Game Law: Prior Restraint The Games - A Rant

When I first agreed to do these Game Law columns, I told the editors of Gamasutra.com that from time to time I would like to have the opportunity to rant about issues beyond the straightforward legal issues that I have been addressing to date. This is the first time I have taken the opportunity to rant on a little bit and I hope you find it both thought provoking and informative.

The Backstory

I recently did an interview for GameCloud.com. There were a bunch of questions about a whole variety of issues. Everything from why and how did you become a Game Attorney to specific problem issues that a lot of developers face. Among the questions asked was a question concerning some of the recent moves to regulate the industry and I responded by referencing a fellow Miami attorney named Jack Thompson. Jack Thompson being the self-appointed defender of the moral standards as they apply to everything from “Hot Coffee” to violence in games.

As a Miami attorney, I am well aware of Mr. Thompson in that he has been in and out of the local news for over 15 years. In my opinion, he is sort of a laughing stock and nobody in the legal community here takes him very seriously. However, as a result of some grandstanding on hot button topics, Mr. Thompson has once again come to the forefront in the general media, now attacking all sorts of games with all sorts of arguments. Anyway, in the interview I mentioned the possibility of debating Mr. Thompson but also stated that I did not want to validate his position by making any efforts to do so.

GamePolitics.com reviewed the Gamecloud article and posted a news story entitled “Hey - a Florida Attorney Who Loves Gamers!” and referring to me as the other game-crazed Miami attorney. The piece mentioned that I had expressed a willingness to debate Jack Thompson. I came into work the day that article was posted not knowing that it had been posted or even that the GameCloud interview was up yet. First notification I got that anything was amiss was an incoming email with the subject message “Just say when and where, Tom” and the body of the message was Jack Thompson's name, address and office and cellular telephone numbers. The message was also cc'd to Dennis McCauley.

Being a cautious man, rather than me responding to Thompson directly I assumed that this was some sort of prank or something. So, I sent a quick “WTF?” to Dennis McCauley over at Game Politics to figure out exactly what was going on. To make a very long story short, I became aware of the article and responded to Mr. Thompson's challenge by giving him a date, a time, and location. After much huffing and puffing he ultimately declined to meet and debate. Too bad, but not a surprise.

The Response

I received a large number of emails from gamers praising me for being someone who could stand up to Jack Thompson. And there is no doubt that I could. But that is not the point of this article. The point of this article is that gamers and game developers need to become a politically active force if they want to effectuate change. And talking to each other about what a (fill in your own expletive here) Jack Thompson is does not get anything done.

The Point

The recent efforts by Senator Hillary Rodham Clinton (D-NY) and Senator Joseph Lieberman (D-Conn.) to present the Family Entertainment Protection Act before Congress shows exactly how volatile the political situation concerning the game industry is. These extremely powerful people are advocating putting restrictions on the game industry that do not exist in film, literature, or even television. This sort of prior restraint on free speech rights guaranteed by the First Amendment is extraordinary and is something that should be opposed by anyone who loves or makes their living from games, regardless of their feelings about violence in games. Because even if you oppose violence in games, that sort of government regulation of the industry is really not the way to address it.

So what do gamers or even most developers do about this? They complain. They whine. They praise anyone who says something that they agree with and jeer anyone who says something they don't like. But they do not organize and more importantly, they do not bother to vote. Rough estimates are that there are upwards of 145 Million gamers in the United States . This number far exceeds the number of people in the Christian right or moral majority. However, those minorities vote in a block they have an excessive amount of power in the political marketplace. If even 10% of active gamers voted in a block on specific issues, politicians like Hilary Clinton would be very weary to take positions opposed to our industry. Heck, if she got “back off” emails from even 1% of gamers she would have never offered the bill in the first place. After all, it's no good to pander to one organized minority voting block at the expense of another larger organized minority voting block.

Other industries spend millions of millions of dollars on lobbying and on organizing voters. And while the ESA does a good job, its power is significantly limited by simple economics. And no one seems to be making any effort to organize and mobilize gamers as a political force. Mobilizing the people that play the games that we make could easily generate the amount of politic leverage that we need to protect our industry from unwanted interference and regulation by this government or any other elected government.

So treat this as a call to arms. Get out and vote. And when you vote, make sure that you learn the position that the candidates that you are considering take concerning freedom of speech and how it implies to computer and video games. Otherwise, you may end up working in an industry that is significantly handicapped due to restraints on expression that none of us want to have to deal with.

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(2005 Thomas H. Buscaglia. All rights reserved.)