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Schwarzenegger V. Entertainment Merchants Association computer law & security review 27 (2011) 278e290 available at www.sciencedirect.com www.compseconline.com/publications/prodclaw.htm POSTAL 2 plays in US court - Schwarzenegger v. Entertainment Merchants Association Sylvia Kierkegaard Law School, Southampton University UK & President, International Association of IT Lawyers, Denmark abstract Keywords: In an unprecedented legal development, the case of violence in video games has now Violent video games reached the highest American court. The US Supreme Court is set to decide whether states First Amendment can restrict minors from buying violent video games in the case of Schwarzenegger v. Free speech Entertainment Merchants Association. The decision could have serious implications on the Child protection future of First Amendment rights and children’s ’welfare. To resolve Schwarzenegger, the Rape simulation Justices will need to decide how much First Amendment protection should be extended to RapeLay violent video games and whether minors have a greater constitutional right to violence Hentai than they do to obscenity. Obscenity standard ª 2011 Sylvia Kierkegaard. Published by Elsevier Ltd. All rights reserved. Ginsberg State interest Desensitization Deviant behavior 1. Introduction The huge market for video games means that potentially millions of young children will continue to spend their after- noons at the controls of video games simulating acts of decapitation, dismemberment and other forms of gory kill- Can a video game lead to murder and rape? Should sale and ings. Mortal Kombat turned heads with its controversial rental of violent video games be banned or restricted to minors? violence such as ripping someone’s head off or burning them to a skeleton after the match. The Grand Theft auto series Video games emerge from the convergence of the twen- gained controversy for its sexual themes, rape, violence tieth century’s two most important communication technol- (against civilians and law enforcement officers) and criminal ogies - the computer and television. Sales of this hybrid have behavior. A popular game called Postal is not just violent. It been exploding with the global video game market expected to invited players to urinate on people, causing them to vomit in grow to $73.5 billion in 20131 and their contents becoming disgust, decapitate people with shovels and to burn people increasingly graphic with disturbing imagery and extreme alive with gasoline or napalm or torture women while they violence. Six of the top 10 video games in 2008 included beg for mercy. violence, with four of the games carrying a “Mature” rating Recently, some video games have been under a certain recommended for persons aged 17 and older in the US.2 amount of criticism due to their blatantly destructive message 1 Zyl, G. (2009) PricewaterhouseCoopers report on the ‘Global Entertainment and Media Outlook 2009e2013’. Available at: http://www. itp.net/561902-report-forecasts-strong-video-game-market-growth. 2 ESA (2009) 2009 ‘Essential Facts about the Computer and Game Industry’ .Retrieved 15 January, 2010 at: http://videogames.procon.org/ sourcefiles/ESA09.pdf. 0267-3649/$ e see front matter ª 2011 Sylvia Kierkegaard. Published by Elsevier Ltd. All rights reserved. doi:10.1016/j.clsr.2011.03.008 computer law & security review 27 (2011) 278e290 279 and sexual seduction such as simulated rape, anal sex, incest rental of violent video games to minors citing existing prece- and sodomy. Video games already now depict just about dence with pornography cases that involve minors, but have everything from all kinds of intercourse to polygamy and seen the federal courts struck down each of those laws on cannibalism. Every day it seems millions of boys and young Constitutional grounds. men are entertaining themselves with games that, in some In an unprecedented legal development, the case of cases, denigrate women while glamorizing violence against violence in video games has now reached the highest Amer- them. ican court. The US Supreme Court is set to decide whether Japanese publishers are accused of being major producers states can restrict minors from buying violent video games in and distributors of games which allegedly feature graphic the case of Schwarzenegger v. Entertainment Merchants Associa- depictions of sexual assaults on women and girls. The tion. The recent court challenge to video game bans reflects evidence suggests that rape in games is not new in Japan. The the evolution of a new niche in First Amendment jurispru- hentai (pervert) theme is common in Japanese comics, dence. If the Court vindicates California’s law restricting the animated films and video games. RapeLay, a video game where sale and rental of violent video games to minors, other states players act as assailants attacking and raping females might be spurred to exploit a new exception to the First including 12 year-old schoolgirls, was only banned