LGJ: Supreme Court Decision Doesn't Bode Well

by Mark Methenitis on May 30th 2009 1:00AM

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

The recent FCC v. Fox decision seems to have gone relatively unnoticed in the gaming press. Yes, the case at hand was about broadcast media and the FCC, and yes, the makeup of the court is now certain to change since the decision came down. However, neither of these potentially distracting facts should take away from what this decision really is: yet another expansion of the government's censorship power over the public. If there is anything the gaming public should be paying attention to, given the continued anti-game activism, is successful control over other media. And there are really three major concerns that come from this ruling.

First, I want to make it clear what this ruling is not. The ruling is not an actual victory for game opponents. While it makes some suggestions, the precedent can't be directly applied to the game industry at this time. After all, there is no governmental body to control game releases because those releases are not being made over licensed broadcast spectrum. After all, the government only controls TV broadcasts because the government owns the airwaves. More importantly, this ruling is not purely about censorship or the First Amendment. A significant part of this case is administrative law, and for those same reasons, it's not applicable to the game industry.
I don't want to discourage you from reading the seventy-plus-page opinion, but to offer a brief summary as an alternative: the case revolved around the use of the "F" word on Fox as an expletive during two live events. Fox did not censor the use of the word, and the FCC fined the company, changing from previous policy where an isolated use of a curse word as an exclamation wasn't generally punishable. The argument was that these uses struck a "first blow" at impressionable minors and that a policy exempting these expletive uses would lead to increased use on broadcast television. The Appeals court rejected the FCC's stance, but the Supreme Court overturned the decision allowing the FCC to proceed with its new policy.

The first of the three major concerns is the willingness of the court to accept censorship in this manor. It is interesting to see that as media has become more open and permissive, the court has allowed a stricter policy on broadcast media to move into place. The court actually acknowledges this point in the majority opinion, describing the broadcast media as a "haven" for parents compared to cable TV. Arguably, this would be the case with movies and games as well. If the court truly intends the broadcast media to be the haven compared to other media, then it suggests it won't be eager to see controls on other media. On the other hand, the court may view games as a children's media (erroneous as that opinion is). If that is the case, then it may be another place the court desires to see as a "haven."

The second major concern is the likely increase of interactive elements in television, and how those elements may allow control of television to bleed into control of some, if not all, of the gaming space. Tech demos of interactive TV are by no means uncommon, and DVRs like Windows Media Center and TiVo already have interactive elements to some degree. It is only a matter of time before the next generation of television, with interactive broadcast media, becomes readily available.

The US is still a place that values free speech over arbitrary controls on games.

At that point, when the lines become blurred, it's the possible expansion of FCC control that should worry the game industry to the extent its included in the broadcast space. To me, it's amazing that parental controls aren't already mitigating much of the FCC's role in controlling TV, and it would be entirely possible that those kind of controls may be in place before interactive broadcast TV is popular. The key is to prevent the FCC from using that fusion as an opportunity to increase its role into the gaming sector as well.

The third concern is the potential for an entirely different breed of censorship to have a greater presence with the confirmation of Sonia Sotomayor. Sotomayor has had a lengthy career on the bench, and her rulings are a bit of a mixed bag for the industry and for gamers, making her impact difficult to predict. On copyright, for example, her opinion in the NY Times case might bode well for publishers rights, but not necessarily developers; while her opinion in Castle Rock doesn't bode well for fair use. Speaking to the First Amendment issues, there's an equally mixed bag. Her record has generally been in favor of free speech, no matter her personal opinion of the speech. However, many would be quick to point out that decisions in other areas may make her more amenable to arguments for censorship in the name of political correctness. Based purely on her rulings, I would tend to think that if she remains consistent, this won't be the case. However, other justices have been known to shift their opinions once they reach the high court.

Despite the changes that are occurring in other countries, it seems that the US is, for now, still a place that values free speech over arbitrary controls on games with less graphic content than rival forms of media. However, unless we, as the gaming public, remain vigilant, it is possible that will change. Granted, we have little control if the Supreme Court decides to uphold a gaming regulation, other than pressuring the legislature to legislate otherwise or amending the Constitution to reverse the Court. But by remaining vigilant, hopefully we can prevent these decisions from ever being taken out of our hands.

