Free Speech – The Supreme Court Case Against Violent Video Games – Extra Credits

Free Speech – The Supreme Court Case Against Violent Video Games – Extra Credits

MUSIC: ‘Penguin Cap’ by CarboHydroM Well, it’s public service day here at Extra Credits, and we got something to talk about. Something important. It’s not sexy, it’s not fun, but we really, really need to talk about it anyway. Today, we’re going to talk about free speech and video games. Yeah, I know. We shouldn’t even have to talk about this. If BP and Walmart’s money spending decisions are protected under the first amendment, why is anyone even questioning whether or not games should be. It’s ludicrous. But there it is. Apparently some people still just aren’t completely convinced The reason we’re dedicating an episode to this subject is because gaming is about to face a huge milestone in the coming year and perhaps the biggest threat it’s ever faced. For all intents and purposes, this year the Supreme Court of the United States will decide – – if video games are, legally speaking, an art. But first, a little background. A few years back, California made it a crime to sell interactive entertainment with violent content to minors. Terrible, silly, yes. But really not that big a deal, right? I mean, we’ve seen laws like this pop up dozens of times all over the country, and every time they get crushed in court. And for the last several years the same thing happened with this new California law. Court after court threw it out. But this year, out of nowhere, The Supreme Court of the United States, the ultimate last word, decided that they would hear the case. …What? That’s never happened before. The Supreme Court only hears, maybe, 100 cases a year, and they’re supposed to be for the really tough decisions. Not ridiculous, politically motivated, laws like this one. Any first-year law student could tell you this thing’s unconstitutional. So, what happened? Well, the argument changed. You see, in the past any law coming after violent video games has tried to claim that these games are obscene. For those of you who aren’t first amendment buffs, obscene materials don’t enjoy free speech protections, and can be regulated by law. But to be considered obscene, a work has to fail something called the Miller Test. The Miller Test requires three things, One: that the average person in the community would find the work objectionable. Two: that the work describes in an, offensive or objectionable way, sexual content as defined by law, and… Three: that the work as a whole lacks literary, artistic, political, or scientific value. As you can imagine, trying to restrict violent video games always fails this test. Even if you ignore number two, the one about sexual content, it’s impossible to argue that the medium as a whole has no literary, artistic, political, or scientific, value. That would be like saying TV as a medium lacks those qualities, and what would that even mean? Besides, even if we ignore artistic value, we could do a whole show on what this medium is done for science of it– -Stay on target. -What? I’m just saying that -Stay on target. All right, all right, all right. Okay, first amendment. So clearly the violent video games are obscene thing doesn’t cut it, but this time around the state of California has found a new argument. One that’s much harder to dismiss with a cursory glance. They’re arguing that violent games do harm to minors. Remember all those silly studies you read about on Kotaku or Joystick? -or The Escapist- saying that violent games harm kids? Those studies that we always grumble about, but then dismiss, because they’re funded by evangelical groups and semi political organizations? Well. Those studies just got a lot less funny. They are the fire power behind this argument. And they’re apparently strong enough to get the Supreme Court to listen to the case. Now, I know it’s pretty hard to imagine, but what happens if we actually lose this case? Remember, that the sale of games to minors might be restricted, isn’t the real issue here. The real worry is that games might be legally declared as having no first amendment protection. What happens if the Supreme Court decides games are more like a controlled substance or softcore porn than an artistic medium? Well, first, you’re going to see all the states that already lost this fight reviving their anti game laws. Next. You might see major retailers, like Target and Walmart, stop carrying titles that the government deems mature. And if that happens you’re going to see fewer developers creating games like Bioshock and Fallout – because, for all of their artistic merit, they fall under the restrictions of this law. If this law passes, it really could mean the end of this medium as a means of artistic expression. Games really will be a child’s plaything and nothing more, working under the watchful eye of people who don’t understand the medium or its true potential. But don’t worry. It’s not all doom and gloom! There’s another part to this argument that California has yet to justify. Which is why minors can’t choose for themselves what games to play. And that’s a bit harder to justify – to the point of being very funny, actually. The Great State of California is trying to argue that those of its citizens under 18 years of age lack the mental ability to make reasoned choices. Therefore, for their own good, the government must decide for them what games they can buy. I kid you not, this comes straight from their merits brief to the Supreme Court. “This precious right, the First Amendment, presupposes the capacity of the individual to make a reasoned choice as to whether to consume specific speech. Minors lack such capacity, and their liberty is best protected when the government reinforces parental authority.” Seriously. Go look it up. That quote isn’t even out of context. Honestly, California… improve your schools or something… On the brighter side, there are also organizations fighting for us. The Entertainment Software Association, the Entertainment Merchants Association, and the Entertainment Consumer Association. These organizations have put up hundreds of thousands of dollars in the fight against this law They’re full of dedicated people who want to see games regulated by the people who make and understand them. Which… leads me to why I’m saying all this. We love this medium. We think it can do incredible things for humanity, and can allow us to explore parts of the human experience that have only been dimly accessible to the Arts until now. We will fight as hard as we can, and in every way we know, to ensure that game makers can continue to make games that push the bounds and let us discover new things about ourselves. But does that mean that I believe all interactive experiences are good, simply by their nature as games? No…! The industry should have the good taste not to put out certain games. We as consumers should have the good sense never to buy them, to punish the industry for putting those games out there! But most of all, it is *we* who should be making those decisions. We, who love games, and want to see them become something more. Something better. Not some bureaucrat in a back office, waiting for the clock to strike six. I’ll leave you with this. Once, long ago, a great man said this to his colleagues, to reminds them that killing an idea was as much a sin as killing a man. “Books are not absolutely dead things, but do contain a potency of life in them to be as active as that soul was whose progeny they are; Nay, they do preserve as in a vial the purest efficacy and extraction of that living intellect that bred them… …Unless wariness be used as good almost kill a man as kill a good book: who kills a man kills a reasonable creature, God’s image, but he who destroys a good book, kills reason itself, kills the image of God, as it were, in the eye.” If that’s true of books, can it not be said tenfold regarding games? Thanks for listening. See you next week!

