"Yet minors can't enter these premises, can they?" Right. Sorry, but I can't write a whole treatise explaining all of these things. And keep in mind this refers only to sexual material on the borders of obscenity (strip club regulations). The worst of video game material is more like an R-rated (or NC-17, if you will) movie.
""that the people, not the government, in the marketplace of ideas, decide what speech is valued and what isn't." "Via their elected officals."
No. The marketplace of ideas concept is considered beyond the realm of political control. It's basic First amendment philosophy that some rights cannot be touched by majoritarian decisionmaking. If that were the case, things like KKK/Nazi rallies/flag-burning could've easily have been banned by elected officials, since these ideas are generally unpopular with the public. They are legal activities because the First amendment, even the kinds everybody hates, can't be touched by elected officials.
"No, the spirit of the law doesn't protect: 1) Hate Speech \ Slander \ Libel \ Obscenity. 2) Yelling fire in a crowded theatre. 3) Inciting a riot. 4) Calling for the murder of someone."
I mentioned all of that at the bottom of my post. And you're incorrect on the first one - hate speech is (usually) protected. See Collins v. Smith, RAV v. St. Paul.
"What law are you refering to? There is no law. Only a voluntary ratings system. The only "regulation" proposed here is directed towards minors who do not have adult rights to begin with."
Uh, the law everybody's posting about here. Which got struck down the other day. The ESRB system is directly not at issue here. The Illinois was content specific regulation via sexual activity and violence.
"This has nothing to do with the First Amendment, there is no censorship here. This has to do with billion dollar companies (read lobby group) losing out on a large portion of their market."
The fact that a large corporate industry is involved doesn't make the First amendment interests any less important. Nor does there have to be direct censorship. As I said before, laws that regulate protected free speech material specifically by content (even "offensive" content like violence and sexual material) get strict scrutiny and cannot survive without a compelling state interest. Illinois had a compelling state interest, but if you read the opinion, the judge ruled they couldn't back it up accurately with good evidence. The law was also considered vague, the definitions of human-to-human violence, sexual content, and its potential conflicts with ESRB, would result in confusion among store owners. Vague laws are usually struck down because it's unclear what conduct is affected by the law, resulting in self-censorship and a chilling effect on free speech.
""Video games (as they are largely made today) don't fit the above categories." "That is your opinion. Some people consider violence and explicit sexual content to be obscene; both of which appear in games."
That's more your opinion. No video game has ever been declared to be legally obscene in America. You may think extreme violence or what probably amounts to softcore, R-rated type sexual material (which is really as far video games have gone in terms of sexual content) qualifies as legally obscene, but I don't think any court in America has ever gone that far.
Again, they don't have to directly censor, specifically ban material in order for it to be a First amendment problem. Laws regulating content of protected speech are shut down if the state can't demonstrate a compelling state interest why they should remain.
Put aside the commerce issue. You have to look at the video games themselves. Any activity that contains an expressive element can be regarded as speech as far as the First amendment is concerned. Speech doesn't have to strictly be about political issues and current events (this forum, or picketing). To show you how far the First amendment takes it, nude dancing (a la strip clubs) is protected speech. Burning an American flag is protected speech. Video games can easily have expressive elements within them, whether it's Solid Snake talking about nuclear proliferation, or even the stories in GTA, a lot of which are parodies of Hollywood gangster stereotypes.
The First amendment doesn't tolerate laws that specifically regulate the content of speech, or viewpoints regarding it. Otherwise, potentially criminalizing protected speech could produce a chilling effect on that speech, and thus hurt the basic spirit of the First amendment - that the people, not the government, in the marketplace of ideas, decide what speech is valued and what isn't. The law specifically regulates violence and sexual material in games. The mere presence of violence and sex won't disqualify it from the First amendment, but the state needs to come up with a compelling justification (and by compelling I mean extremely important, backed up by good data) on why the law is valid. They failed to do that in this case, and the law goes down.
There are some things that are traditionally unprotected by the First: obscenity, libel, fighting words. The state has more authority to regulate these kinds of speech. Video games (as they are largely made today) don't fit the above categories.
That's a really interesting question, actually. Certainly Playboy, with its tame softcore spreads, in addition to its articles, would probably not in any jurisdiction, meet the classification of an "obscene" product. However, sexual material material that runs close to the definition of obscenity can still be legally regulated by the government. Like strip clubs. You can't legally have a full ban on exotic dancing in your jurisdiction, although you can legally zone it off to some corner of the town and make the dancers wear g-strings and pasties, and make sure that no minors get in the club. Perhaps the same reasoning applies to softcore publications.
Being in bed with someone's ideology isn't the same as being in bed with business interests, as the former applies to similar views on the law and the political process. The latter implies that personal wealth and gain have more to do with the decision. Lifetime tenure means no necessity to run for political office, thus no necessity to make favorable opinions in order to curry favor with business interests. You can read the reasoning of Bush v. Gore as a pretext for political bias, that's fine, but you still would have to dispute whether that particular legal reasoning itself was incorrect.
Your presumption that the judge favored lax standards for regulating business is speculative, unless you're willing to mine that particular judge's record to show bias in favor of business interests. And even if that were true, I don't see anything wrong with a judge using an individual philosophy to help guide decisions - all judges do that anyway. All that matters is whether his legal reasoning itself is sound. What counts is the actual law, on which other judges and jurisdictions can use as precedent. The presumption that this case was decided on proper First amendment grounds, well the reasoning lies well within the 50-page opinion.
Read the full opinion. There's a pretty complex framework on how laws may violate the First amendment.
The purchase of the game is besides the point. It's the video games themselves which are the issue. The court recognizes that video games, like books and films, also contain elements of speech protected by the First.
