Supreme Court's Scalia believes game laws could be constitutional
by Alexander Sliwinski 
{ Feb 20th 2008 at 11:30AM }
Scalia's remarks imply that if a game law banning the sale of mature-rated games to minors ever made it to the docket he would affirm it -- really, no shock there. He clarifies that this would not put a ban on parents buying M-rated games for their children and that he believes video games (as long as it isn't declared "obscene") are protected by the First Amendment. As stated before, many lower courts clearly don't hold Justice Scalia's beliefs.
[Via GamePolitics]
Reader Comments (Page 1 of 2)
samfish @ Feb 20th 2008 11:35AM
Between this and that silly Obama story, Game Politics is really trying to stir up the shit today, it seems.
FidliousWong @ Feb 20th 2008 12:35PM
Well Yesterday was great because you had Larouche and Thompson making asses of themselves...
today? not so much....
samfish @ Feb 20th 2008 12:57PM
Lyndon LaRouche doesn't make an ass of himself nearly as often as a guy as batshit crazy as him should, though.
NATO_Duke @ Feb 20th 2008 12:58PM
When has Larouche not made an ass out of himself. Oh hey, if we had bullet trains we would have no other problems in the US - yeah, that makes sense. MS (actually he was blaming Counterstrike but said it was an MS game) caused a school shooting and trains will cure cancer, whatever you say Larouche.
Anticrawl @ Feb 20th 2008 2:01PM
I'm still confused as to what the issue is here. Retailers are already not allowed to sell M rated games to minors, and there is also this whole thing called parenting. Passing a law banning games to minors seems redundant. We already have barriers in place to stop this, plus it should be up to the parent to parent their kid.
Dirt @ Feb 20th 2008 2:51PM
Retailers ARE allowed to sell M rated games to anyone they want. The rating is an opt-in for retailers and parents, it is NOT law. Much like R-Rated movies. There is no law, but it is a guideline that nearly every theater follows out of common sense. Both industries self police themselves out of fear that LAWS will be made if they dont, which will end up in censorship.
However, most retailers will not sell M-Rated games to minors.
Mr Khan @ Feb 20th 2008 3:50PM
nah, this is just Scalia making an ass of himself, which isn't hard, since he's already known to be a heartless member of some sub-human species
Sorry, i just can't stand that guy, gives a bad name to Catholics
Flit @ Feb 20th 2008 6:02PM
/Dailykos start
Well, If this guy can Say that torture is constitutional, I don't see why we can't adopt his opinion on Legislating free speech too. Welcome to U.S.S.R. v2.1.4!
Up next, Hail to the Chimp is Cancelled due to all of the developers being hanged for treason.
/end
g.Park @ Feb 20th 2008 11:43AM
"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."
Emphasis mine. Not a lot of room for interpretation there.
Boscorooty @ Feb 20th 2008 11:44AM
"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."
All true. So why can't a 12 year old legally buy a Hustler?
vidGuy @ Feb 20th 2008 11:49AM
Because a child is not a legal entity. Just like criminals, children have restricted rights until they are legal adults. Children are legally incompetent.
g.Park @ Feb 20th 2008 11:52AM
Because we live in a prudish culture. I don't think 12-year-olds should have access to porn (though it's not like they can't get it), but it's not the federal government's job to decide when someone's ready to see a nipple.
The videogame and film industry both do great jobs of self-regulating without spending my tax dollars. If the publishing industry could do the same, we could do away with bullshit "obscenity laws" that are infringements on our 1st Amendment protections.
NATO_Duke @ Feb 20th 2008 12:04PM
g.Park it isn't the federal government who is at issue - it is the parent's rights over the minor that are involved.
The parents have a dominant right to control their children's access to what they may deem as offensive materials. You don't have to agree over what is offensive, but parents do have the rights to set standards through their elected officials.
No infringement is taking place - people can still get whatever they want. It is only the children, with the subservient rights to their parents that cannot get certain materials.
The constitution is not as dumbed down as people think it is. There are rights in it that clash and some have to step aside for the more important ones to be given power. Such is the case with a child's rights when compared with the parent’s rights of privacy in raising said child.
DEEZNUTZ @ Feb 20th 2008 12:22PM
I'm probably in the minority here, but I would be OK with this. It's not infringing on 1st amend. rights, and it really is about limiting access to questionable content by minors. Let the parents decide, not the store clerk.
vidGuy @ Feb 20th 2008 12:27PM
Actually, deez, I think you're in the majority. Most of us here agree with restricting the sale of mature games to minors. The problems come when (1) such definitions of restricted games are too vague, (2) when such laws start to infringe upon the rights of adults, and (3) when store clerks are held legally accountable.