Comments (100)

  1. The stay on target joke had me literally laughing out loud. You guys are not only great gaming minds but subtle masters of comedy. Keep up the great work!

  2. I kid you not and the only reason me a 9 year old boy in 3ed. because i have free will and power to make choices my teacher tried to move me up ton 6th grade because I am learning from the internet.

  3. What?? Side against Government regulation and oversight and instead…. use a free market solution to direct developers to make better games?? You radical hate mongers!

  4. One thing that frustrates me so much when people claim "VIDEO GAMES CAUSE VIOLENCE!" is that that exact same argument can be applied to literally every other form of media in existence.


  6. Who first said that quote at the end? It's phenomenal.

  7. "The Industry should have the good taste not to put out certain games" You really just contradicted yourself there at the end. Free speech should come with no restrictions. Yeah you have the choice to support them or not but whos to say its in bad taste?

  8. Saying that a violent video game instills violence into a child is like saying any book with any violence (i.e.; the hunger games, practically any book at all) instills violence into a child. Neither are true.

  9. Quote at 6:00

  10. only two things drive the world
    1. money
    2. love

  11. This videos animation has probably made me laugh more than all those before it combined. Just because of the supreme court judges and the scene with the taser

  12. average man? go for vote!

  13. that last quote is in civ 5 after getting the writing technology

  14. California, the state that wants to ban parents from raising their children.

  15. I'm actually on the side of the law here. Movie theaters don't let unaccompanied 8 year olds watch Saw 3, why should game stores be allowed to sell them something just as gory?

  16. 2:34 that actually scared me XD

  17. Interesting to watch as a European who didn't know about this. Very glad rationality won once again

  18. This is ridiculous, absolutely ridiculous. I never been a law student, and even I say that banning games violates free speech. Heck even so called "obscene" works should still be allowed, provided that they have proper warnings tagged on. Video games already have a good rating system. That is a significant help right there. All we need to do is to make a requirement. If a customer buys an M rated game, they need to show their ID to prove they are old enough. That is an easy and fair way to improve it. It allows free speech, while also protecting minors. If a parent buys a video game, they can get a rated M game. Then it is their responsibility to make sure their child never plays or watches it, until they are ready. Problem solved.

