The US violent games case: Americans are from Mars, Europeans are from Venus

Earlier this month, the US Supreme Court handed down its decision in Brown v EMA, AKA the Californian ‘violent’ games law case, AKA Arnie vs all gamers, everywhere.  The law, if upheld, would have given lawmakers the ability to ban certain games and place stringent requirements on others. However, the US Supreme Court struck down the law on the basis that games are protected by the free speech provisions of the US Constitution and that the Californian law was unconstitutional.  So far, so good.

It’s fair to say the case provoked a fair bit of excitement in the US, with everyone from the BBC to Fox News commenting on it. There was much talk in the US about the constitutional importance of video games being protected by the First Amendment (the bit of the US Constitution which sets out the right to free speech) as well as the commercial significance (the games industry would be heavily affected if the violent games law had been permitted). If you want to read more about the specifics of the case, I recommend you read Tommy Rousse’s piece on it at Killscreen.

What I want to talk about today though is the European perspective on this case, which I can sum up as follows: polite bemusement. Or, put it another way, we were asking ourselves: why are our US friends so worked up over this? I imagine most Europeans (including me) were pretty bemused by the whole case, from its inception thanks to Californian State Senator Leland Yee to the increasingly shouty comments made by the US games industry bodies about it and on through to the recent court cases themselves.

Now I’m not saying that Europeans were bemused by US opposition to unsubstantiated claims like “violent games = violent children = bad”. We understand that well enough, since we have our own problems on this side of the Atlantic with people making wrongheaded claims like that. So, for the purposes of this post, I’m going to ignore the fact that this particular law was based on inadequate research and had a political anti-games agenda. I’m going to focus on the European perspective regarding two more general factors which were important in the case:

(1) US opposition to there being any government involvement in games regulation (by which I mean setting the age ratings for games) at all; and

(2) The US love of constitutional law arguments when it comes to regulation.

US opposition to government involvement in games regulation

Most European countries have quite happily accepted a government-established and enforced legal regime for games regulation. In the UK, for example, we have the Video Recordings Act 1984 – which is currently administered by the British Board of Film Classification but is in the process of being moved to another body called the Video Standards Council, which will essentially apply the European PEGI system of game ratings (more on PEGI in a second). The UK games industry works quite happily within the government regulation model: it gives the games industry certainty they are operating within the law and it gives the government comfort that they can say to the public that games are being properly regulated and therefore that children are being protected. In fact, the UK debate has historically been defined far more by the perceived need to protect children than it was by any arguments about the rights of developers and the public to free speech and self-determination when it comes to games.

So, on to PEGI. Not only are Europeans relaxed about their governments being responsible for games regulation, they’ve set up a (mostly) European wide standard of European games regulation – called PEGI. In the UK, this is developing into a sort of hybrid part-government and part-industry regulation model, where the industry has a significant say in what the regulation should be and then the government steps in to make sure it comes up to the proper standard and is properly enforced. Again, to emphasise the point, as far as I’m aware there has never been any issue raised about government involvement/interference.

By comparison therefore, I think arguments in the US about this Californian games law being a bad idea because it represents government interfering in the games industry seemed a bit odd to Europeans. From their perspective, what’s the harm in the government setting the legal standard so we know where everyone stands (especially if the industry gets to have its say in the matter too, as with PEGI)?

Obviously that’s the point at which one can get an argument into which is better – the US/self-regulated model or the European/government-regulated-but-with-some-self-regulation model. But I don’t want to get into that – I just wanted to illustrate the point that Europeans were bemused by Brown v EMA because government-led games regulation is just fine in Europe, on the whole.

US love of constitutional law arguments

Several Twitter friends and I reached the (admittedly unscientific) conclusion over the course of the case that the vocal free speech angle to the Brown v EMA case says a lot about how US society sees the interaction between constitutional and ‘practical’ laws in a different way than Europeans.

I’m not saying it’s necessarily a good or bad thing, it just seems to be a fact that debates in the US often involve references to constitutional law in a way that they don’t elsewhere. Again, to use my own country as an example, I cannot recall any real instances of the many UK debates about ‘violent’ games involving any discussion of free speech or human or constitutional rights (though it’s worth bearing in mind the UK doesn’t have a written constitution anyway!) Obviously free speech considerations are involved when one proposes government regulation of anything – that’s how a democracy works. But the point is that the relatively emotive language of free speech just hasn’t ever expressly entered the debate in the UK. Unscientific evidence from various European friends suggests similar approaches in their countries (with the possible exception of Germany, which I think is perhaps closer to the US constitutional law tradition than the UK in this regard – though, German readers, please correct me if I’m wrong!).

