(Sex & Video Games Conference)

          Thank you for the opportunity to address this unique gathering, and first of its kind conference.  My name is Lawrence Walters, and I am a partner in the law firm of Weston, Garrou, DeWitt & Walters.  The focus of my practice is on censorship and First Amendment law involving a wide variety of media. Our firm has been in existence for over 40 years, and has handled cases in virtually all United States jurisdictions, including 7 at the United States Supreme Court – all dealing with censorship of erotic materials.  So we have a pretty good handle on the state of the law relating to sex in the media. 

          My particular focus is on new media content, such as the Internet, blogosphere, and live gaming spaces.  I’ve defended a number of obscenity prosecutions involving digital content, and look forward to speaking to you on these interesting issues.


(Sex & Video Games Conference)

          Let me start out by saying that we do not act as censors for our clients.  We believe that all expression is presumptively protected by the First Amendment and that adults have the right to create sexual or violent media, and adults have the right to consume and be entertained by that media.  So long as we’re not discussing plainly illegal content, like child pornography or snuff films, which records an actual, staged crime, I believe that the government has no business in censoring expressive media.

          I give you that disclaimer because some of my comments may sound like I am suggesting that some forms of censorship are okay, or should be tolerated, but that is far from my belief.  But what is happening in the video game industry right now, is something that traditional adult entertainment companies have been wrestling with for decades.  My partners, John Weston, Clyde DeWitt, and Randy Garrou, all of whom are here, can regale you with tales of woe from the 1970’s and 80’s, going back to the days of the Nixon Administration and the Meese Report, where the government used the same old hackneyed arguments about “protecting children” and “preventing rape” that it uses today, to try to censor controversial or unpopular speech.  So I want to give you some of the benefit of our collective experience in dealing with these recurring issues.  Hopefully, the video game industry can get a jump on its opponents by learning from some of the hard lessons taught to the adult magazine industry, the video tape industry, and most recently, the adult Internet community.

          A good place to start in this discussion is by recognizing that video games are considered to be protected speech.  There was some question about that in the early litigation, but the courts have uniformly determined that given the expansive plots, themes, graphic art, and dialogue that are part of all modern-day video games, they will undoubtedly qualify for protection as “speech” under the First Amendment.  I suppose somebody could design a video game that is so devoid of literary content, and that simply involves placing Vibrator “A” into Slot “B” over and over again that a court would say, “this is not protected speech,” but by and large, video games will qualify for free speech protection.  This means that the government has to meet a high burden when it seeks to regulate any form of expressive materials.  In other words, it is much easier for the government to regulate the sale of gasoline or insurance, as opposed to protected media like video games or websites.  So that generally means that the government must have some sort of legitimate or compelling interest that it is seeking to protect by this regulation.  Now, what is the interest that the government will always use as the basis to restrict or snuff out sexually-oriented speech it doesn’t like?  CHILDREN!  You got it.  “Protect the Kids” is the mantra we hear over and over again by the family values groups and legislators claiming that they know better than the rest of us what kind of entertainment should be made available in the marketplace.  

          Protecting children from exposure to sexually-oriented media has often worked in the courts as a legitimate or compelling governmental interest for legislation.  Most states have “harmful materials” laws [as we’ve seen in the presentation] which prohibit sexually explicit materials and being sold or distributed to minors.  The censors have not been so lucky with violence, however.  Thus far, no court has accepted the argument that violence in video games, or any other media, justifies any kind of governmental restriction on free expression.  Thus, the expression “Violence, OK – Sex , No Way.”

          Now, not only must the State establish this governmental interest, it must show that the legislation seeks to address this interest with means that are the least restrictive.  In other words, if there is another way to accomplish the same goal, that is less restrictive on speech, the government should use that alternative instead.  The difficulties imposed on the government in meeting this burden have thus far saved the video game industry from highly-restrictive legislation on the sale or distribution of violent or sexually-oriented video games.

          But the court of public opinion is a different matter entirely: Politicians, legislators, and law enforcement officers across the country are seeking to influence public opinion against the video game industry for targeting children with inappropriately violent or sexually-oriented content.  A recent FTC study claimed that 42% of 13-16 year olds, for example, are able to purchase “M” rated games at local retail outlets.  This is despite the fact that most retailers claim that they will not sell “M” rated games to minors.  In addition, a Harvard University School of Public Health study indicated that 81% of “M” rated video games included content that was not noted on the game box content description, including violence, blood, sexual themes, substantive profanity or gambling.  These statistics bode ill for the industry, and it should take the issue seriously.  The courts have, thus far, protected the industry from a major assault, but the battle cannot ultimately be won in the courts.  The government can keep coming back, over and over again, with new legislation and new theories.  So the ultimate battle must be won by educating the public, and at the same time, convincing lawmakers that the industry is serious about self-regulation.

          So the video game industry, as I see it, is at something of a crossroads, if it seeks to win the hearts and minds of the public, and avoid overbearing governmental regulation.  While again, I do not advocate government censorship in any of its devious forms, I do believe that it is important to take the issue of voluntary regulation seriously, and look closely at whether the industry is doing enough to educate parents as to the content of video games, so they can make appropriate decisions for their children, who will in time be old enough to decide for themselves.  It also needs to look at the issue of restricted sales more closely, and see if current policies and efforts are working.  According to the FTC study, they’re not.  Now while the validity of many numbers and statistics can be debated ad nauseum, there is a mounting concern out there.  Parents want to be able to make informed decisions for their children, based on each individual family’s comfort level with erotic and violent material.  In my view, wholesale restrictions on the creation, distribution, or sale of violent or erotic video games is not the answer.  However, making sure that parents are informed, and allowing parents to make decisions for their children on media intake, is the answer.  As with any media, the government should stay out of this process.  Ideally, this should be done through voluntary industry regulation.  But be forewarned, if the industry doesn’t do it itself, the government will be happy to step in and show them the “path to salvation.” 

          The government finds support for its censorship efforts in the public because the public does not see the industry doing enough in the way of voluntary regulation.  If you can turn that around, then the support for these blatantly unconstitutional legislative efforts slips away.  The industry has addressed the problem, there is no need to continue the battle.

          Now make no mistake, the industry has taken laudable efforts to try to address some of these issues, like the ESRB Content Rating, and other efforts. It also gets unfairly blamed for matters outside of its control, such as with the recent flap over the content that could be unlocked in Oblivion 4: The Elder Scrolls – one of my favorite games, by the way, allowing the user to play topless characters on the PC version, but only if the user installs a third party modification.  At what point must video game publishers anticipate third party modifications when advising ratings boards of the nature of content found within the game?  The Oblivion situation takes this obligation to the extreme, but on the other hand, publishers should not soft sell or deliberately misrepresent the nature of content – even hidden content – found within the system’s own coding. 

          By taking on the appropriate degree of responsibility for the content found in video games, publishers and distributors can help educate parents and demonstrate to the general public that they have no desire to overrule the parents’ decision making rights for their children. To the extent that the industry can be seen to be working in cooperation with parents, instead of against them, the censors will find support for their legislative efforts gutted and the potential political game, undermined. 

          As I mentioned, the adult magazine, film, and website industries have faced these problems for years, with varying degrees of success.  Governmental relations and public education campaigns are essential tools in warding off restrictive legislation.  The courts will be there as a safety net, and we’re pretty good at stretching out that safety net when necessary, but the ultimate battle needs to be won in the court of public opinion, through voluntary industry regulation efforts.

          Thank you for your opportunity to share some thoughts.  I’ll be available for questions during the remainder of the session.

© Lawrence G. Walters (2011). All rights reserved.