  19. A lot of people missed the point of this (dead horse) law. They keep comparing it to movies.

    The point isn't whether an unaccompanied minor can buy the games, it's whether they can play them. Had this law passed the SC's ruling, it would have A) rendered many mature games as AO, basically classifying them on the same level as porn, and B) punished parents who gave consent to their children to play the games. It's less 'they wouldn't let an unaccompanied minor into a Saw movie in theaters' and more 'they're going to fine the parent 1000 dollars for allowing the minor to watch Saw on the living room TV.'

    Additionally, this would have made it harder to produce games that targeted adult demographics – much the same as Wal-Mart won't sell porn, they won't sell Adult-Only games. Hence, it makes it harder to get a consumer's hands on, and hence, lowers the over-all profitability of producing a game with even minimally violent content.

    However (thank Talos) the law was ruled unconstitutional. It's a dead horse. Why are we still talking about it?

  20. Wait. How can games hurt minors?
    It's not the games, but the people. Can't handle violence or death? Don't play the games.
    The games making the kids start fights or talk back, the parents can take the games away.
    Video gaming is a form of art. I know this is an old video, but if they can file against video games, then I want to file against all those statues and paintings of naked people that I see in muesums. I want to file against Harlequin books and 50 Shades of Grey.


  21. omg part of that qutoe is in civ 5

  22. Everytime I hear about shit like this, I thank the lord I was born in Norway

  23. I didn't realise that the US doesn't have age restrictions on video games. Does it for film, are kids allowed to buy violent movies? If so how is this any different?

  24. California schools are horrible they think middle schoolers need to go the the bathroom in pairs.

  25. I'm australian and over here we restrict access to content to minors all the time and it works well for everyone. the way we do it is pretty simple. every game or movie in a store (not counting online stores like steam cause they go under us law not Australian) has a rating which is done by looking at a check list and based on that slap a letter on it. i will put a list of the ratings here for context.

    G or general: suitable for everyone
    pc or parental guidance: it is not recommended under 15 without guidance
    m or mature: not recommended under 15
    ma or ​Mature Accompanied: not suitable for under 15
    r or restricted: not suitable for under 18

    ok now you know the ratings i can get into the law. anyone can buy g, pg or m as they are not restricted, m content like gta you must by over 15 to buy and they probably will ask for id and r rated is restricted to 18 and again will be asked for id. no one under the required age can buy them but if a parent wants to buy it for their kids that is legal. it forces anyone too young for some video games to ask a parent for permission to buy and lets them make the call. while still making any other game available. this rating is the same for movies and cinema, for some to see a restricted movie like die hard they must be over 15 or with an adult. it's a great system as it puts it on to the parents and it can be only bought with their permission.

  26. I'm going through every episode within your series. These videos are amazing!! Thank you!

  27. 5:55 Looks like it was Walpole.

  28. i accidently disliked the video
    i immediately pressed that like button to say sorry

  29. OK…..i know some people don't care, but i'm trying to watch all of thees videos in order……………..WISH ME LUCK!

  30. I Wish They Got The Law Through. Not only when I play, say, Battlefield it will have funny unicorns; but the fact is that citizens of the united states under the age of 18 have very small, few and not as interesting games an over 18 game set to be. So, as a result, I personally believe the law was correct, and if the supreme court approved of it, the under 18 population of California would have more interesting more fun and in larger numbers, as a result, I personally believe California is doing the correct thing for the younger population, as a result, I agree that California is doing the right thing, yet unfortunately the new law was put down.

  31. well as someone who is a minor in california and still cant buy M rated games without a parent (some gamestops have started doing fingerprinting, and like, full blown fbi level information collecting like age and height and stuff just to let you buy or even sell a game. i cant buy pokemon without an adult anymore. seriously. they wont even let me sell pokemon without an adult. its ludicrous.) and at the age of 16 i obviously lack the ability to decide whether meth is good for me so i need my mommy to decide for me. i need my daddy to decide that i shouldnt kill someone. right

  32. Damn straight Extra credits


  34. Any people who dislike this video watch it again and pay attention this time

  35. I know this Video is old but i dont think it was even that big of a deal, in germany it has always been like this :/

  36. Did The Supreme Court get this passed?

  37. I find that quote offensive as I was able to use a more advanced vocabulary than an adult as a minor and comprehend this show .