I’ll stop at this stage, to avoid degenerating into generalities of the “all Americans are X and Europeans are Y” kind (with the notable exception of my deliberately silly post title – sorry about that). In reality, I’m sure that there were some Americans who were as bemused as the Europeans by the whole affair, and vice versa. But I thought it was worth writing this post to highlight the point that, on the whole, Europeans have looked at this case with rather different eyes to their American counterparts.

This matters because…

(1) The days of purely national games regulation are fast coming to an end; and

(2) The US is a huge games market, so US games regulation matters to everyone – whether they agree with it or not.

The second point is pretty obvious so I won’t go into it further. But the first point is pretty interesting, I think. Country-specific games regulation made sense in the days of relatively simple boxed products on console or PC with no digital distribution, DLC, virtual goods or other ‘long tail’ type products/services. Now we have MMOs, social and casual games, new business models like freemium supported by virtual goods, new platforms and new devices – none of which fit comfortably (or at all) within the existing games regulation frameworks.

National games regulation models (both industry and government led) are having difficulty keeping up to speed with changes in the industry – and I don’t think they can succeed, ultimately. In fact, it’s tempting to predict the ultimate demise of games regulation altogether, but I don’t think that’s likely – ultimately there is always likely to be a strong public policy desire to ensure content (games especially) is handled appropriately, especially where children are involved.

So what will replace the current hotch-potch of different games regulation regimes? Answers on a postcard, please…It could be an enlarged version of ESRB self-regulation, or a PEGI type system, or some kind of supra-national government body, or something else altogether. But sooner or later, something will have to change – in fact, I suspect that eventually the games industry will demand it in order to avoid being choked up in red tape/controversy.

At that stage, Americans and Europeans will have to start talking to each other about games regulation a deal more than they are now. In practice of course they will be able eventually to agree common ground for how to rate games etc – but I hope misunderstandings about free speech, constitutional rights and the proper role of governments don’t get in the way first.

27 comments

  1. (Are you ready for a history lesson? hehe)

    While I am not a legislator or a constitutional/congressional attorney, I can tell you why "we" Americans "love" to argue about (and with) our Constitution, especially The Bill of Rights. Simply put, it defines us as a nation; it does so figuratively, and more importantly literally.

    The Constitution of The United States of America is the document that governs our nation and sets the rules and laws that not only for our people, but the three branches of our government (legislative, judicial and executive). The Amendments to The Constitution (especially the first ten, which are called 'The Bill of Rights') are important in that they define interpretations (or reinterpretations) and exceptions of the Constitution.

    Out of The Bill of Rights, The First Amendment (which is always capitalized, btw) is our most important and defended amendment; and there is a reason that our Founding Fathers put it first.

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."

    This was one of the (most important) reasons why we declared independence in the first place. Most of the original settlers wanted to practice their own religion with no interference from their government(s) (the Quakers), along with good ol' King George III wanting to repress the colonists by keeping them from assembling, reporting or speaking, let alone to "call him out" on what he was doing to "us," we hold The First Amendment dearest to our hearts.

    While we may bemuse others with our discussions, debates, deliberations, arguments, or even hearings on such a topic, we do so to protect the rights that we have fought for over the centuries; rights that everyone within our nation are protected under. And we want to make sure that these rights (again, especially The First Amendment) are not trampled upon or curtailed in such a way that could allow changes that would undermine the spirit of our national doctrine.

    To us, what can be truly frightening is that a change is made to our fundamental rights that could affect everything else within our nation. If such a law as that was proposed by Leland Yee (personally, I never cared for him – nor have I voted for him) were to pass, because of the broad verbiage it could have resounding effects. And what is more, what is to stop those people at regulating video games after that law is passed? "Oh, that movie is not tasteful enough? You can't produce it!" (Even though the movie industry has a self-regulated ratings system, which is not as stringent or adhered to as that for video games.) "Oh, that book doesn't agree with what I think? You can't publish it!"

    Every medium as been "under the spotlight" regarding this. First it was books, then movies, then television, music (mostly in the 50's and into the 60's), comic books, and now (video) games. Just because the medium changes it does not mean that our rights must change too.