For these problems, it would be better if the gaming industry would just enforce the ratings voluntarily, like the movie industry.
g.Park @ Feb 20th 2008 1:25PM
@Duke-
Parents do have the right to control what content their children have access too, but they don't have the right to use elected officials to enforce those standards on the children of every other parent in America.
If it became a law to restrict minor's access to objectionable content, it would become the responsibility of the government, not the parent to regulate what content comes into a home. The last thing we need is give parents more excuses to be irresponsible.
The government is not a parent.
NATO_Duke @ Feb 20th 2008 1:34PM
I understand your point g.Park, I just don't agree with where you take it. Under constitutional limits, such laws do have validity. The minor child does not have unconditional rights in the same manner as an adult does. There are plenty of circumstances where a child has to bow to the whims of those elder, and this in one of those.
g.Park @ Feb 20th 2008 1:53PM
Just because there's Constitutional precedent doesn't mean that these laws are just. I agree with you that parents should be able to make the decision for their children, but don't current industry practices do a good job of that? The FTC says almost 90% of parents are involved in the game purchasing decision.
What then is the point of writing more laws? To build expensive committees to interpret and enforce them according to their particular political agendas?
Any law that constrains rights should be passed only when necessary. There is no need for a law when the industry does a fine job of regulating itself.
NATO_Duke @ Feb 20th 2008 2:21PM
Whether there is a need for the law or not isn't really an issue of constitutionality. I would agree that such laws are not needed and that the industry could regulate it well on their own.
Yet when strictly looking at whether it is constitutionally just for such laws to exist, I stick to my previous comments on it.
DangerMouse @ Feb 20th 2008 4:59PM
I have no problem with restricting mature video games sales to minors, but i do have a problem with holding individual sales clerks accountable, as if they were prosecuted by the law like they stole something. If a sales clerk working for, say, Gamestop, sells a minor a M rated video game, then Gamestop should take proper action to discipline that employee or terminate his employment.
If there has to be a law, then it should be applied to the owner.
NATO_Duke @ Feb 20th 2008 11:44AM
I think you are spinning this a tad. Yeah, he may agree with games rated Mature not being sold to minors - but that doesn't mean he validates the other bs laws against games or the attacks on them.
I would place more focus on: "I think the important thing to note here is that Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment despite his strict originalist beliefs."
Games, like R / NC17 movies and other materials that some like and others do not, is a protected form of speech - that does not mean that minors cannot be regulated in having access to it. Its quite sound to have laws regulating a minor's ability to gain access to those items that society, and more importantly the parents, believe contain objectionable material. Don't forget that parents have consitutional rights to raise their children through the right of privacy. Thus,if a state decides that parents should be the ones allowed to decide what their children can and cannot play/buy, I would think that is constitutional and within their rights. Such laws have litle to no effect on the rest of society, or on a game being sold as a whole.
John Z @ Feb 20th 2008 11:46AM
I don't know, this seems reasonable. The fact that Scalia isn't advocating the total banning of M-rated games is a bit of a plus, but I can also see where this would be a slippery slope-- now you can't sell them to minors, next week you can't display them next to the E-rated games, the week after that you can't display them on an open floor, the week after that they have to be in a back room, etc etc.
I'd much rather see the penalties fall on the people responsible for the minor, rather than the people who sell the game, so that's the real deal-breaker here. If a parent buys the game for the child, that's fine; if the child tries to buy the game without parental approval, the parent is alerted and/or pays the penalty. The seller should not be held liable.
Crono (NDF - Knight of the Old School) @ Feb 20th 2008 12:15PM
Thats about the dumbest thing I've heard.
Little jonny uses his allowance to buy a game his parents don't want him to have behind their backs, and you want a law that fines the PARENTS? If thats not government telling adults how to raise their kids, I don't know what is.
Terrible idea.
John Z @ Feb 20th 2008 12:44PM
But you can bet that little Johnny won't be doing that again.
You misunderstand me: I don't want the government telling parents HOW to raise their kids. I just want the government TO tell parents to raise their kids.
Crono (NDF - Knight of the Old School) @ Feb 20th 2008 1:10PM
By fining them when their kids buy an M rated game.
Now for the flipside. What if the parents told little Johnny it was OK for him to buy said M rated game with his allowance. For instance, I would have no problem for my 10 year old to buy halo 3. The government is STILL going to fine the parents because they allowed Little Johnny to buy the game.
That is none of the governments business. And by imposing a fine, you are penalizing parents for making a decision only parents should be allowed to make: what kind of content little johnny is allowed to consume.
John Z @ Feb 20th 2008 1:39PM
Then you buy it for your ten year old, instead of running afoul of the law. Yes, if the parent has permission, I could give two rats' asses, but the point is that there is no way to prove that the parent has given permission except by having the parent make the purchase. I honestly could care less what the parent decides as long as it is the PARENT making that decision, and not the minor autonomously doing so or the government unilaterally deciding. I'm not saying that you or I could not buy it-- I'm saying that the minor should not, which is exactly what the rating system implies but doesn't enforce.