  38. Coming back to this video years later, I'm struck by how unreasonable it was for you to dismiss the State of California's claim that (as you paraphrased it) minors lack the capacity to make informed choices. That's a widely-recognized tenet of law. You're prohibited from marketing to them in certain ways, getting them to sign contracts (or at least the contracts are void), providing them porn, or engaging in sexual activity with them. Or selling them alcohol, though the age limit for that is even higher. They had a very solid argument there, defeated only by the medium having the capacity to be art indeed.

  39. Hey whoa whoa. Dead or Alive Extreme Beach Volleyball was legendary.

  40. Almost 2018, and guess what?

    Video Games are still art

  41. The government sucks at 95% of what it does.

  42. The doctor who started the study on video games on kids used in that court lost his license because he cooked the results.

  43. It’s always California (when it isn’t New York).

  44. No no no. That picture about the disabled person being called retarded was not ok. I always watched this channel because you had good insights and you help me learn more about games and made me realize games were an art form. But if you are going to mock somebody for something they cant control I simply can't support you anymore. It is really unfortunate because I always saw your channel as something that was very politically correct and informed but you have proven me wrong. I think that you should consider removing that image from your video. It's offensive and unnecessarily rude and mean to anyone who is disabled, or knows or is related to someone who is disabled. Its not a joke. Its not funny.

  45. I think this is not a question about whether children should be allowed not to play certain video games it’s about whether parents should be able to control what their kids can play..
    From my European view parents should be in control to some degree..

  46. As a native Californian and an avid, lifelong gamer, this episode frightened me at first.

    Even now, with games formally recognized as an art form, I'm glad it's still up because it's very easy to underestimate the lengths to which people will go to lobby against something they don't understand.

  47. Many minors have jobs. How can they have jobs if they lack the ability to make reasonable choices.

  48. Coca cola beats pepsi by far

  49. It make me feel i want to live in Japan

  50. Once you become 18 years old you are mature.

    And they say that under the age of 18 they are too dumb to get their own games.

  51. Minors can't make reasoned choices? No kidding, of course not! To borrow from Robert Heinlein, they're juveniles and therefore have no reason. THAT'S WHY THEY HAVE PARENTS. It is a PARENT's responsibility to determine what is right for their child, not the state's!

  52. But thre real question is should hentai be still be legal?

  53. luckely the ema won that case

  54. I’m happy that the Supreme Court defend video games

  55. don't blame christians for this. California is as far from christian as you can get.

  56. The California government is messed up.

  57. I bet you if this happens, riots of gamers will be everywhere in the country.
    Though it’s not possible to stop players from playing games they want.

  58. But then most of the people who created this case will not be allowed to buys these games due to there lack of maturity

  59. Seems like this is an obedience to parents and self control issue, which unfortunately society is lacking in recent years.

  60. Oh god Russian survival horror would start flooding in.

  61. If violent video games turned people into killers, then we'd probably see way more people running around, killing everything with swords, or axes, or even maces

  62. I am from 2018 and this is ridiculous, of course games are art.

  63. I just can’t handle the idea that books and films covering touchy subjects are artistic and worthy of praise but games aren’t.

  64. 4:21 "should we be afraid by our own children?, should we forget that they are citizens too? and that they should be require to read? or do we think that our children are so simple minded that it gets for the comic subject of murder to accepted of murder?" – old timey dude

  65. Noice, here we are, games have never been an art in Germany

  66. 2:54 Damn, did Dan just diss the site that hosted his show? 🤔

  67. 4:21 Using a picture of someone with Down syndrome with the caption “Congratulations / You’re retarded!” over Dan saying “… lack the mental ability …” is rather offensive, but seeing as how this video came out all the way back in 2010, I’ll kind of give it a pass. Most of these videos haven’t aged well, especially with all the old and criminally unfunny memes in these older videos, haha! Oh well, I still find them interesting.

  68. So they give minors possible guns and cars which can kill hundreds judtnby accident. But letting them playing a game? Noooooo

  69. Cant they just be rated using the same basic system as films? That doesnt seem controversial. I think thats how it works in the uk…

  70. I CAN'T BELIEVE THIS AM I SUPPOSED TO LET OTHERS MAKE MY CHOICES. short answer no. long answer I am capable of making my own decisions and THE COUNTRY WAS FOUNDED on the principle that all people (NOT SPECIFYING AGE) are equal.