  2. "Again, to use my own country as an example, I cannot recall any real instances of the many UK debates about 'violent' games involving any discussion of free speech or human or constitutional rights (though it's worth bearing in mind the UK doesn't have a written constitution anyway!)"

    Yes, which is why most Americans tend to ignore British discussions of law. Our whole legislative process over the course of the republic has pretty much been an attempt not to be like you guys.

  3. @Unknown – thanks for that very thorough reply, I'm very impressed you took the time to express your views so clearly!

    @Anonymous – fair enough if you take a purely formalistic view of the US republic and constitution. In practice, the US and UK have a lot in common in constitutional matters – other than the fact that you take those constitutional matters far more seriously than we tend to. But feel freel to ignore me, I'm British after all 😛

  4. I think that @Unknown has many of the points right. To cast it in ethical terms one might say that the US is Daeontologic in that it tends to stick at least to the language of Rights. To a degree this is as the previous commentator notes because of a fear of the consequences of letting the application of those rights weaken. This is particular the case in citizen Government relations as Government actions seem predominantly to be intrusive upon liberty rather than benevolent or even supportive (necessary so to be Hobbisan) of freedom.

    What strikes many Europeans as perverse is this often unspoken assumptions and then degree to which they lead to applications principle that seem either ill fitting, or wrongly prioritised or injurious to outcomes. For examples many things that the US sees as ‘speech’ are for many a European clearly not speech (or at least that’s not its most important characteristic) or that it’s speech like nature and concomitant ‘freedom’ are less important that other considerations.

    The puzzlement really comes from reading US legal language with an EU mind set. It’s like asking ‘why would anyone fill up a car with gas?’ as clearly gas is, a gas, not the liquid that comes out of a pump. But it’s more than simple terms, it may indeed be the case that under the US system, if the Federal government had more intrusive powers in media regulation then media would be distorted – look for instance at recent Texas School board curriculum decisions.

    The problem for Video game makers is that this has created an irregular pattern of regulation around the world. To take a simple example – there is no common standard of what age cut off points should be applied to media let alone what content standards should apply. Broader than that the normative roles of: player, child, guardian, regulator and government are inconsistently understood.

    Lastly as we are on history lessons, there are many elements of the US foundation myth that are mythical but they seem to be repeated because of their symbolic power, thus when @Unknown states “Most of the original settlers wanted to practice their own religion with no interference from their government(s)” this implies that the settlers where not free to practice their religion – the Plymouth Brethren were free to so practice in Holland, where they were based, they in fact wanted restriction of religions practice not freedom as they objected to the other practise around them having an impact on their community.

  5. "Obviously free speech considerations are involved when one proposes government regulation of anything – that's how a democracy works. But the point is that the relatively emotive language of free speech just hasn't ever expressly entered the debate in the UK."

    It's not just that the US has a Constitution; it's that our courts are given the power of judicial review — to strike down laws if they don't agree with the constitution, as was the case here. (Oddly enough, there's nothing in the Constitution that explicitly gives them that power, but it's a doctrine that was established as early as 1803, and everyone seems to have thought it was a good idea.)

    Over the many years that courts have had to reconcile laws with the broad protections of the First Amendment, we've discovered many of the amendment's contours and features. We've decided, for instance, that students have broad First Amendment protections while they're at school, but that adults don't enjoy the same protections from their employers when acting as an employee. We've decided that the First Amendment establishes a right to burn the American flag, but not to libel or slander or otherwise abuse people by telling lies.

    (If I understand correctly, the UK hasn't had a _fundamental_ protection of free expression (by which I mean something that couldn't be taken away simply by passing a law) until the EU's Charter of Fundamental Rights. But it appears the UK has an opt-out from the Charter which says, in part, that neither domestic nor EU courts can find UK laws to be inconsistent with the Charter.)

    Many laws are drafted in order to serve short-term interests. It serves a short-term interest, for example, to draft a law requiring that video games be regulated. And if it were passed at the height of a moral panic (as we've had several times with video games), it wouldn't meet much opposition.

    The virtue of having a Constitution is that it's a statement of ideals. No law, no matter its intent, can be in conflict with those ideals. It protects the long-term interests of the state against the expediency of short-term interest.

  6. The reason this was a constitutional case has to do with the history of free speech legislation in this country.

    The law, as defined, would make video games something wholly different from films, books, or other pieces of art. All of these other mediums have had fights in the name of freedom of speech in the past, and video games are using the same model that these other mediums do. They use a self regulated system to recommend specific ages, with no law governing the sale.