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

The content of this blog article is not legal advice. It only constitutes commentary on legal issues, and is for educational and informational purposes only. Reading this blog, replying to its posts, or any other interaction on this site does not create an attorney-client privilege between you and the author. The opinions expressed on this site are not the opinions of AOL LLC., Weblogs, Inc., Joystiq.com, or The Vernon Law Group, PLLC. As with any legal issue that may confront you in a particular situation, you should always consult a qualified attorney familiar with the laws in your state.

Tags: censorship, fcc, law, law-of-the-game, ljg, supreme-court

Reader Comments (61)

i never understood the need to censor curse words on TV. chances are, if a kid is watching said show, he/she already knows the word and A LOT more. the rating system is too strict in some cases. if the mature ratings are for mature people, why can't a lot of those shows drop the F bomb?

Because the FCC in its wisdom, or definite lack there of, thinks that no child will have ever heard the words before seeing them on TV. I know full well my Dad swore around me well before I saw even the bleeped version on TV. Second, The FCC some how thinks parents will let there kids watch mature shows, or just things no one should hear this bad naughty words.

well, we have been becoming progressively more liberal over time, for example how less than 100 years ago girls could barely show their legs, so i guess 10 years from now, language censoring on TV will only be the worst of the worst like the N word. of course, if we're becoming more and more liberal, where's the end/turning point? totalitarianism where everything is censored?

The FCC is kind of right about swear words though. Its sad when you see people hopelessly dependant upon using them as the only adjective that comes to mind to describe ...any condition.

"My bleeping car didn't bleeping start because the bleeping motor was bleeped to all of bleep. The bleep mechanic is probably going to charge me a bleeping leg and bleeping arm to get the bleeping peice of bleep fixed. Bleep bleep it! Why the bleep are you starring at me like that? I can speak any bleeping way I want. You Bleep-tard".

Above is an actual conversation I've overheard. Sufficient to say, the person does not come across as intelligent, a bit offensive and a bit of a dunce. The sad part is if we grow our children up to speak in that manner in say the United States or Canada or wherever whoever is reading this may come from, it looks bad on your entire nation in a way. If everytime a British person speaks to a Canadian, American or British all you hear is bleep this and bleep that, it would only further the brash, rude, arrogant, dunce sterotype that nobody wants and some countries already suffer from.

If we could stop even 1 in 10 children from using curse words consistenly by banning them from say comic books targetted towards teens, games targetted towards anyone under 18(or at least replace them with symbols) and removing swear words from tv, I say go for it. What's the best that happens? Less swearing in our society? What's the worst that happens? You don't get exposed to swear words as much? Ohh no. Dear golly gosh. Not that!!

I fully understand censership of shows that run over antennas, the problem is that only like 4 stations in my area go over the ole Antenna. Why do MTV, Nickelodeon, and all those other stations have to worry about nudity, and various other problems?

Wes,

How about this: if a kid is growing up cursing every other word, then perhaps their parents should tell them to be more respectful? Or if you're one of those people who don't think parents bear the brunt of responsibility for their development of their child, how about next time you hear someone talking like that you tell them they sound unintelligent and speaking that way hurts the overall representation of their nation's people across the globe?

If you truly think those are valid arguments, try doing something about it yourself rather than asking dear Daddy Government to pass a law to force your misguided beliefs on everyone else.

There's no good argument in support of censorship. Controlling how people talk, which is an extension of trying to control how people think and behave, goes against everything that being human is all about. Free will doesn't always grant us the means, but it does always grant us the ability to think and--in the absence of someone trying to take exercise control over us--speak for ourselves.

If you want a good reason why people should put more thought into how they speak, reference George Carlin. He said, "People think in words." If you want to improve your quality of thought, improve your quality of language. Whether or not someone wants to improve their quality of thought, however, is, and should always, be up to them and not some government agency.

Are you saying that exposure to swear words turns decent, honest people into morons?

I'm sure if there were no swear words the guy talking about his car would just have been running around with a lampshade on his head instead.