  71. What a lot of people who don't play games don't understand is the people who grew up on the medium, when I was a kid I played a lot of video games. I had no friends, I had anxiety, and I was way to self deprecating. So when I played some TF2, CoD, Elder Scrolls, etc. I felt like someone important, I felt like I was liked by people who weren't related by blood. Video games are an art form, and those who don't think that don't understand

  72. People who don’t play video games, shouldn’t decide the fate of video games
    People who can’t do anything more with a movie beyond watching it once, shouldn’t decide the fate of movies
    People who can’t read, shouldn’t decided the fate of books
    And yet, they do. People who can’t even understand the medium, have authority over them.

  73. You make pretty good points

  74. I have come, from 7 years in the future! Or rather watching a video from the past. I was listening and heard that the Government was to decide if Video Games was an art. I believe it is. Why? Well if Video Games are not art then all that is similar is not art either. Some games have 3D models and a 3D world, some movies are also made to have 3D animation. If 3D games aren't art, then movies from that of Pixar or Illumination are not art. Games of RPGs are like that similar to an action movie, or novel just with an ability to see what the story is (as not everyone can visualize things in their heads, this is called Aphentasia (don't know if that is spelled right). These people can't necessarily picture things, and when they try all they can see is darkness). So if Video Games, which can help express creativity in some forms (Minecraft, The Sims, Scrap Mechanic, and so forth), then Drawing, Sketching, Painting, Writing, Directing, Acting, Animating, and so on are NOT art.

    Thank you for reading if you did! Have a good morning, evening, afternoon, day, night, where ever you are! Also EC if you do read this, great work! I have learned many different things from your channel, and I thank you and the Patrons who support you (when I can't help to support you *Ahem). Hope you guys have a fantastic day, evening, night, and so on where ever you are as well!

  75. I know I'm like four years late to this, and maybe I missed something, but I don't see why this was a big deal. Where I'm from, it's illegal to sell video games with mature themes to children, in the same way that you're not allowed to sell movies with mature themes to children. It's already a given in law that minors have a reduced capacity for reason, which is why they're restricted from doing a many things, including have sex or votr until they're legally old enough to understand the impact of those decisions. I know that some children mature faster than others, I mean, I know some 15 year olds who are more intelligent that a few adults, but if there's going to be a line, it has to be somewhere, to save time, no one wants to go through and assess every child to see if they're mature enough to do everything.

    I doubt anyone will read this but if anyone can be bothered I'd love to know what I'm missing

  76. I lack reasoning. I feel offended.

  77. Umm, yes of course children lack the ability to make reasoned decisions. That's why they're not allowed to have drivers licences, enrol in the military, buy cigarettes or alcohol, etc. etc. That's a completely different question to whether games are art (spoiler: they are) and it's pretty ludicrous to argue that children are as rational as adults when we know for a fact they aren't. :/

  78. 2019 and there are some really good stuff rn uwu

  79. School doesn’t previde that

  80. By this standard why the hell isn't porn illegal?
    Also I love how Extra credits is taking the piss out of ageism. The kid in me feels vindication.

  81. Am I the only person who noticed that Dan is the only person with arms??

  82. But video games cause nazis

  83. spotting hypocrisy is one hell of a drug

  84. I didn't ask for this

  85. Well, this aged well.

  86. How the mighty have fallen…

  87. I’m surprised they didn’t take down this video considering their current stances….

  88. I have an anecdotal of my experience of video games. When I was teen, I would get angry but instead of runnkng to video games, I went for my books to feed that viloent rage in me.
    In other words, I think people r going to turn to what appeals to them to lash out on. It's definitely sonething I want to look into!😊

  89. Violent videogames don't harm anything or even cause increased aggression, the few studies that were sorta right measured whether or not the player will put hot sauce in someone's food

  90. As a kid myself, I know we can reason. We can reason better than some adults!

  91. Using God as an ultimate argument in 2019? Guys, seriously?

  92. and you just reinforced my belief that humanity as a whole has failed and as such MUST be cut down in numbers starting with those who don't understand how the world is changing and what's coming

  93. You're about 7 years too early

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