I'm hoping to get some input from readers as I look to finish up an amicus brief for the forthcoming Schwarzenegger v. EMA video game case. (Respondent briefs are due in mid-Sept and the State of California just filed its brief with the Court today). You will recall that the Supreme Court accepted the case for review in April, meaning it will be the first major case regarding video game speech rights heard by our nation's highest court. It raises questions about the First Amendment status of games and what rights minors have to buy or play "violent" video games. One section I hope to include in the brief I'm working on deals with how other forms of media content are increasingly intertwined with video game content. In it, I explain how video games are less of a discreet category of visual entertainment than they once were. I'd welcome ideas for other examples to use relative to the ones you see below.
I begin by discussing games that were inspired by major motion pictures, such as both the recent Star Wars and Lord of the Rings movie trilogies, for example. I also note that many games were inspired by notable books, such as the LotR games being inspired by Tolkien, and The Godfather video games that were inspired by Mario Puzo's novel of the same name. I also make mention of The Terminator movies starring California Governor Arnold Schwarzenegger, which inspired a wide variety of video games, many of which featured his likeness.
More importantly, I highlight how many video games are now inspiring movies, music, books, and comics, including: Prince of Persia, Max Payne, Resident Evil, Tomb Raider, Doom, Final Fantasy, Halo, and Gears of War. The characters and storylines in the books, comics, and movies based on these games often closely track the video games that inspired them. Increasingly, therefore, games are developed along parallel tracks with these other forms of content. Thus, to regulate games under the standard California proposes in this case raises the question of whether those other types of media should be regulated in a similar fashion. Should every iteration of the original game title be regulated under the standard California has suggested if those books, comics, or movies contain violent themes?
If so, it raises profound First Amendment issues--especially for novels and comics. Moreover, to not regulate those other forms of media while regulating game content raises its own set of First Amendment issues. "[T]his type of facial underinclusiveness undermines the claim that the regulation materially advances its alleged interests," argued the U.S. District Court for the Middle District of Louisiana in ESA v. Foti (2006). After all, what good does it do to merely regulate "a tiny fraction of the media violence to which modern American children are exposed" if all other forms of expression remain available? (See, AAMA v. Kendrick, 2001)
So, again, I'd welcome more (or better) examples to include in this short section of my brief to help me drive this point home to the Court.
I might also make mention of another type of entertainment that could be impacted by this decision and which no one else seems to be thinking about: theme park attractions. Ironically, just a few months ago, my wife and I took the kids on a vacation to Universal Studios in Orlando, Florida. One of the attractions that my kids -- ages 8 and 5 -- enjoyed most was "Terminator 2: 3D." It was their second favorite after the spectacular SpiderMan ride.
But here's the thing about that Terminator 2 attraction at Universal Studios: it was a surprisingly intense and seriously violent experience. The show features cinematic action combined with real-life actors who run throughout the arena firing shotguns at cybernetic robots that come out of the walls or floors. During some segments of the show, water sprays the audience, smoke fills the chamber, and the seats and floors vibrate violently as battles take place on stage and on-screen. The actor hosting the show is also choked to death by a cyborg! [see video below at 2:20 mark.]
Now, here's what's most interesting to me about the "Terminator 2: 3D" attraction:
Regardless, I think this begs a serious question: If Gov. Schwarzenegger -- or any other lawmaker for that matter -- would regulate "violent" video games on the grounds that the experience is too intense and damaging for kids psychologically, then why not regulate theme park attractions on similar grounds? The "Revenge of the Mummy" ride at Universal Studios (also based on a movie) serves as another example. At one point you are sent to Hell and placed in an imaginary tomb while flames shoot out the walls all around you so that you feel like you are going to be cremated alive. You can literally feel the heat from the flames on your face. You cannot possibly convince me that there is any video game experience as frightening as that. But all the kids went wild! My daughter made us ride it with her three times! (Our 5-yr old boy couldn't go on that one because of a height restriction, but there was no age-based or other type of restriction / warning on the ride.)
Anyway, I welcome more input here about other rides or attractions that are "violent" and that could be impacted by an adverse, anti-free speech ruling by the Supreme Court in the Schwarzenegger v. EMA case. (I've also thought about discussing how many kids are in the audience at boxing, MMA, wrestling matches and other violent sports).
In my opinion, it is up to parents -- not the government -- to determine what games, movies, music, books, magazines, and theme park attractions that kids get to see, hear, and experience. I can appreciate that some parents have heightened sensitives about some of these things, but they have the ability -- and the responsibility -- to make appropriate media determinations for their kids. We shouldn't expect The Terminator Arnold Schwarzenegger to be our national nanny.