The job of the government isn't to protect people from mean or naughty words. It's only legitimate function is to punish those who violate the life, liberty or property of another. FOX using naughty words doesn't fit the mold, therefore, the FCC needs to go away.

Besides, the more common a vulgar word becomes in the lexicon the less vulgar it actually becomes. Words like breast and humbug used to be vulgar as well, now we see them stamped on bags of chicken at the grocery store and in elementary school productions of A Christmas Carol.

Words are but sounds, sounds only have a meaning as attached to it by the listener. Those various vulgar words have completely lost meaning to me since they're spoken so frequently. Try it with any word, just repeat it over and over again out loud and it turns into a meaningless sound. Quite the fascinating psychological phenomenon.

As the great George Carlin once said, "Think for a minute how smart the average person is. Did you know half the people in this country are dumber than THAT?"

Essentially it's like this. I love a good F-bomb from time to time. It's a powerful word, carries impact. It's like a verbal shotgun lying in wait down your throat. I will not discount someones opinion just because they use it, but how often they use it direct effects the impact it has. If every other word is f-bombing, it removes the power and impact. This persons verbal emphasis goes flacid and weak. A great example of this is the latest Eminem album. Despite having a TON of F-bombs, each one is like a gunshot, there is power behind the world because of the emphasis and how they are spaced (except for the verse where "how many fs can I throw in" becomes the challenge). But to counter that, a rapper who does nothing but drop F Bombs loses that power in the phrase.

But also consider this. The context. This is where censorship of any kind becomes foolish and stupid. If a particularly foul phrase only removes the offending word, one has to question where the benefit was. After all, the context is STILL there. Everything that was foul about the statement is still in effect. Ultimately you've censored nothing. So why do it?

Ah yes, the kids. Have you spent TIME around children when their parents aren't around? You're trying your damndest to protect children from a word that they've heard more times from their peers at the age of 8 than from anywhere else for their entire lifespan. Xbox Live should be evidence enough that children have heard and abuse these words more than 98% of adults.

I never knew any vulgarities until I saw them on TV... and even then I researched them before using them, learned they actually had proper non offensive definitions, and used them either properly or not at all, anyone who used them improperly (The majority of society) appeared as an idiot to me, and well they acted idiotic and immature.

The Mature TV rating means it expects a mature audience to deal with the immaturity, it doesn't mean there's MATURE content in the movie, because MATURE content is not something to censor, IMMATURE content, is.

Can I deck Scalia right in the fucking face?

There's no need for that because this decision isn't what Mark says it is. This isn't a censorship case, this is an administrative law (law governing agencies like the FCC, FDA, etc.) case. The issue in this case is whether the FCC erred in applying a law banning obscene language over the airwaves, not whether the law itself is constitutional. Agencies like the FCC are traditionally given a lot of deference by the courts, and their decisions are only overturned when they are "arbitrary" or "capricious." The argument against the FCC here is that it should have provided more of a justification for changing its policy regarding "fleeting expletives," which Scalia rejects, in keeping with that tradition.

Scalia's opinion doesn't address the constitutionality of the FCC's censorship at all, because, based on his ruling, the case is remanded, which means here that he's sending it back to a lower court to deal with the potential First Amendment issues before the Supreme Court gets to look at the case again. Additionally, a separate opinion by Thomas suggests that Thomas thinks the rule against expletives is unconstitutional. If all four dissenters also believe that, then the Supreme Court would probably declare the FCC's censorship authority unconstitutional if the case ever comes back to it.

The fact you have been upvoted for saying that is a disgrace. You probably are completely ignorant of what Scalia truly believes and just goes with whatever the media has told you to believe. Think and investigate for yourself, Scalia is the only justice who still believes the same as our founding fathers.

Great read - thanks for the write-up. Is anyone else amazed at the freedoms we have slowly been giving up over the last decade - and continue to do so? I guess it is always easier to have someone else (the government) censure your media, food, vehicle, travel, etc...

It's been going on a lot longer than a decade my friend and if your decking Scalia the I'm sure as hell giving the peoples elbow to Ginsburg.

That's because most people are too lazy. Most people probably aren't aware of most of the Bill of Rights.

