Overstated case?

Technology Review - Power to the Players

Suppose a Federal Judge was asked to determine whether books were protected by the First Amendment. Suppose instead of seeking testimony from noted literary scholars, examining the historical evolution of the novel, or surveying the range of content at the local bookstore, the judge choose four books, all within the same genre, to stand in for the medium as a whole. Better yet, suppose the judge didn't even read the books and instead simply listened to the prosecutor read excerpts aloud. Would this seem remotely adequate?

Thus begins a June 7, 2002, artitcle posted on MIT Technology Review's online site. It refers to an April 19, 2002, finding by U.S. District Judge Stephen N. Limbaugh, Sr., (related to Rush?) that video/computer games contain "no conveyance of ideas, expression or anything else that could possibly amoun to speech" and they therefore were not entitled to free speech protections under the First Amendment.

Sounds rather ominous, as this article in Salon noted:

...that could be a disaster for anyone who wants to see games evolve into a medium every bit as culturally relevant as movies or books. It is, of course, indisputable that the world of gaming is replete with titles that have little redeeming value, just as it is true for every other artistic medium. But as Medal of Honor and other games demonstrate, computer gaming has created a new means of conveying complex, relevant ideas. One more uninformed ruling, and the potential of this medium could be curtailed even further, by legislators with elections to win, and ideologues who've pincered it from both sides of the political spectrum. The stakes really are the future of free expression; and as this ruling makes plain, the need for the game industry to mount a preemptive attack is past due. The time for a counterstrike is now.

Beauty, a call to arms!

What seems lost in both of these articles, however, is the St. Louis, Missouri, ordinance in question. Both briefly state that the ordinance restricts/forbids the sale of explicitly violent or sexual games to minors (under the age of 17), and I have to ask, "And that's a problem how?" Isn't that effect imposing a ratings system on computer games? This ordinance, as briefly described, seems nothing more than saying minors under the age of 17 can't buy games with excessive violence or sex.

Sounds like an "R" rating for a movie, does it not? Does the "R" rating amount to a challenge to free speech? Not so far.

In fact, at Game Industry News, an editorial on the finding reads, in part:

A federal judge’s refusal to grant First Amendment protection to violent video games has foiled the Interactive Digital Software Association’s first effort to block a St. Louis ordinance restricting access to the games, but has not stopped the fight.

...

Judge Stephen N. Limbaugh on April 19 denied IDSA’s motion for a summary judgment that the ordinance is an unconstitutional infringement of First Amendment freedom of expression. The judge, of the U.S. District Court for Eastern Missouri, ruled the games he examined did not meet standards for meaningful expression.

The key question that I'm addressing is this:

He also ruled that the ordinance being challenged was not unconstitutionally broad or vague, which in effect made the issue of whether games are constitutionally protected speech moot. [Emphasis mine.]

This appears to be supported by this paragraph within the CIN editorial:

The St. Louis County ordinance, passed in October 2000, is similar to the Indianapolis ordinance restricting access to violent games. Citing school shootings in Columbine, Colo., Jonesboro, Ark., and Paducah, Ky., as evidence of the harmful influence of the games on minors, the county prohibited sale or rental of home video games rated M or AO by the Entertainment Software Review Board to persons under 17 without parental consent. Similar restrictions were placed on access to arcade games rated Red by the American Amusement Machine Association. The law goes into effect in July.

Now, this notion that Columbine et al is "evidence of the harmful influence of games" aside, note that the ordinance specifies ratings voluntarily used by the gaming industry itself. It does not impose a new rating system. It takes a system already in place and says that if you rate a game M or AO, etc., then resellers shall not sell it to minors under the age of 17.

Again, where's the beef? Where's the Constitutional issue?

Much has been made recently that people who overstate their case actually undermine their case. There is already a 7th Circuit Court decision (out of Indianapolis) that games are entitled to First Amendment protections, a decision made at a higher court level than Limbaugh's.

The judge’s finding that the ordinance was narrowly crafted to advance a compelling state interest, and thus allowing regulation of protected speech, made the issue of First Amendment protection irrelevant, Lowenstein [president Interactive Digital Software Association] said.

"In short, nothing we could have done on the speech issue would have changed the outcome of this case at the district court level," he said.

You should be able to find Limbaugh's decision here. Maybe there's more to this than has been said thus far. If so, I haven't see it yet.