in Japan Amendment. Other forms of entertainment could also be last year following an international protest by a human rights restricted in the future. If it follows established precedent group. RapeLay begins with a teenage girl on a subway plat- dealing with freedom of speech, the sale of gratuitously form noticing that you are looking at her. She asks, “Can I help violent video games to minors will continue with contents for you with something?” That is when players begin their first kids getting gorier, bloodier and grittier e all for fun, of course! method of assault. With the click of your mouse, he can lift her This paper will discuss the many issues worth considering skirt, grope her or follow her aboard the train. As the game in Schwarzenegger v. Entertainment Merchants Association. progresses, players have the opportunity also to assault the girl’s sister and mother. RapeLay is rooted in a social illness that some say is 2. Background embedded in Japanese society. In an oft-cited 2004 survey, 64 percent of Tokyo women reported that they had been ‘groped’ It was in February 19, 1997 when 16 year-old Evan Ramsey on a train.3 walked into his school and killed two people. Ramsey was This game is just one of tens of thousands of video games reportedly influenced by the violent video game Doom. Ramsey allegedly containing explicit sexual content available in said his naivete´ left him unable to grasp that firing a gun in the Japanese stores. Some suggest that Japan is a haven for child real world is different from firing one in a video game.7 porn. Much Japanese porn would appear to come in forms that On 20 April 1999 teenagers Eric Harris and Dylan Klebold escape rules covering photos and videos. Japan’s child- went on an armed rampage at Columbine High School in pornography laws do not apply to manga (Japanese comic Colorado, killing 12 students and a teacher, before turning books); anime (cartoons); and video-games4 Japan has failed to their weapons on themselves. Relatives of people killed in the pass legislation that would make the possession of child- Columbine massacre and politicians blamed the computer pornography illegal.5 Human rights advocates have suggested game makers claiming that many of the computer games that the Japanese government should play a larger role in created the conditions that made the massacre possible. monitoring the creation of video games, but game liberals A rash of legislative proposals to control violent games was deplore the idea of censorship. introduced in a number of states. A lawsuit was filed against While rape stimulation and sexual assault have provoked the gaming companies such as Nintendo, but was dismissed an international outcry, violence in video games has been by the courts. defended vigorously by civil libertarians, gamers, American The games were once again been linked to a shooting in legal academics, entertainment industry, US courts and even Winnenden, Germany. The 17-year old Tim Kretschmer, who by scientists who claim that it is actually healthy in relieving had received treatment for psychiatric depression and had stress and aggression.6 Legislators and parents are not a fondness for video games, killed 16 people in rampage. convinced. States have enacted laws outlawing the sale and Violent video games are not fairing well in countries around the world. Politicians and experts are calling for 3 ABC News (2005) ‘ Japan Tries Women Only Car-Train to Stop tighter monitoring of video games, sending a chilling effect on Groping’ at:http://abcnews.go.com/GMA/International/story?id¼ the industry. 803965&CMP¼OTC-RSSFeeds0312. The number of locales around the world wanting to ban 4 Johnston, E. (March 31, 2009) ‘Child Porn Hard to Define, Stop. them completely is growing. The following countries ban Japan Times Online’ at: http://www.buzzle.com/articles/amazon- specific violent computer games, but do not have a blanket axes-japanese-video-game-that-simulates-gang-rape.html; ban: Australia, Brazil, China, Germany, Greece, Ireland, Italy, http://search.japantimes.co.jp/cgi-bin/nn20090331i1.html. 5 Bershad, J. (May 14, 2010) ‘Japan Refuses to Pass Legislation Mexico, New Zealand, Saudi Arabia, Singapore, South Korea, Banning Child Pornography Possession’. Mediatite at: http:// Thailand, United Arab Emirates, and the United Kingdom. www.mediaite.com/online/japan-refuses-to-pass-legislation- banning-child-pornography-possession/. 7 Avila, J., Reynolds, H., Whitcraft, T. and Tribolet, B. (2008)’ 6 Fersguson, C., and Rueda, C. (2010) The Hitman Study: Violent School Shooter: I didn’t realize they would die’. ABC. Retrieved at: Video Game Exposure Effects on Aggressive Behavior, Hostile http://abcnews.go.com/TheLaw/story%3Fid%3D5040342&page% Feelings, and Depression. European Psychologist 2010, Volume 15. 3D1. Download English Version: https://daneshyari.com/en/article/467125 Download Persian Version: https://daneshyari.com/article/467125 Daneshyari.com.
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