If you take a serious look at the history of freedom, the Supreme Court and First Amendment issues in this country, you'll actually find that our level of rights and freedoms has varied wildly over time. We often perceive that things are getting worse, only because those events are happening during out time.

I'm not saying that the revoking of freedoms or curtailment of speech is in any way right or natural. I prefer to error on the side of having more freedoms and totally open speech. But I recognize that our history is at best a mixed bag of rights and freedoms that are hardly stable.

It depends the situation. In some cases, I do not care. However, in Australia, proposing a mandatory internet censorship to 'protect' children on the internet without people ever being allowed to see what sites are censored (as in its highly open to abuse), is something I can't stand. And since I have no power in the situation, I can only sit back in horror and wait to see what decision is made.

Its times like these I say how the responsibility should be on the parents to teach and filter what they do and see and a cure is education for both of them, not mandatory banishment.

Political apathy, when it comes to issues beyond the skin colour of the president, is rising in all corners of the developed world, and allows stuff like censorship and fascist anti-terror legislation through because less than 10% of people actually realise the importance of what they're losing.

Last decade? They've been slowly being eroded since Woodrow Wilson with a lucky reprieve between him and Abraham Lincoln. Since Herbert Hoover, with his modern day equivalent budget deficit of $3.3 trillion and straight up business takeovers (he was not a do-nothing as many fools that call themselves public school history teachers may claim), there hasn't been a President or Congress that didn't take every advantage to take away power for themselves under the pretext of "helping".

The last good President America had was Calvin Coolidge, everyone since was equally horrible.

Reagan had his days where he wanted to restore power to the people, but he was a politician after all and the Congress was all democratic for the most part.

I'll give him a pass, considering he dropped the marginal tax rates from 70-28% ect. But he could have done better. I get sick of the FDR propaganda, the man was a terrible president who probably prolonged the depression longer than it should have gone. And FYI read his memoirs and other writings, he openly bashed the Bill of Rights and believed that competition between businesses doesn't help the consumer. What a moron.

Sotomayor's opinions don't strike me as off; after all her only non-government job was a copyright lawyer.

Yet Sotomayors has had her rulings overturned around 80% of the time. Legislating from the bench isn't interpreting the constitution no matter how you slice it.

I understand the need for the FCC, and that they keep the network airwaves from turning into cable networks that no one would feel safe letting their children watch, but the decision in the fleeting expletive case really grinds my gears. Telling networks what content their scripted shows can contain is one thing, but when you tell them that they are responsible for words spoken during a live event, you are basically mandating that every station in the country implements a delay. That being the case, why not just...I don't know...implement a policy that mandates a delay for all future live broadcasts, and keep the courts out of it?

The case of the fleeting expletives is only slightly more absurd than the fine that got handed out to ABC for half a second of female butt, and another half second of side boob (on NYPD blue). That was truly even more absurd, if only because the same show had shown Dennis Franz's enormous ass (sorry Dennis) multiple times, as well as the bare ass of one of the other male leads of the show. With one fine, they put out the message that man ass is fine, while female ass is obscene, and single-handedly set us back 10 years socially.

I don't think the ruling has any direct implications for video games though. As mentioned in the article, the FCC gets to censor the airwaves because they are public, and because the spectrum being used is owned by the government. The ESRB is a private organization on the other hand, and no one could make the argument that somehow the government has ownership of video games in the same way that they have ownership of the airwaves (although I'm sure a certain former Florida lawyer would try).

What we really need to be worried about (as far as censorship goes) are the constant laws being based that are found to be unconstitutional. All it takes is one judge ruling that such a law is constitutional, and then a few appeals, and suddenly the case is in front of the supreme court. If they were to rule that the government can censor video games, we'd be screwed.

The videogame industry in relation to the government needs to normalize as it has with the movie industry. When is the last time a government in this country tried to pass a law making it illegal to sell an R rated movie ticket to a minor? The same should go for video games. The real problem, and the problem that I have no idea how to fix, is that video games continue to have the stereotype of being "for kids", and because of this, they continue to come under fire from the "won't somebody please think of the children!?" parents groups that have so much (undeserved) political clout.

