Once more into the censorship breach my friends. Once again it is the California Assembly that is seeking to require the labeling of violent videogames and restrict their sale to minors, see, AB450. The bill is scheduled to be considered next week. The Int'l Game Developers Assoc. is asking for citizens to write their state representatives in opposition to the bill (AB450 Letter).
You know, one of the things that I don't like about this bill is not only is it anti-free speech, but it is incredibly poorly drafted. It is like adding insult to injury. Geez.
As I've done before, another obsessively annotated look at this farcical (and free speech attacking) bill...
BILL NUMBER: AB 450 AMENDED
AMENDED IN ASSEMBLY MAY 2, 2005
AMENDED IN ASSEMBLY APRIL 21, 2005
INTRODUCED BY Assembly Member Yee
Principal coauthor: Assembly Member Emmerson
Coauthors: Assembly Members Baca, Coto, Leslie, Montanez, Mullin, and Vargas
Coauthor: Senator Kuehl
FEBRUARY 15, 2005
An act to add Title 1.2A (commencing with Section 1746) to Part 4 of Division 3 of the Civil Code, relating to violent video games.
LEGISLATIVE COUNSEL'S DIGEST
AB 450, as amended, Yee. Violent video games: sales to minors.
Existing law regulates the sale of certain merchandise, such as political items and sports memorabilia. [And reproductions of "fine art." See, the code here: California Civil Code]
This bill would prohibit the sale or rental [Note: But it would still be legal to give them and to play them.] of violent video games, as defined, to persons who are 16 years of age or younger and require violent video games to be labeled as specified. [Why does the phrase "Scarlet A" come to mind?]
The bill would provide that a person who violates the act shall be liable in an amount of up to $1,000 for each violation.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
The Legislature finds and declares all of the following:
(a) Exposing minors to depictions of violence in video games, [ Hmmm, exposing doesn't necessarily mean that minor "interacts with the game. Mere exposure is enough, yet it isn't prohibited. Moreover, there is little explanation of why exposure in this context is different from exposure in other contexts, such as movies.] including sexual and heinous violence, makes those minors more likely to experience feelings of aggression, [ Poorly thought out and drafted legislation causes me to experience feelings of aggression, perhaps we should outlaw that.] to experience a reduction of activity in the frontal lobes of the brain, [Brain damage! Call the Surgeon General! Actually, they ought to call the US Army, which prodces the violent America's Army videogame.] and to exhibit violent antisocial or aggressive behavior. [Somehow I doubt that the studies that allegedly show this used the convoluted, nay, baroque definition of violent videogame used in this legislation. Which would seem to reduce the value of these studies even further.]
(b) Even minors who do not commit acts of violence suffer psychological harm from prolonged exposure to violent video games.[They're traumatized, they are. One wonders, however, why sitting and mindlessly watching extreme violence on television or in the movies without videogame interaction doesn't create the same level of psychological harm. Even more so, when one reads graphic depictions of violence in books, where the minor must use their imagination to picture the violence. Once you're imagining violence, all on your own, what sort of damage is done? Of course, one might want to consider Steven Johnson's thought experiment regarding what these legislative efforts might look like if books were invented after videogames (Everything Bad Goes Public).]
(c) The state has a compelling interest in preventing violent, aggressive, and antisocial behavior, and in preventing psychological or neurological harm to minors who play violent video games. [Ah, a compelling interest. First Amendment challenge protection bait. However, just because the legislature says this will help doesn't make it true. In fact, this legislation is full of more loopholes than the average tax code.]
SEC. 2. Title 1.2A (commencing with Section 1746) is added to Part 4 of Division 3 of the Civil Code, to read:
TITLE 1.2A. VIOLENT VIDEO GAMES
For purposes of this title, the following definitions shall apply:
(a) "Minor" means any person who is 16 [Why sixteen? What is so special about sixteen as opposed to all the other age distinctions the law makes?] years of age or younger.
