App. All Night with the ESRB

Announcer: Welcome to App. All Night with Johnny Dangerplain!

Audience *clapping*

Announcer: Ladies and Gentlemen, heeeeeeeeeeeeeeeeeeeeeeeere's Danger!

Audience *clapping*

Johhny Dangerplain: Thank you! Thank you!

Audience *clapping*

Johnny Dangerplain: Nintendo expanded the market with a product name that is a homonym for "we." It was such a success that Nintendo continued the not-so-subliminal subliminal naming by trying to woo the core market with a product name that is a homonym for "you." If the Wii-U is successful, Nintendo's next system will be named "Wii-R-A-Q-T."

Audience *laughing*

Johnny Dangerplain: Square Enix announced a remastered Final Fantasy X in HD. Let's see what celebrities had to say. Roll that tape!

Wakka Wakka Wakka! 

Audience *laughing*

I'll play it. It ain't easy being a ghost.

Audience *laughing*

YuRiPa! . . . YuRiLu!

Audience *laughing*

Needs more dark matter.

Audience *clapping*

Johnny Dangerplain: Finally, Microsoft is offering up an explanation for the death of Games for Windows Live. Microsoft claims it is a victim of its own success.

David Scratcher: A victim of its own success . . . .

Johnny Dangerplain: That's right. Microsoft says consumers were confused and thought Games for Windows Live was a Solitaire MMORPG.

Audience *laughing*

Johnny Dangerplain: Ladies and Gentlemen, we have a great show for you tonight. ESRB is here, ESRB!

Audience *clapping*

Johnny Dangerplain: Give it up for David Scratcher and the App. All Night Band!

Audience *clapping*

Johnny Dangerplain: We're back. Say, David, isn't your middle name Jones?

David Scratcher: Why yes, yes it is.

Johnny Dangerplain: That makes you D.J. Scratcher. I didn't know you were a D.J.!

Audience *laughing* 

David Scratcher: You didn't?! Well, I don't mean to brag, but I D-ed quite a few Js when I was young.

Johnny Dangerplain *cackling*: HA! 

Audience *laughing*

Johnny Dangerplain: Ladies and Gentlemen, ESRB!

Audience *clapping*

Johnny Dangerplain: Have a seat.

ESRB: Thank you!

Johnny Dangerplain: Believe it or not, I remember when you were born.

ESRB: I believe it; I grew up watching this show.

Johnny Dangerplain: Now, a lot of people know about you . . . 

ESRB: Right, because of the ratings on the front of games.

Johnny Dangerplain: But what they may not know is that you're much more than that. Your latest dropped a little while ago, is that right?

ESRB: That's right. The ratings are very broad brushstrokes, and many times people, parents especially, would like more. So now, the latest is on phones.

Johnny Dangerplain: Let's take a look.

Johnny Dangerplain: So what do we have here?

ESRB: Well, you can search by photo or by text.

ESRB: You can filter by platform and rating.

ESRB: You can look at the rating categories.

ESRB: Probably everyone knows about those. Here's where we get to the cool part. You can see what will trigger each content descriptor.

Johnny Dangerplain: That was pretty cool. You've even got the nitty-gritty in there, right?

ESRB: Yep, even the boring stuff no one would ever read is in there.

Johnny Dangerplain: Except David. David would read it.

Audience *laughing*

David Scratcher: You know me too well, Johnny.

Johnny Dangerplain: When do we get to the sexy stuff?

Audience *laughing*

ESRB: Here you go. You can also search by text and photo even when you are in the store!

Johnny Dangerplain: So I'm in the store, and my kid says he wants Gears of War 3. That's an educational game about mechanical engineering, right?

Audience *laughing*

ESRB: Right, so you would type in . . . 

Johnny Dangerplain: I can't find it. This is not making you look good.

Audience *laughing*

ESRB *embarrassed*: If you hit "more results," you will find it. There seem to be a lot of games about war.

Johnny Dangerplain: There it is!

ESRB: Right, so here you can see not only the rating and content descriptors, but you can see what content in this game triggered the content descriptors. 

Johnny Dangerplain: The kid is a chip off the old block, I guess.

Audience *laughing*

Johnny Dangerplain: So why is the description itself censored? Do we need an ESRB for the ESRB?

Audience *laughing*

ESRB: Well, I'm guessing there is an overlap between the type of people conscientious enough to search for detailed content descriptors and the type of people who don't care to see vulgar words in print. You can also send this detailed description through email, Facebook, and Twitter.

Audience: OOOOOOOOHH!

ESRB: You can also search by photo.

Johnny Dangerplain: Why would I ever need to search by photo?

ESRB: Well, it's not always obvious what the name of the game is especially if it's in a foreign language.

Johnny Dangerplain: Oh right, my kid likes the Japanese ones.

David Scratcher: Really?! He really is a chip off the old block.

Johnny Dangerplain: Games, David. Games.

Audience *laughing*

ESRB: So, here you have a game off of the shelf. Notice it's still in shrink-wrap, and that it's got a sticker obscuring part of the cover.

Johnny Dangerplain: So, should I unwrap it?

ESRB: No, no. You can still take a picture.

Johnny Dangerplain: Ok, here we go.

Audience: AAAAAAAAHH!

Johnny Dangerplain: ESRB, Ladies and Gentlemen!

Audience *clapping*

Johnny Dangerplain: We'll be right back.

A Rubric of Sense

Call of Duty: Modern Warfare 3

The most assailable portion of the majority opinion in Brown v. Entertainment Merchants Association, 564 U.S. ____ (2011), is the rebuttal of the dissenting opinion, which focuses on interactivity. The dissent posed that video games are distinguishable from other mediums because video games offer a higher level of interactivity, hence realism. As such, the dissent argued, previous freedom-of-speech cases concerning other mediums do not control the outcome of Brown.