Anticrawl @ Feb 20th 2008 2:08PM
Simply don't give Johnny the allowance or hold it for him and go shopping with him when he wants to buy something. Keep him from working, as a parent of a minor you have the final say in consent. Then perhaps put Johnny's ass in some after school activities. Idle hands my friends, idle hands.
Crono (NDF - Knight of the Old School) @ Feb 20th 2008 4:01PM
No john, just no. This is a terrible idea. If you're going to fine someone, fine the retailer (not the store clerk). Fining the parents steps way to damn close to "You aren't parenting the way WE (the government) thinks you should be." Its none of the governments damn business how anybody raises their kids.
Anticrawl: What if I'm trying to teach my 10 year old the value of a dollar (good parenting). Holding his allowance for him until we have enough for ME to go buy it isn't teaching him anything. The point is, the government FINING parents is the same as the government telling parents what and how to parent. Its a bad idea, period.
samfish @ Feb 20th 2008 4:02PM
"Little jonny uses his allowance to buy a game his parents don't want him to have behind their backs, and you want a law that fines the PARENTS? If thats not government telling adults how to raise their kids, I don't know what is."
Why is Little Johnny buying an expensive video game without his parents in the first place?
When I was a kid, even if/when I had the means to buy a game behind my parent's back, they'd have never let me get away with it.
Anticrawl @ Feb 20th 2008 4:10PM
@Crono
That is a terrible way of teaching a child the value of a dollar. You want them to understand the value of a dollar? Make them buy their own food once in a while, you shouldn't leave such purchases to young Johnny. Bottom line here is, be a good parent or atleast do some parenting.
Crono (NDF - Knight of the Old School) @ Feb 20th 2008 4:25PM
Samfish: you missed the "behind their backs" part.
Anticrawl: I'll teach my kid the value of a dollar however I damn well please. Its not the governments job to tell you or me how to parent.
ScallionN @ Feb 20th 2008 11:55AM
Scalia is a bad guy, anyway. He won't investigate the anything related to the torturegate debacle going on, and in the past, he ordered the police to erase press recordings of his speeches. I wouldn't put this past him.
Crono (NDF - Knight of the Old School) @ Feb 20th 2008 12:17PM
He's a judge. Its not his job to investigate.
vidGuy @ Feb 20th 2008 11:47AM
This gives me great confidence that the Supreme Court would give out the proper opinion.
The problem with most of the recent attempts is not their goal, which is usually to block 'adult' content from children (a legal goal), but their means. These laws tend to be overbroad and would encourage arbitrary enforcement, which would naturally make the law a violation of due process and unconstitutional. To say that "violent" games should be blocked does not stipulated what counts as violence. Also, the laws create a liability on store clerks that would need to be investigated for legality. Can store clerks legally be held negligent for selling a 'restricted' game?
I'd be surprised if we didn't have a law against the sale of Mature games to children within the next ten years. I think it's much closer than that even. But there's absolutely no way that the banning of Mature and Adult games (as in, preventing adults from purchasing the material) would be upheld in a US court.
The Fuzz 53 @ Feb 20th 2008 11:52AM
I really don't see the problem with this. How is it any different than the laws for R rated movies? Besides, I wouldn't mind throwing out of some of the brats that play M rated games.
g.Park @ Feb 20th 2008 11:55AM
There are no laws about R-rated movies.
Shmil @ Feb 20th 2008 12:15PM
Movie restrictions are a MPAA policy not a government mandated law this is why parents/guardians are allowed to take underage kids into R rated movies
Jack @ Feb 20th 2008 12:57PM
Well if a law vid game law was passed it probably wouldn't disallow a parent to buy an M rated game for a minor.
As far as the law goes, I don't think its illegal for a minor to watch an R rated film at all. Its just theater policy to not allow any minors in.
Antonio @ Feb 20th 2008 12:02PM
At least he believes that video games deserve constitutional protection, which puts him a step above Ebert and a lot of dumbasses out there. I couldn't care less about not selling M-rated games to minors, but it should be handled through industry regulation like the movie industry.
Korova @ Feb 20th 2008 12:07PM
Scalia has just invited appeals for every single struck down game law in the US - all he had to do is indicate that he is politically not opposed to it by blabbing out some reasonable sounding legal argument about the path to state control.
Scalia is a good lawyer and a good lawyer will guide his client to practically any goal by legal means (with certain limitations imposed by the legal tradition). But Scalia's politics are terrible - he is a social conservative of the first sort who believes that the organized will of society (be it the state, a corporation or a social club) can trample the rights of minorities as long as their morality is consistent with the morality of the end of 18th century US.