(b) "Person" means any natural person, partnership, firm, association, corporation, limited liability company, or other legal entity.
(c) "Video game" means any electronic amusement device that utilizes a computer, microprocessor, or similar electronic circuitry and its own monitor, or is designed to be used with a television set or a computer monitor, that interacts with the user of the device [Modern DVD players would seem to meet this definition. After all, many DVDs now give you the ability to see alternate takes. If one of the alternate takes is more violent than another, we may have a problem.].
(d) (1) "Violent video game" means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting [What does it mean to do these things in a videogame? It may seem clear in a First Person Shooter, but is the player responsible for murders in SimCity because he did not fund the virtual police enough? Is directing a squad or company of virtual soldiers in a virtual battle the same as killing?] an image of a human being, [Oh, yeah, feel free to depict and encourage nuclear war and crashing planes into the World Trade Center, as long as you don't depict an image of a human being. Extreme violence, not directed to images of humans, is a-okay! Torturing virtual animals, apparently, is not a problem. Before we move on, however, note that the image must be of a human being. Later on, the law will add "characters with substantially human characteristics," but they've just been excluded here.] if those acts are depicted in the game in a manner that does either of the following:
(A) Comes within all of the following descriptions: [The Miller Test, kind of, only as applied to violence and minors. If something is literally physically damaging, why the Miller Test? Does physical damage suddenly become okay if something has serious artistic merit?]
(i) A reasonable person, considering the game as a whole, would find [sic] appeals to a deviant or morbid interest of minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics [Where did this "substantially human characteristics" come in? The controlling sub-paragraph above only speaks about "an image of a human being." There is no mention of "characters with substantially human characteristics." Can't the author of this atrocity even keep things relatively straight across a few paragraphs? In any case, what the heck does "substantially human characteristics" mean? Does it mean the image is substantially human in form (bipedal humanoid) or does it mean substantially human emotionally or something? How non-human must an image be before I can torture it?] in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors. [This basically comes down to, "can an ambitious district attorney assemble a conservative enough jury and scare the pants off them?" ]
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value ["It causes the game"? Huh? Does this mean that a game that would otherwise have serious literary, etc., value suddenly no longer has value due to its violence? Are juries to be editors now? "If you just remove this scene of violence, you'd have literary value, but with it, the work is valueless." Will this also mean we will see the sort of thing pornographers used to do, have some pseudo "educational" element at the beginning of the work?] for minors. [Huh? Something can have serious literary value, but not for minors? "The Mona Lisa is great art, but I'm afraid minors just won't get anything from it." I'm really trying to wrap my head around how this will be determined.]
(2) For purposes of this subdivision, the following definitions apply:
(A) "Cruel" means that the player intends [Player intends? The player could "intend" to beat the crap out of the opposition paddle in a game of Pong by bouncing a virtual dot at it, but that doesn't mean there is anything wrong with the game.] to virtually inflict a high degree of pain by torture or serious physical abuse of the victim [Damn those realistic physics and reaction models! Violence must be cartoonish! Sure, you could shoot a character, but they should just lay down and die, or something, because if you show the actual outcome of violence, the resulting pain and concomitant physical abuse, then the physics engine will inevitably allow one to torture the targets. We wouldn't want realistic depictions of violence. Use a flamethrower and the character should quietly turn to ashes, not run screaming naked down the virtual road.] in addition to killing the victim. ["In addition to killing the victim"? Did anyone read this damn thing? Apparently torture which does not lead to death is okay, because the torture would not be "in addition to killing the victim."]
(B) "Depraved" means that the player relishes the virtual killing or shows indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim. [Whoa, wait a minute. How is the game designer going to take this into account? I relished blasting Space Invaders. Who can anticipate what the heck players will relish?]
