment Software Rating Board) to a person under the age of 18.
The bill, sponsored by Senators Frank Ciccone, Paul Jabour, Beatrice Lanzi, and Michael McCaffrey (all Democrats) is utterly and blatantly unconstitutional for reasons which should be obvious. But in case they aren't, here's a quick rundown of the law:
Restraint of artistic speech (and videogames, like movies and books, are considered art and speech) is prima facie unconstitutional unless the speech is considered "obscene," that is prurient, offensive to community standards, and having absolutely no redeeming artistic value. This presumption applies, with some caveats, even to laws which make it a crime to show or disseminate offensive material to minors, which is why no state makes it a crime to admit a minor to an R-rated movie.
In fact, just this week an Indiana prosecutor who threatened to prosecute the people who run those "red box" dvd rental kiosks for offering R-rated movies to anyone who could pay backed down from his threats, evidently concluding that he would be made a national laughingstock if he went further.
Yet this bill would do just that. It would make the State of Rhode Island a national laughingstock, more so than it already is. Another rason the bill is problematic, that is to say unconstitutional, is that it makes the ESRB, a voluntary trade association with no governing power whatsoever, the sole arbiter of what is and is not a crime in Rhode Island. Just because some prude at ESRB considers Headshot II: the Columbine Simulator offensive, doesn't make it obscene. Rhode Island would not only be violating the First Amendment; It would be unconstitutionally delegating sovereign power to a private corporation.
Just how misguided is this bill, constitutionally speaking? It's so unconstitutional that even Jack Thompson, the disbarred crank Florida lawyer famous for his anti-videogame crusades (and sending gay porn to federal judges, agrees with me:
On December 11, 2005, about a similar federal bill which never passed Congress, Thompson wrote:
Sen. Hillary Rodham Clinton recently introduced her "Family Entertainment Protection Act" in a purported attempt to ban the sale of M-rated games to minors. Will it work? Not a chance.
Clinton's FEPA, as proposed, is completely unconstitutional.
U.S. law is clear: A private-sector standard for rating entertainment products cannot be enforced by the government. This has been settled constitutional law for decades.
Yet this is precisely what Clinton's bill would do. It seeks to convert the industry's Entertainment Software Rating Board (ESRB) game ratings into the law of the land. Such an approach has been unconstitutional since local communities in the early 1900s created private-sector "obscenity councils" in an attempt to dictate to state juries which books were "obscene."
It wasn't constitutional then, and it isn't constitutional now.
The mistake that various states have made in formulating a governmental standard for games has been to vaguely define how much and what kind of sex and violence can be in interactive media sold to minors. Such an approach utterly fails on constitutional "vagueness" grounds. I've been in those legislative fights that wind up in the courts. I've been paying attention.
[Source: Fort Worth Star Telegram, December 11, 2005, "What Kind of Game is Hillary Clinton Playing?", not available for free online, archive purchased by me and excerpted as fair use for its value as political commentary from a respected scholar of the First Amendment.]
Rhode Island's Senate has achieved what we thought could never be done: They've made Jack Thompson look like a thoughtful and judicious defender of free speech.
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