Music or games – free speech is free speech, say legal, advocacy, and industry groups. Photo (CC-BY-SA) FHKE.
A California ban of the sale of violent video games to minors may not seem relevant to the world of music on first blush. But the music industry, joining everyone from software makers to legal groups to state Attorneys General, feels otherwise. Overzealous restriction of the sale of games, these groups say, is tantamount to an attack on rights of free speech protected by the United States Constitution. And while the California law would make a separate set of rules for gaming, the message from the music industry, as others, is clear: diminish the freedom of one medium, and you diminish us all.
In addition to the National Association of Broadcasters, The Recording Industry Association of America (RIAA) joins an amicus brief with booksellers, publishers, novelists and writers, music retailers, “amusement and music operators,” and the Recording Academy, jointly filing their protests with the US Supreme Court.
Amongst the authorities cited in that brief: reviews of the game Halo, histories of banned books and laws concerning free speech, violence in Elizabethan England, and Homer and Aeschylus. (Yes, Homer’s Iliad Book 13 sits alongside Grand Theft Auto.) Even Punch & Judy, Tom and Jerry, and Little Red Riding Hood make an appearance. So does the Bible.
Of course, the music industry is sensitive to these attacks, having been at the business end of similar, ill-fated litigation. Books, magazines, newspapers, television, broadcasting, music – there simply isn’t a medium in America that hasn’t had to fight off similar complaints.
There are various arguments for whether or not gaming is reviewed as art, though here, there’s enough legal precedent to assume they are, in the eyes of the law. More telling, however, is the observation that “protection accorded to depictions of violence did not turn on … merit.” (The case cited in the brief protected gory, grisly images and descriptions of crime, which New York law tried to ban in the 1940s. At the time, the Supreme Court conceded it couldn’t understand why you’d want such a thing, but that merit was not the basis for the ruling.)
And that’s the bottom line: free speech is not about merit, or one medium or another, just as this Supreme Court decision is as much about music or words as it is about games.
The precedent, legally, is clear, leaving only the “newness” of the technology as a defense. Here’s the brief’s response to that issue:
"California also appears to suggest that the new technologies represented by video games require a reassessment of First Amendment principles. Technological change usually causes fear and uncertainty.In the twentieth and twenty-first centuries, technological change has repeatedly revolutionized entertainment media and communications, as well as the storage, retrieval, and distribution of information. Each of these technological advances—movies, television, the Internet, and now handheld, interactive electronic video games—has brought with it the fear that the new technology would corrupt the young. But there is no reason to permit fear of novel technologies to diminish fundamental constitutional rights such as the First Amendment."
For any artist, for anyone in the business of expression, this is a case to watch, at least in regards to US law.
More reading:
Merit Briefs/Amicus Briefs, Schwarzenegger, Gov. of California v. Entertainment Merchants, Assn., Docket No. 08-1448 [American Bar Association]
Merit Briefs/Amicus Briefs, Schwarzenegger, Gov. of California v. Entertainment Merchants, Assn., Docket No. 08-1448 [American Bar Association]
