Classification, protection or freedom of speech? [updated]

Image courtesty of sjsharktank

Posted by Anna Martin

The latest term of the United States Supreme Court ended with an interesting decision involving a California law prohibiting the sale of violent video games to minors.  In Brown v Entertainment Merchants' Assn, the majority of the Court found that the law of California was contrary to the First Amendment, specifically that it was an unjustifiable restriction of free speech.

As a party to the case, the State of California conceded that video games were capable of attracting First Amendment protection, but asserted that because they are more interactive than other more traditional free speech devices (such as books, plays and movies), the State was justified in restricting free speech by prohibiting the sale of violent video games to minors.

The Court did not agree. It held that California had failed to justify the restriction because there was insufficient evidence that the interactive feature of violent video games caused an increase in aggressive behaviour of minors. Evidence that did suggest there was a harmful effect on children was based on correlation rather than causation which was not enough for the Court.  Although Justice Alito concurred with the majority's decision, His Honour nevertheless made the following further comment:

In the view of the Court … violent video games really present no serious problem.  Spending hour upon hour controlling the actions of a character who guns down scores of innocent victims is not different in "kind" from reading a description of violence in a work of literature.  The Court is sure of this; I am not.

Although it would more likely be accepted in Europe and Australia that video games depicting extreme violence is an inappropriate medium for unrestricted free speech, the protection of the First Amendment in the United States is expansive. In the past, it has been the basis for allowing a pro-Nazi march in a town of predominantly Jewish survivors of World War II; for permitting various forms of hate speech and incitement to violence; and to permit the creation of depictions of animal cruelty.  Last year, the Court held that free speech cannot be restricted by a legislature purely on the basis that certain speech is too harmful to be tolerated.

Therefore, it is unsurprising that the First Amendment protects the sale of violent video games to minors, games 'in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being' (in the words of the invalidated statute), some of which have a racial or ethnic motive for such violence.

Classification Board

The decision of the US Supreme Court comes at a time when Australia is also considering the classification of violent video games.  Video games (along with films) are regulated by the National Classification Scheme (NCS) which is a cooperative arrangement between the Commonwealth, States and Territories.  Currently, the NCS has an MA15+ category but does not include an R18+ rating for video games (despite having such a rating for films).  Those games which are deemed too violent for minors are simply refused classification (RC).  So while the US is refusing to classify games as 'adult only', the converse is occurring in Australia, where no classification is given to particularly violent games and the video game is not allowed to be sold at all.

Under the National Classification Code (Code) video games are to be given an RC rating if they:

• depict, express or otherwise deal with matters of sex, drug misuse or addiction, crime, cruelty, violence or revolting or abhorrent phenomena in such a way that they offend against the standards of morality, decency and propriety generally accepted by reasonable adults to the extent that they should not be classified; or
• describe or depict in a way that is likely to cause offence to a reasonable adult, a person who is, or appears to be, a child under 18 (whether the person is engaged in sexual activity or not); or
• promote, incite or instruct in matters of crime or violence; or
• are unsuitable for a minor to see or play.

According to the Code, any classification decisions are to give effect to the following principles:

• adults should be able to read, hear and see what they want;
• minors should be protected from material likely to harm or disturb them;
• everyone should be protected from exposure to unsolicited material that they find offensive; and
• community concerns should be taken into account in relation to depictions that condone or incite violence, particularly sexual violence; and the portrayal of persons in a demeaning manner.

The absence of an R18+ classification for video games has been the subject of much debate since 2009 when the Minister for Home Affairs released a Discussion Paper on the topic.  The Attorney-General's Department released a report at the end of 2010 after receiving 58,437 valid submissions.  The report disclosed widespread interest in adopting an R18+ classification category, with 98.4% in favour.  Admittedly, over 50% of the submissions came from games retailer EB Games, but there were also individual, community, church and industry group submissions.

Despite the high level of interest in this issue, the Senate committee report into the NCS that was tabled in Parliament in late June made no recommendation on the R18+ classification for video games.  Yet another report into the NCS is expected from the Australian Law Reform Commission early next year.  The issue seems to be generating plenty of discussion but not much action.

[Update: At a meeting held today in Adelaide, the Federal and State attorneys-general reached an agreement 'in principle' to introduce an R18+ classification for games.  Some States will require approval from their cabinet; once this has been given, the Federal Government will begin drafting legislation.]

Partner: Paul Kallenbach