Gaming Grows Up Through Supreme Trial by Fire

Gaming Grows Up Through Supreme Trial by Fire

Story tools

A A AResize



OAKLAND, Calif. – By beating the state of California in the Supreme Court recently, the video game industry went through a trial by fire – a probate – and came out victorious and all grown up.

During my senior year in college at UC Santa Barbara I was invited to a probate. The event was held in a public area on campus with a modest group of people in attendance. After a few minutes of waiting, five girls marched out from behind a building and lined up in front of us. Dressed in sweatshirts and jeans, they were accompanied by members of a sorority whose name I can’t mention.

I watched for an hour as these five girls performed various tasks under the admonishment of other fraternity and sorority members. Those ladies were pledging, obviously. I witnessed their coming out ceremony that day, the end of a punishing initiation process where they proved to a group of peers that they had the qualities to be a member of their organization.

That was twelve years ago, but the memory came rushing back to me when I read that the Supreme Court ruled in favor of the video game industry, striking down a California law that put restrictions on the sale of violent video games to children.

If you peruse through the news reports, you’ll get the gist of the ruling but you might miss the more important details. First, this court battle originated in 2005 when the California State Legislature hit the young and impetuous gaming industry over the head with Assembly Bill 1179. To be clear, the Supreme Court’s role in all of this was to settle a misunderstanding between former California Gov. Schwarzenegger’s administration and the Entertainment Merchants Association (EMA) that argued that video games were protected under the First Amendment.

Second, it’s important to mention that this decision does not mean that children are allowed to walk into Wal-Mart with three “Jackson’s” and come out with an M-rated copy of this year’s raunchiest title, Duke Nukem Forever.

Retailers have policies that prohibit minors from buying adult-rated video games without a parent being present as required by the EMA in partnership with the Entertainment Software Ratings Board (ESRB).

The Federal Trade Commission issued a report this year that stated: "Of the three entertainment sectors [movies, music and video games], the electronic game industry continues to have the strongest self-regulatory code." The efforts by the industry have resulted in an 87 percent success rate in preventing minors from purchasing adult-rated video games. Although the industry has released some questionable material over the last few years the retailers are doing a pretty good job of keeping them away from minors.

What AB 1179 would have done is made violent video games on the same level as pornography. Imagine gamers sliding behind a white curtain in Best Buy to purchase a copy of Call of Duty. Your local 7-Eleven would have to place covers over the game boxes with only the title peeking out. Retail stores like Gamestop and EB Games would have to cover all of their windows and advertise their wares through neon signs that read: “Violent video games sold here.” Sure, I’m being facetious but the point – and the reason California lost – is that violent video games should not fall under the same category as pornography.

Most gamers – even the most conservative of their lot – agree that video games deserve the same First Amendment rights as movies, music or books. They understand that retailers do a good job of regulating the sales of these games to minors. Finally, they understand as connoisseurs of this new entertainment medium that most violent games have a certain cartoon-like quality about them that is similar to Grimm’s Fairy Tales, a book that we read to our children, as Justice Antonin Scalia pointed out at the trial.

So, what was Brown vs. EMA really about?

In February, I wrote a piece on my blog questioning the lack of decency in a game called Bulletstorm. Although developer People Can Fly didn’t have the marketing budget of the Grand Theft Auto or Mortal Kombat franchises -- games that have a reputation of excessive violence and gore in the eyes of the general public – their game received a lot of attention for having a game play aesthetic that rewarded the player for coming up with the most creative and humiliating ways to kill a virtual enemy. “Now, I know what you may be thinking if you haven’t heard of this game yet: Don’t all of these games reward you for killing – creatively, that is? And you would be mostly right. There are a lot of games that promote, encourage, reward and challenge the player to kill in many creative ways…for fun.

“However, Bulletstorm is unique. This is the only game I can recall where you can actually [as producer Cliff Blezinski put’s it] “blow out another man’s a-- hole.””

I’m no stranger to violent video games, but I was bothered by this title because it was indicative of the need for the video game industry to grow up. I went on to write, “Video games have a well-deserved reputation for being a playground of male adolescent power fantasies. Perhaps this was OK 15 years ago when the industry was still young -- just about to hit puberty. But, it’s a full-grown adult now, influential and hungry. The problem, I think, is the industry doesn’t want to grow up. It wants the benefits of an adult but not the responsibilities.”

In 1985 former vice president Al Gore’s wife, Tipper Gore, formed the Parents’ Music Resource Center. The focus of the PMRC was to increase parental control over children’s access to violent or sexually aggressive music. Gore famously came up with the idea after she heard her daughter listening to Prince’s classic song Darling Nikki, which contains references to sex and masturbation. Eventually, the campaigns led to a Senate hearing. The PMRC won, and the music industry agreed to start putting parental advisory labels on music with adult language.

Likewise, in 1990, shortly before hip-hop became the most popular and lucrative form of music in the country, a district court judge ruled that rap group 2 Live Crew’s album As Nasty As They Wanna Be was obscene and illegal to sell. Two years later, the U.S. Court of Appeals overturned the decision, and the Supreme Court refused to hear an appeal.

The music of rock and hip-hop shared the same type of edge that the video game industry now has. It’s a new form of entertainment born out of a sub-culture that is not easily understood, but no longer easy to ignore. Like early rap artists who used to perform in warehouses and made music in their basements, video games are no longer the entertainment of basement-dwelling reclusive nerds. Publisher 2K Games plastered most major cities with billboards of L.A. Noire this year prior to its release in May. Last fall, Kobe Bryant and Jimmy Kimmel starred in a Call of Duty commercial. Video games have become a part of our culture, and they did so without the permission of American parents.

I believe Brown vs. the EMA was akin to a probate, a coming out/initiation ceremony for the video game industry. Just as the PMRC did for the rock and pop bands and the state of Florida did for rap music, California demanded that they prove their value. For now, the video game industry has done just that. Whether the industry continues to act like an adult and self curbs titles like Bulletstorm remains to be seen.

Damon Packwood is an educator, visual media enthusiast, and blogger who lives in Oakland, Calif. Read more of his writing on gaming at