The main reason that legislation against games keeps on failing is because of the following reason: video games fall under the protection of free speech. In order to regulate speech the government must meet the following "strict scrutiny" test:

•there needs to be compelling state interest for their legislation
•the legislation needs to make use of the least restrictive means
•there can't be any censorial intent.

Needless to say, very little such legislation actually meets the test's requirements, if for no other reason than the government has yet to be able to prove the "harmful" nature of games on children. Because of this lack of proof, the courts are starting to get sick and tired of dealing with these frivolous laws (as was recently evidenced when a judge in Louisiana delivered a scathing criticism of one he struck down as unconstitutional).

This lack of hard evidence, of course, flies in the face of the junk science which is constantly being touted by religious groups who are constantly trying to "protect the children" by trying to censor anything they deem offensive. It was that catchphrase which Walters pointed out, citing that if you claim something will protect children then at least a couple of politicians will get behind your cause in an attempt to garner some good PR.

Since every legal attempt at censorship has failed, directly censoring legislation is on the decline (Walters stated that 2005-2007 were the years where censoring games was a popular topic amongst lawmakers, but it's now waning in its appeal). However, the latest attempt by the government to make gamers suffer is popping up in the form of "sin taxes" (taxes on things people consider to be vices... you know, like those on alcohol and cigarettes), which probably will probably be defeated before they get passed into law -and subsequently killed in courts- due to the fact that tax increases are rarely popular.

As was the case last year, much amusement was had by everyone when Walters recapped the antics of Jack Thompson, and then we all moved on. But only after a lot of laughing.

Finally, the talk was wrapped up by what the industry needs to look out for in the future. We were all warned that the history of defeat has yet to deter those who champion censorship, and it's only a matter of time before these proponents end up tweaking their legal strategies to come after the industry in a way none of us are expecting. This is especially important as 2008 is an election year and sex and violence make attractive targets for those on the campaign trail. As a result, the industry at large needs to be wary and not get swept up in a candidate's attack plan. Not only that, but the winner of this year's election will determine the policy of the federal government's involvement with games. As a result, Walters once again explained that the industry in general needs to build up a bulwark defense system, particularly in the form of extensive studies which they can use to debunk the "evidence" presented by their opponents when they show up in court. So far, groups like the ESA have had success being reactive, he claimed; now they need to start being proactive in their strategies.

However, the future of games and censorship aren't just limited to the United States, as the recent legal battles involving the game industry in Germany, Australia, China, Brazil, and India were also highlighted. The final point of today's speech pointed out that, while our country is not alone in its fight to preserve creative expression in video games, what works in other countries will not be tolerated here because our constitution provides us the greatest protection of artistic freedom.

Boy of Tomorrow
Posted to GDC, Miscellany on 20 February 2008
Other stuff like this: censorship, game developers conference, gdc, gdc 2008, larry walters, lawyer, speech