Great LGJ article, as always.

I start contradicting myself when I'm drunk. I meant to say that the fleeting expletive fine was slightly less absurd than the fleeting female ass.

This is what happens when you have activist judges instead of originalists. Creating law from the bench is a clear breach of the constitution; we are subject to the whims of 5 unelected people in black robes!

Anyone who sees the supreme court as a bastion of freedom is sorely mistaken; this is the same legal body who upheld Japanese internment in Korematsu and who upheld segregation in Plessy. The guy who wants to "deck" Scalia obviously has no idea what the man's beliefs are. For if Mr. Muldoon read the constitution and Scalia's opinions, he would probably wish to deck others in the face.

In addition, if you read the summary opinion, the finding of the court is merely upholding an existing law. That is the job of a supreme court justice: to interpret the law, not dance around it. Although you may disagree with the decision, you need to have congress change the law.

Don't bother Zax, all the "DECK SCALIA!" bastards have no clue what they're talking about. They are spoon fed propaganda from the NBC's and CBS's, Scalia is one of the few remaining justices on the court that our founding fathers would have still approved of.

It will be a sad day when Scalia passes away/moves on. The odds are it will be the last true judge the court will ever see.

if it prevents me from seeing more congressman penis in games im all for it. In seriousness, this is bullshit, fuck the supreme court, old people might have wisdom but usually they're just out of fucking touch

Really, do you have any idea what this was about or did you just read the headline and say FUCK OUT OF TOUCH OLD PEOPLE!

The problem is that, I already feel like the power is out of our hands. I feel like we're completely at the mercy of the government and the courts when it comes to censorship of free expression. I know that's a bad view to have, but worldwide free expression is being taken away bit by bit by various governments and organizations, and it's just getting me a bit down.

That's the problem. I don't know of any proper ways to protest decisions. Unless I am ignorant, there is no proper front to approach the overturning of censorship laws. All I know and see is to gather a bunch of people outside a place and protest/riot

They might be neurotic or possibly psychotic. They're the fellas that the Freaking FCC!

Oh you know someone was going to make the Family Guy joke at one point...

FCC v Fox reads like it was put together by an eight-year-old. F-Word. S-Word.

How do we know these words are if we don't explicitly define them?

Falutin' Stymied?

Flatulent Spooge?

That's the problem with censorship, if someone says F-word, you KNOW they mean fuck...so the purpose of the censorship is lost. The point was already made and already broadcast.

I am the law.

http://www.youtube.com/watch?v=Hyph_DZa_GQ

While I do see the point that there is potential for the censorship to bleed over into gaming in general, I believe the opposite. As the ability to interact and modify broadcasts becomes more complex, it could be possible for someone to alter the level of content they wish to see. This is already here in the form of a comparatively primitive "V-Chip", that simply blocks shows over a specific rating.

As the technology ladder climbs though, who is to say we wont be able to simply press a button, and your episode of CSI has it's blood censored out? And any swearing has been dubbed over with less expletive? Gears of War 2 did this in a way, with the ability to turn off gore all together, and to change any swearing into something more appropriate. The wave of technology could make it so those who wish can view regular broadcast TV without having the writers have to dance around swear words and hide nudity.

What does worry me though is the possibility that the government and FCC could take the reins of the technology and censor out anything they wish, from swearing to nudity to even dissenting opinions, although that's worst-case scenario. What I'm trying to say is that while there is the possibility that it could bleed over into games in a negative fashion, it's also possible that it could be a big step forward for freedom of all speech, expletive or otherwise, on regular broadcast television. Even gaming may benefit where a game may receive a range of ratings with the parent able to modify blood, gore, sexual scenes, but for those who want them there, they'll be there.

I sure would have liked to see Arrested Development without the censorship of swearing, although they did base an episode around the ridiculousness of the censorship...

Thomas, Roberts, Scalia, you're supposed to be originalists, or at least you claim to be. The simple fact you even allow an organization like the FCC to exist is sad and, what's worse, you've made me agree with people like Ginsberg and Souter, that is a crime in and of itself. The US Constitution doesn't allow organizations like the FCC to exist and for very good reasons. Just because the medium of communication has changed doesn't mean the lessons handed down in that document are any less valid.