(C) "Heinous" means shockingly atrocious. [Not just "atrocious," which means "extremely evil or cruel; monstrous", but "shockingly atrocious." What other sort of atrocities are there? Are some atrocities not shocking?] For the killing depicted in a video game to be heinous, it must involve additional acts of torture or serious physical abuse of the victim as set apart from other killings. [Isn't this getting a little repetive? What other killings? Huh? Anyway, of course, we don't want to look at the purpose of the violence. Violence that represents a particular moral choice is bad if its too graphic. However, violence that isn't graphic, but otherwise is meaningless, is okay. That's a great lesson.]
(D) "Serious physical abuse" means a significant or considerable amount of injury or damage to the victim's [virtual] body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty [Here's a metaphysical question: What the heck does this mean with regard to virtual characters? Is losing a powerup "substantial impairment of the function of a bodily member"? If a virtual character has to respawn, is that the same as "death" or "unconsciousness"? Does a virtual character still feel pain if you shoot it, but there is no animation for "pain"?]. Serious physical abuse, unlike torture, does not require that the victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing. [Again with the player intent. Someone has been spending too much time with the law regarding actual torture. Seriously, that seems to be where this language comes from. See, 18 USC 2340.]
(E) "Torture" includes mental as well as physical abuse of the victim. In either case, the virtual victim must be conscious of the abuse at the time it is inflicted; [Metaphysical Question #2: What does it mean for a virtual victim to "be conscious"? Can one virtually torture a virtual zombie? Does this law only apply to AIs? (I might actually go with that.) Once again, someone has been blindly borrowing language from actual torture statutes.] and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim. [No Abu Ghraib simulations, apparently.]
(3) Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, [No BFGs?]
needless mutilation of the victim's body, [No rag doll physics?]
and helplessness of the victim. [Given the state of artificial intelligence in most videogames today, one could argue that all the virtual mooks are helpless.]
(a) A person may not sell or rent a violent video game to a minor. [But giving a violent videogame is just dandy. This is pretty darn strange. I can't sell alcohol or cigarettes to a minor, nor can I give alcohol or cigarettes to a minor. But, I can give physically harmful videogames to minors. Call me crazy, but this seems to make the law substantially underinclusive.]
(b) Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence that a purchaser or renter of a violent video game was 17 years of age or older shall be a defense to any action brought pursuant to this title. That evidence may include, but is not limited to, a driver's license or an identification card issued to the purchaser or renter by a state or by the Armed Forces of the United States.
(c) This section shall not apply if the violent video game is sold or rented to a minor by the minor's parent, grandparent, aunt, uncle, or legal guardian. [Apparently the government feels it is appropriate for parents to sell their children physically harmful materials. Actually, if the legislature really believes these games are so harmful, they should be locking up parents who let their kids play under charges of child abuse. If what they actually mean is that it is okay for a parent to buy their kid a violent game, it might be interesting to note how many violent games are purchased by adults for kids. I would expect that there is a healthy percentage who do (gov't and industry figures range from about 80% to 90%), which further reduces the utility of this censorship.]
Each violent video game shall be labeled as follows: "This game may not be sold to anyone under 17 years of age." [What? No explicit instructions on how prominently the game should be labeled? How big the type must be? I have to say, this is quite sloppy legislation.]
Any person who violates any provision of this title shall be liable in an amount of up to one thousand dollars ($1,000), or a lesser amount as determined by the court. However, this liability shall not apply to any person who violates those provisions if he or she is employed solely in the capacity of a salesclerk or other, similar position and he or she does not have an ownership interest in the business in which the violation occurred and is not employed as a manager in that business.
A suspected violation of this title may be reported to a city attorney, county counsel, or district attorney by a parent, legal guardian, or other adult acting on behalf of a minor to whom a violent video game has been sold or rented. A violation of this title may be prosecuted by any city attorney, county counsel, or district attorney. [This is known as the "ambitious conservative attorney vote-getting clause."]
The provisions of this title are severable. If any provision of this title or its application is held to be invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.