A hornets’ nest of fury over a video game that urges its players to “kill the Haitians” has prompted a South Florida city to approve — at least initially — a sweeping ordinance to regulate games sold or rented to minors. The law, proposed by North Miami’s Joe Celestin, a Haitian-American, imposes a $250 fine on anyone who sells or rents to minors without their parents’ consent games in which players kill or cause harm “to a human form.”
North Miami’s action comes on the heels of a lawsuit filed against the makers, retailers and distributors of a video game called “Grand Theft Auto: Vice City” by an ad hoc organization of Haitian groups — based in Florida — called the Haitian American Coalition of Palm Beach County.
Although the makers of the game — Rockstar Games and Take Two Interactive, both of New York City — have agreed to remove language offensive to Haitians from future versions of the game, the coalition is continuing to press for action to pull existing games from the shelves.
However, rather than suing over the game’s over-the-top violence, the plaintiffs’ decision to focus on the game’s supposedly genocidal tone might result in a weak case, as the infamous “kill the Haitians” dialogue in the game was an order to wipe out the Haitian mafia and not to kill Haitians in general, as the suit alleges.
Obscenity Exception
Although so far the courts have ruled that video games are protected by the First Amendment, there are those who argue that games depicting graphic violence could be treated as unprotected speech, just as obscenity is treated. “Earlier eras’ view of obscenity was broader than sex,” Michigan State law professor Kevin W. Saunders told TechNewsWorld. “Limitation to sex is a Victorian Age product, which is well after the Constitutional era.
“I’ve looked at all the policies that underlie the obscenity exception and the explanations for them, and they apply to violence just as well as they do to sex,” he added.
But according to the Hal Halpin, president of the Interactive Entertainment Merchants Association (IEMA), recent changes in the IEMA’s sales policies will make ordinances like North Miami’s a moot issue.
By the end of this year, he told TechNewsWorld via e-mail, all IEMA member companies, which collectively account for almost 90 percent of all video game sales, will have in place ID-checking systems at the store level. So, in much the same way that movie theaters ask minors for government-issued identification to grant them access to R-rated movies, game merchants will ask for the identification of people interested in purchasing Mature-rated games.
Similar Moves Elsewhere
But in light of the fact that such checks and balances are not in place yet, actions similar to North Miami’s were taken last year by St. Louis County, Missouri, and Washington State. Last June, a federal appeals court overturned a lower-court ruling that had upheld an ordinance banning the sale or rental to minors of video games with graphic depictions of violence. In that decision, the U.S. Eighth Circuit Court of Appeals found that video games are protected speech under the First Amendment:
“If the first amendment is versatile enough to ‘shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll’ … we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence.”
“Whether we believe the advent of violent video games adds anything of value to society is irrelevant; guided by the first amendment, we are obliged to recognize that ‘they are as much entitled to the protection of free speech as the best of literature,'” the court said.
The Washington State law, passed last May, actually has a lawsuit filed against it, and an injunction has been issued to prevent it from taking effect pending the outcome of that legal action. That measure imposes fines of up to $500 on anyone renting or selling to someone 17 or under computer games in which the player kills or injures “a human form who is depicted … as a public law enforcement officer.”
Creative Expression
“Federal courts have consistently ruled that efforts to restrict the sale of all entertainment media, including interactive games, based on their content, are unconstitutional restrictions on creative expression,” Douglas Lowenstein, president of the Entertainment Software Association in Washington, D.C., told TechNewsWorld.
“Indeed,” he continued, “last year, a federal judge issued a preliminary injunction blocking implementation of the very Washington state law cited by the [North Miami] council as a basis for its ordinance.”
Lowenstein cited Federal Trade Commission numbers that show parents are involved in the purchase or rental of video games 83 percent of the time. “In other words, when kids do get Mature-rated games, it’s usually with their parents’ knowledge, and no law known to man can mandate sound parenting,” he said.
Urges Dialogue
He added that retailers recently announced an all-out commitment to implement voluntary systems to prevent the sale of Mature-rated games to persons under 17.
He noted that the National Institute on Media and the Family recently found that in cases in which stores have policies to enforce the Mature rating, sales of M-rated games to minors are prevented 70 percent of the time, a level surpassing that achieved by movie theaters in preventing minors from entering into R-rated films.
“We hope we can engage in a dialogue with the council in the next few weeks to find alternative ways to address the understandable concerns that gave rise to enactment of this ordinance,” he said.
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