He is a sort of a Luddite, really.
NATO_Duke @ Feb 20th 2008 12:12PM
"But Scalia's politics are terrible - he is a social conservative of the first sort who believes that the organized will of society (be it the state, a corporation or a social club) can trample the rights of minorities as long as their morality is consistent with the morality of the end of 18th century US.
He is a sort of a Luddite, really."
Well phrased, but I totally disagree with you. Those are your opinions of him, but that doesn't make them facts on the man.
vidGuy @ Feb 20th 2008 12:24PM
I won't speak to Scalia's person but I completely disagree with your point. Most of the laws that were struck down were killed on legal grounds other than the question of ratings and minors. Chances are that they were appealed before Scalia's comments. And chances are that they won't make it to the Supreme Court.
WHEN a state properly passes a law that is upheld by a state supreme court, it will likely be appealed to the US Supreme and we'll have an opinion. It may be a while though because most of these laws are being passed by Evagelical media-whore types who can't seem to propose a legal bill.
Crono (NDF - Knight of the Old School) @ Feb 20th 2008 1:12PM
"It may be a while though because most of these laws are being passed by Evagelical media-whore types who can't seem to propose a legal bill."
No, its being passed by opportunist politician's who would rather waste tax payer money than look weak on the "protecting the children" platform.
Korova @ Feb 20th 2008 3:23PM
Of course they are opinions, informed by study and observation. I am not sure at what point a characterization of a person becomes a fact, but I think I can predict his actions based on my opinion.
All video game laws have lingering constitutional issues that are enough of a hook for the Supremes, if they are willing to bite. Which they usually do only if they think the issue is important.
My point really is that Scalia has long signaled his willingness to cloak social conservative agendas in legal silk and he has now opened the door to VG haterz. Its really baffling, as KCVocals says, that the Supremes would think that VG is important enough for government regulation.
rwiggum @ Feb 20th 2008 12:53PM
Well, I think that the thing to see here is that he DOES believe that games are a protected form of free speech, and that's important. I don't think that anyone under 17 SHOULD be able to buy games. I don't think we need government regulation, but at least he isn't declaring all games obscene.
Shmil @ Feb 20th 2008 12:11PM
i really don't want that dirty feeling of buying a dirty magazine or a pack of smokes when i buy my games
but i'm afraid that this will be the first of many attacks on our beloved medium of entertainment
after obama's bit on cleaning up Hollywood then video games aren't far behind and hillary is right there
we're about to be effed in the eh
Game Artist @ Feb 20th 2008 12:29PM
I just dont get why games are different than movies or music in this regard. Unless they start legally restricting that media they shouldn't restrict games of similar content.
Brokenscope @ Feb 20th 2008 12:50PM
For the love of god.
He is not saying games can be regulated. He is simply saying if a game was obscence it could be regulated in the same fashion that a porn mag or a porn movie were regulated.
He is not saying all M rated games are Obscene. He is not implying games as a whole need to be regulated. He is simply stating that things deemed obscene using the miller test CAN be regulated.
Guess what, unless you make a game with a story along the lines of a porn video (Pizza guy comes to the door, how much is the pizza $69.00, oops i don't have that much money, bad jazz starts, shift in the the sex scene) The game isn't gonna be considered obscene.
Jesus people, don't make this more than it is. He is simply stating the government can restrict a minors access to obscene materials. This also means that for any law to BE constitutional it would have to be incredibly narrow and applied on a case by case basis.
This isn't a massive reversal, this isn't some massive loss, this isn't Jack Thompsons day of reckoning.
Don't feel so fucking persecuted.
For reference there are no laws restricting minors access to an R rated movie.
vidGuy @ Feb 20th 2008 12:57PM
Um, broken, I think you need to read this discussion again.
FidliousWong @ Feb 20th 2008 12:45PM
Punishment simple shouldn't exist in this regard in either way.
I used to work retail and tried to give warnings, and I would be lectured for trying to raise their child. I also, and this is no shit, had to deal with a lady attempting to return Clifford's Day at the Circus DVD because it was too violent...
Fact of the matter is, most parents ARE involved with these decisions. They just don't pay attention then want someone to blame when they chose to ignore the mention of drugs, graphic violence, and sexual content.
Retailers should not be put to task on raising your child, period. Especially when parents are present soo often in these purchasing trips. I'm sorry, no excuses.
I remember being a kid, saving up $300 and being so excited to buy my Sega Genesis. My mother was asking me the entire time what is this game about, what is that game about. Mortal Monday was once rapidly approaching and due to the media rants, she wouldn't let me buy it, until I showed her what was involved at the local arcade. And I remember, vividly, being denied Splatterhouse....
Parents today are the problem. Not the industry, not the laws or lack thereof, not the systems. The parents.