In rebuttal, the majority likened video games to literature, and quoted Judge Posner of the Seventh Circuit stating that all literature is interactive, “[T]he better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.”


However, considering the yet unrealized promise of virtual reality, the majority opinion is not future-proof. Consider three scenarios that simulate a soldier in a war: 

Medal of Honor: Vanguard

1) a person reading a book written as if the reader is the soldier; 

2) a person in front of a screen, controller in hand, playing a first-person shooter video game as if she is the soldier; and 

3) a person in a virtual reality machine of science fiction acting as if she is the soldier. 

The majority argued the middle scenario is more like the former, while the dissent argued the middle is more like the latter. 

Just as science fiction soon gives way to science fact, the middle scenario will give way to the latter. Consequently, the distance between literature and video games on the spectrum of interactivity will grow. Most likely, courts will be the arbiter that distinguishes points on the spectrum, and courts will need to provide a stable framework to judge interactivity. 

The best way to judge interactivity is by sense. More interactive mediums will simulate more senses, and at a better quality, than less interactive mediums. A court's consideration of the sense scale should be guided by our own experience as a species, giving priority to sight, touch, and sound over smell and taste. Considering the examples above:

Red Orchestra 2: Heroes of Stalingrad

1) This type of interactivity involves the “simulation” of every sense, but at such a low level that it may not be categorized as simulation at all. For example, the text of the book will describe what the soldier saw, touched, heard, smelled, and tasted. However, the reader is required to draw upon her own experiences to translate the text into simulations of each sense. Better terminology may be that the simulation is not direct, but indirect. That the reader is seeing the text, touching the book, hearing the pages turn, etc. is of no moment because those experiences are not part of simulating the soldier.

2) This type of interactivity involves direct but partial simulation of sight and direct simulation of sound. The simulation of sight is partial because the player does not see the screen in her peripheral vision. This scenario does not involve the simulation of touch because the player is not emulating the movement of the soldier nor experiencing what the soldier touches. That the player is touching the controller is of no moment because that experience is not part of simulating the soldier. 

3) This type of interactivity involves direct simulation of every sense. The only difference between this scenario and the actual soldier in the war is the player’s cognitive certainty of playing a game. Such certainty will cause failure in eliciting honest reactions to the simulation in some players. Circularly, this difference appears similar to a poorly written book failing to draw in the reader via failure to elicit honest reactions from the reader such as identifying with the characters, experiencing joy and suffering along with the characters, and all the other reactions mentioned by Judge Posner. Will such similarity be enough to support the majority’s opinion in Brown as applied to virtual reality? No because while virtual reality may illustrate the way the most imaginative are drawn into literature, laws are interpreted as applied to the most average. Among the most average, more will be drawn into virtual reality than literature.

Brothers in Arms: Double Time

Armed with a rubric of sense, courts will be prepared for the more stimulating simulation to come.

In Brief

On June 27, 2011, the Supreme Court of the United States decided Brown v. Entertainment Merchants Association, 564 U.S. ____ (2011). At issue was California Assembly Bill 1179 (2005), Cal. Civ. Code Ann. §§ 1746–1746.5 (“Act”), which prohibited the sale or rental of violent video games to minors. The Court held the Act did not comport with the First Amendment, affirming the Ninth Circuit.

Super Columbine Massacre RPG!

The Court began by noting that the First Amendment primarily protects political speech, but that it is difficult to distinguish politics from entertainment. Next, the Court stated that the principle of freedom of speech does not vary for new communication mediums. As such, because video games communicate ideas, they are protected by the First Amendment.

The Court next highlighted examples of speech that are not protected by the First Amendment: obscenity, incitement, and fighting words. A legislature, the Court explained, cannot add new categories to the list of unprotected speech because such an addition would be against the judgment of the American people as embodied by the First Amendment.

California argued that violent video games are obscene, and hence unprotected, but the Court, reviewing the history of obscenity, determined that the obscenity exception only applies to depictions of sexual conduct.

The Court next recounted a history of vilification of new communication mediums, and drew to video games a direct line from dime novels through motion pictures, radio dramas, comic books, television, and music lyrics. California argued that the interactive nature of video games distinguished them from previous communication mediums, but the Court dismissed the argument by stating that literature has been interactive since at least 1969 when the first choose-your-own-adventure book was published.

RapeLay

The Court rejected the notion that the content of the ideas communicated by video games, no matter how horrible or disgusting, was a valid basis for restricting their expression.

Consequent to finding video games subject to the protections of the First Amendment, the Court applied the strict scrutiny test to the Act. The strict scrutiny test required California to demonstrate that the Act was justified by a compelling government interest and was narrowly drawn to serve that interest. However, California was unable to show a direct causal link between violent video games and harm to minors. California was also unable to show that children’s exposure to violence in video games was distinguishable from exposure to violence on television, which was not similarly restrained by the Act. As such, the Court found the Act underinclusive when judged against its asserted justification. The Court reasoned that an underinclusive law cannot be narrowly tailored, hence cannot pass strict scrutiny, and hence cannot comport with the First Amendment.

The Court outlined the ESRB rating system, and the Court quoted a FTC report finding that the video game industry outpaces the movie and music industries in restricting target marketing of mature-related products to children; clearly and prominently disclosing rating information; and restricting children’s access to mature-related products at retail. As such, the Court reasoned the Act was not justified by a compelling interest, did not pass strict scrutiny, and hence did not comport with the First Amendment.

JFK Reloaded

The Court praised the good intentions behind the Act—protection of minors—but noted that constitutional limits on government apply to even the most well-intentioned act.

One Justice concurred separately, the concurrence joined by the Chief Justice. One Justice dissented.