    It is not illegal here to sell an R rated movie ticket to a minor, for example. The law would create an unfair comparison by saying that one form of speech (video games) is different than another.

    While I understand this isn't the case overseas, where some speech is regulated by power of law, it speaks more to American legal history and the meaning of the First Amendment.

  7. It's worth pointing out we do have a constitution, a Bill of Rights and such, the Magna Carta – per Lord Woolf:

    'In a 2005 speech, Lord Woolf described it as "first of a series of instruments that now are recognised as having a special constitutional status",[2] the others being the Habeas Corpus Act, the Petition of Right, the Bill of Rights, and the Act of Settlement.' – http://en.wikipedia.org/wiki/Magna_Carta

  8. Most of the legal arguments made previously adequately, and even eloquently, explain the uniquely American mindset in regards to the fierce protection of First Amendment rights. The only addendum I would append is that we also have a tumultuous history of government trying to implement various laws that would circumscribe or limit those rights, usually in what Mr. Dupont correctly describes as “height of a moral panic”. In many of those cases, the unknown and unintended consequences have turned out to be extremely adverse. It is not my intention to present case law here, so please excuse the lack of supporting evidence in an opinion piece. Suffice it to say, the American experience has provided enough precedent and object lessons in the experience that we tend to have an allergic reaction to any attempts to regulate this and related activity.
    However, I do want to address something that seems, at least to me, very pertinent to the perception of the OP and why this presents puzzlement to the European mindset. (I spent most of a decade living in various parts of Europe, and another as a frequent traveler.) Frankly, the much more relaxed acceptance of certain proprieties of behavior that are viewed as decadent and immoral in general society in America. I know this seems oxymoronic. We, who most ardently defend the rights of Free Speech, are also much more puritanical in our general societal mores. For example, nudity, some language and certain violent depictions are and have been generally accepted in public, such as on non-cable television, in many European countries.
    I am just saying that it is possible that Europeans may view this with bewilderment simply because the actions that are the cause of the debate are largely accepted by them. So when they hear of such a vehemently loud ruckus being raised, they perhaps envision the object of such passionate debate to be something more akin to the edges of their social experience, rather than, to them, something rather minor. Examples would be when Dennis Franz briefly displayed a bare bottom in the New York City crime drama NYPD Blue; Janet Jackson’s “wardrobe malfunction”; a recent event of two homosexual men kissing on TV. These are barely worth mention in European press, but the moral outrage burned brightly across America.
    Another thing our European cousins need to understand is the relative fragility of our political figures. In each of these, and hundreds more, cases there was a corresponding call to limit, restrict, and regulate content. “For the children!” has been a rallying cry to lead the charge, and no politician wants to be seen as the one portrayed as a supporter of anything detrimental to children. So they will stand on the steps and proudly endorse such a provision, knowing (and counting on) that it will struck down upon contestation and review by federal courts.

  9. The "constitutional argument" in most continental Europe countries is somewhat different from the American one. Speaking in very layman's terms (any constitutional law scholar would likely scoff at this and myself, being a constitutional law scholar, feel a bit weird about what I'm about to write), there's a large "buffer zone" of bills and acts between the constitution and the specific law.

    Now that's similar to US (and any other country), but since the US courts can directly circumvent any law and issue ruling, the buffer isn't that strong. Whereas in most European countries, you can't rule based on constitution itself if a lower-ranked law exists. And if you think that said law violated the constitution, you must go through a constitutional review procedure first, usually in some special constitutional tribunal. Which is somewhat complicated, to say at least.

    Moreover, every European country (OK, except Belarus and the Holy See) is a side to the European Convention on Human Rights. This makes things even more complicated, because your country legislation and the Convention might have a very different approach to any given right or freedom.

    In this particular case we must also remember that the freedom of speech is a whole different animal in US and Europe. Personal freedoms are treated far more broadly in the US – that's due to the US constitution being far less detailed and the Supreme Court rulings having a fundamental role in understanding what exactly does the US constitution entail. European constitutions – most of them drafted within the last 50 years – are greatly more minute and detailed in describing the rights and freedoms they introduce.

    And we finally add another layer of complication that is EU. While EU insofar didn't really concern itself much with human rights, it does greatly concern itself with freedom of trade within the Union. If some country would ban products coming from another EU country based on a criteria of, in this case, violent content, the case would likely end up in the European Court of Justice on grounds of limiting freedom of trade.

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