Originalists are the right people to put on the bench of the SCOTUS. At least those that actually behave that way.

Ugh ... this is stupid. The ruling was simply about BROADCAST -- meaning, over the air transmission. This is because the airwaves are commonly owned, therefore regulated by government. Cable, interactive media over the TV, games, all of that is not. Period. The Supreme Court, which some of you are bashing foolishly, has continually upheld free speech rights ... the only place it has allowed government intervention is public places, because your inherent right to free speech does not overrule, for example, a parent's right to protect their child from being exposed to certain messages.

You have to remember, part of freedom of speech is a right to refuse to listen to certain messages.

This ruling is not a harbinger to anything -- another thing that was suspiciously absent in this article is the fact that the Supreme Court remanded the case back to the appeals court to rule on the Constitutional aspects of the case. The ruling, as stated, was only about whether the FCCs rule was arbitrary, which the Court said it was not. So, Fox still will have its day in court. In other words, the court didn't approve censorship, rather it stated that the policy, per the authority given to the FCC by Congress, was within the mandate of the FCC.

If you want to complain to someone, complain to Congress or wait until the case returns with an actual Constitutional question.

Finally, a sensible post.

Not to mention that everyone whining about "censorship" is probably completely cool with forbidding the use of the dreaded "n-word". Or at least forbidding its use by white people.

Most of these posters have no real concern for free speech -- they just like to hear f-bombs and see boobies, because it makes them feel "mature".

I'll remember your point of view the next time my TV turns itself on and starts cursing: "I have the right to not hear such vulgarity, yet I am powerless to stop the electric beast in my living room that spews it."

My biggest problem with all of this is that is seemingly assumes that television is not only a right but a true necessity to living. Hell, I think we should make everything full of vulgarity, just so the moronic parents who don't want to take a part in raising their children are at least forced to send them outside or at least give them a book.

this is another clear example of rights being eroded away.

when freedom dies for security, we become the enemy.

just like boiling a frog...the heat is turned up and before the frog knows it - it's dead.

I don't go to Joystiq to be preached to.
Gaming journalism always is trying to make megatons over molehills.

Here is a nugget of information, the rest of the world doesn't care. The economy sucks, Wars all over the place, and you cry about Supreme Court case that sort of kind of is on topic.

Stop Preaching . if no gaming news is up, than SHUT UP . I don't want to hear it.

Gaming is a big aspect of my life, but if I can't find a job and pay bills I will sell my video-games FIRST . If I am bombed by North Korea, or get sick of Swine Flu I won't care what happens at E3.

Gaming is entertainment, which is a LUXERY ITEM. Remember that.

Better megatons out of molehills than megatons out of un-detonated nuclear missiles, much less susceptible to sabotage.

Indeed, you're right in saying that games are among the less important things in life, but no one was saying that they weren't. No one was trying to say that the economy and wars, etc are insignificant either. The point is that this has the potential to turn into a serious free speech issue, which is just as significant as those other things. Whether or not you believe it will is a legitimate argument to have, but the important thing is that we keep watch in the event that it does.

It's hard to give advice without someone accusing you of "preaching," but I agree with Mr. Methenitis, the public has to remain vigilant if we are to keep our freedoms, especially at times like this with all the above mentioned calamities in the world.

first they came for the Jews, and I didn't speak up because I wasn't a jew.

then they came for the extremists, I didn't speak up because i wasn't an extremist.

then they came for me, and there was no one left to speak up.

Ignoring the issue of her policy towards media, Sonia has made racist comments in the past and been accused of having race sway her decision in cases in the past, as in http://en.wikipedia.org/wiki/Ricci_v._DeStefano. These facts alone should disqualify her from being given a lifetime appointment to the supreme court.

Ah, anti-game decisions made by old farts who've probably never played a video game in their old-ass lives.

Come on. Much as we may disagree witht he decision, the name calling doesn't help anyone.

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LGJ: Supreme Court Decision Doesn't Bode Well

The US is still a place that values free speech over arbitrary controls on games.

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