Reprinted from my blog, Cyber-Esq. The full Supreme Court opinion is in the Box under “Brown v. Entertainment Merchants Video Game Case:”
On Monday, the U.S. Supreme Court ruled, in a 7-2 opinion, that a 2005 California law aimed at banning the sale of violent video games to children went too far. Created by California state Senator Leland Yee (D-San Francisco), the law imposed a fine of up to $1,000 on retailers found to be in violation. However, because of the litigation, the law never went into effect.
This is the highest-level decision to date on the subject of legal restrictions on violent video games. In the wake of the Court’s decision, one thing is now clear – video games are entitled to the same First Amendment protections as books, plays and movies. Moreover, the Court emphasized that First Amendment protections are subject only to historically limited categories of speech such as obscenity, incitement or fighting words. These protections do not wane with the advent of new technologies. As a result, the state – as California did – cannot create a wholly new category of speech that is unlawful unless it can meet the “strict scrutiny” test; i.e., justify its law with a “compelling state interest.”
On the question of “strict scrutiny,” the Court found that California failed to meet its burden. Of specific interest, the Court doubted the strength of psychological evidence that claims such games cause children to behave violently or aggressively, at least more than any other available media. In addition, the Court found that the voluntary rating system – known as the Entertainment Software Ratings Board‘s (ESRB) classification system – already achieved the needs of parents without the government enacting legislation that infringes on free speech.
“the majority of video game resellers in the United States – including major retailers like GameStop and Best Buy – support the use of the…(ESRB) classification system, which rates games based on content and applies an age rating, which is featured on the video game box. It’s a purely voluntary system modeled after the Motion Picture Association of America’s ratings for movies.”
What do you think of the Court’s decision? In particular, the Court mentioned the fact that California had not limited access to “Saturday morning cartoons” in support of its decision, indicating that this raised the possibility that the state was singling out a particular industry or speaker for sanction. Is this a defensible analogy to violent video games?
As the dust settles from the mid-term elections, a question is percolating around the Internet: what will be the fate of “net neutrality” under a Republican-led House?
Under U.S. law, the administrative body governing the Internet is the Federal Communications Commission (FCC). However, major telecommunications legislation must still be approved by the House and the Senate. With a divided Congress, any major telecommunications legislation is unlikely to pass. The result – Internet service providers (ISPs) now hold all the cards and “net neutrality” is likely to be their primary target.
For those of you unfamiliar with the term, “net neutrality” is a principle that advocates no restrictions by Internet service providers (e.g., AT&T or Comcast) and governments on content, sites, platforms, the kinds of equipment that may be attached, and the modes of communication allowed; or, at the very least, extremely limited restrictions.
According to an article produced by Reuters, the underlying idea of net neutrality is that high-speed and mobile Internet providers should not be allowed to give preferential treatment to content providers that pay for faster transmission.
“Net Neutrality” is not a subject that should just be discussed by “techy” types. “Net neutrality” is one of the most important civil rights issues of our day. As a society, for good or ill, we have become utterly dependent upon the Internet. It is a primary method of information-gathering and information-sharing. For many, it is the source for social interaction, which broadly includes political organizing and activism (as witnessed by President Obama’s success as well as the growth of “causes” and “groups” on Facebook). Finally, to an ever-increasing degree, educators and institutions of learning are turning to the Internet as a mainstream tool to teach students of all ages.
Because of these developments, our societies must insist upon a robust and open Internet, with as few restrictions as possible. This is not to say that Internet service providers should not expect a reasonable rate of return on their services. However, just because I might choose AT&T as my provider, should not result in me being unable to freely communicate with certain other users or sites that AT&T finds objectionable. Same goes for you Verizon and Apple. And, just because I might not be able to afford your latest and greatest gadget, should not necessarily mean that I end up with something akin to “dial up” speeds when I attempt to find our the latest current events or get information on candidates running for office.
These kinds of results are not hypothetical populist-speak. According to its corporate “fact sheet,” “Comcast Corporation is one of the nation’s leading providers of cable, entertainment and communication products and services, with 22.9 million video customers, 16.7 million high-speed Internet customers and 8.4 million Comcast Digital Voice customers.” You can link to Comcast’s corporate information here.
This “leading provider” to tens of millions of Americans already restricts the amount of access its users can have to certain types of sites – most notably, peer-to-peer file (P2P) sharing sites. Comcast’s argument: sites which allow users to privately upload and download files (admittedly, sometimes large files) use up too much of the Internet’s bandwidth.
Comcast felt so strongly about their argument they filed a successful lawsuit in federal court over the issue. Almost immediately after the case ended, Comcast began aggressively marketing their more costly Xfinity service. Was private peer-to-peer file sharing sacrificed so that Comcast could charge its customers more money for allegedly faster Internet speeds?
I am not a Comcast customer, but I would like to hear from any of you who are. What do you think about this issue? Certainly, I invite Comcast to also share its thoughts on this topic, or on the topic of “net neutrality” in general. All non-spam comments will be approved.
In particular, it would be most welcome if Comcast would explain how it restricts its users access/use of the Internet (as its primary competitor contends it does) as well as provide its position on “net neutrality.” The same invitation is extended to AT&T, Verizon, Apple and Google.
Even if you claim not to use it as your primary method of gathering and sharing information, other users – your doctors, lawyers, banks, hospitals, government agencies – do rely on the Internet and their reliance affects you and your family every day. If made available to everyone, the Internet is the most powerful tool for advancement humankind has devised. Unfortunately, if access to this tool is segregated by class or wealth or geography or because of a corporate balance sheet, those without the tool will find themselves distanced and dis-enfranchised from much of what is taking place around them.
I strongly urge all my readers, followers and friends to view “net neutrality” as I do – a civil rights issue. If you are concerned about this issue, you can find out more about how to stand up for “net neutrality” by visiting this link. There are also Facebook causes devoted to the subject, which you can easily find simply by searching for the term net neutrality.
On May 5, 2010, Senators Mark Pryor (AR) and John Kerry (MA) introduced the “Equal Access to 21st Century Communications Act” (S. 3304). Senators Byron Dorgan and Kent Conrad, both from North Dakota, also co-sponsored the bill.
Hailed by equal access advocates as a major step forward for people with disabilities in ensuring accessible technology, the bill would modernize accessibility mandates in the Communications Act, bringing existing requirements up to date as television and phone services connect via the Internet and use new digital and broadband technologies.
Eric Bridges, Director of Advocacy & Government Affairs at the American Council of the Blind (ACB) said, “Much of S. 3304 would lead to greater accessibility for people with disabilities, such as more accessible video programming, including captioning and video description, regardless of distribution mode; and video programming equipment, such as televisions and other display devices, would also be accessible.”
However, some advocates have argued the Senate bill does not go as far as its companion measure in the House of Representatives – the “Twenty-first Century Communications and Video Accessibility Act” (H.R. 3101) – in reaching all the new technologies. In particular, the National Association of the Deaf has been critical that the Senate bill is not as broad or well-defined as the House version.
Jenifer Simpson, Senior Director of Government Affairs at the American Association of People With Disabilities (AAPD) said, “We are confident that these issues – scope of accessible communications and the standard for compliance – will be resolved.”
A copy of a press released just issued by COAT – the Coalition of Organizations for Accessible Technology – is in the Box. COAT has been active in getting the Senate bill introduced.