Monday, November 01, 2010

Video Games, Pornography And The Return Of The Miller Test

While American legal and political minds are, unsurprisingly, concerned with the midterm elections happening on Tuesday, the United States Supreme Court is hearing arguments the same day on a fairly important expression issue: whether the sale of violent video games can be restricted in the same way as pornography.

So who got the idea that violent video games should be treated like Hustler magazine? The government of California and a bunch of other states. They've been trying to get this on the books for much of the past decade.

What did video games ever do to them? In the middle of the last decade, California assemblyman Leland Yee, a child psychologist, picked up on an effort across several states to try to criminalize the sale of really violent video games. He says he did this because he believes ultra-violent games can harm kids in ways other forms of violent entertainment can't. He wrote a bill in 2005 that would fine a retailer $1,000 for selling really violent games to kids. California Governor Arnold Schwarzenegger signed it into law later that year.
The article notes that the California law's proposed standards for games that would be illegal for minors to purchase is eerily similar to the test for obscenity established by the U.S. Supreme Court in Miller v. California in 1973. It's worth noting that just about every important First Amendment case regarding obscenity hinges on the third element of the Miller test: "whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Although Brockett v. Spokane Arcades would eventually elaborate on the Miller test, stating that simply provoking sexual desire/excitement was not enough to qualify as obscene and that a truly obscene work would provoke "a shameful or morbid interest in nudity, sex, or excretion," even that qualifier has not stopped numerous communities from shutting down or censoring works they consider overly prurient, and not all of those shut down can afford legal action to prove in court that their works aren't shameful or morbid. Fans of free expression can only hope that the Supreme Court doesn't accept the state of California's arguments.

- Christopher Bird, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net

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