The law is unconstitutional, in short, because:
1. Laws regulating the content of speech are presumptively invalid unless the goverment has a compelling state interest (i.e. really freakin strong and backed up by good data, without any alternatives available). Protecting kids from harmful material is indeed a compelling state interest. However, the findings of the law have no basis, as the social science evidence they used to back it up ambiguously points to raising some levels of aggression in children immediately after playing such games. But that's going to cut it - the speech has to directly incite lawless behavior imminently, and the subject has to be likely to perform such action under the First amendment. See the case Brandenberg v. Ohio.
2. Vagueness. The court deemed that the provisions regulating what constitutes violent or sexual explicit material was too ambiguous. Vague laws are unconstitutional because it's unclear what conduct is, isn't okay under it, and thus could create a chilling effect on free speech.
Plaintiffs, not prosecutors, is the correct term in a civil case for the party that is bringing the legal action.
Sales limiting alcohol, tobacco - well neither of those activities contain any "speech" element in them and don't fall under the First amendment analysis.
As for porn and sexual material... that's a whole other can of worms. Depending on "contemporary community standards", pornography can be legally obscene, obscene materials get no protection under the First amendment, and the state can regulate it however they want. Sexual material on the margins of obscenity (like nude dancing) are also prone to allow more government regulation and protections from minors.
No, such material would most likely be legally obscene. Obscenity gets no protection under the First Amendment, and higher standards are used for protecting minors from obscenity. Violent material has never been classified as obscene. The mere presence of sex (usually) isn't enough to make the material obscene, either.
A judge with lifetime tenure could really care less about the business interests. If the business interests were so powerful, then they could have prevented the law from being passed in the first place, but clearly other interests weighed against them.
The decision was based on an interpretation of the First Amendment. Read the full court opinion yourself to see.
http://www.ilnd.uscourts.gov/RACER2/recent_opinion s.cfm?judge=Kennelly
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"Yet minors can't enter these premises, can they?"
Right. Sorry, but I can't write a whole treatise explaining all of these things. And keep in mind this refers only to sexual material on the borders of obscenity (strip club regulations). The worst of video game material is more like an R-rated (or NC-17, if you will) movie.
""that the people, not the government, in the marketplace of ideas, decide what speech is valued and what isn't."
"Via their elected officals."
No. The marketplace of ideas concept is considered beyond the realm of political control. It's basic First amendment philosophy that some rights cannot be touched by majoritarian decisionmaking. If that were the case, things like KKK/Nazi rallies/flag-burning could've easily have been banned by elected officials, since these ideas are generally unpopular with the public. They are legal activities because the First amendment, even the kinds everybody hates, can't be touched by elected officials.
"No, the spirit of the law doesn't protect:
1) Hate Speech \ Slander \ Libel \ Obscenity.
2) Yelling fire in a crowded theatre.
3) Inciting a riot.
4) Calling for the murder of someone."
I mentioned all of that at the bottom of my post. And you're incorrect on the first one - hate speech is (usually) protected. See Collins v. Smith, RAV v. St. Paul.
"What law are you refering to? There is no law. Only a voluntary ratings system.
The only "regulation" proposed here is directed towards minors who do not have adult rights to begin with."
Uh, the law everybody's posting about here. Which got struck down the other day. The ESRB system is directly not at issue here. The Illinois was content specific regulation via sexual activity and violence.
"This has nothing to do with the First Amendment, there is no censorship here.
This has to do with billion dollar companies (read lobby group) losing out on a large portion of their market."
The fact that a large corporate industry is involved doesn't make the First amendment interests any less important. Nor does there have to be direct censorship. As I said before, laws that regulate protected free speech material specifically by content (even "offensive" content like violence and sexual material) get strict scrutiny and cannot survive without a compelling state interest. Illinois had a compelling state interest, but if you read the opinion, the judge ruled they couldn't back it up accurately with good evidence. The law was also considered vague, the definitions of human-to-human violence, sexual content, and its potential conflicts with ESRB, would result in confusion among store owners. Vague laws are usually struck down because it's unclear what conduct is affected by the law, resulting in self-censorship and a chilling effect on free speech.
""Video games (as they are largely made today) don't fit the above categories."
"That is your opinion.
Some people consider violence and explicit sexual content to be obscene; both of which appear in games."
That's more your opinion. No video game has ever been declared to be legally obscene in America. You may think extreme violence or what probably amounts to softcore, R-rated type sexual material (which is really as far video games have gone in terms of sexual content) qualifies as legally obscene, but I don't think any court in America has ever gone that far.
Again, they don't have to directly censor, specifically ban material in order for it to be a First amendment problem. Laws regulating content of protected speech are shut down if the state can't demonstrate a compelling state interest why they should remain.
Put aside the commerce issue. You have to look at the video games themselves. Any activity that contains an expressive element can be regarded as speech as far as the First amendment is concerned. Speech doesn't have to strictly be about political issues and current events (this forum, or picketing). To show you how far the First amendment takes it, nude dancing (a la strip clubs) is protected speech. Burning an American flag is protected speech. Video games can easily have expressive elements within them, whether it's Solid Snake talking about nuclear proliferation, or even the stories in GTA, a lot of which are parodies of Hollywood gangster stereotypes.
The First amendment doesn't tolerate laws that specifically regulate the content of speech, or viewpoints regarding it. Otherwise, potentially criminalizing protected speech could produce a chilling effect on that speech, and thus hurt the basic spirit of the First amendment - that the people, not the government, in the marketplace of ideas, decide what speech is valued and what isn't. The law specifically regulates violence and sexual material in games. The mere presence of violence and sex won't disqualify it from the First amendment, but the state needs to come up with a compelling justification (and by compelling I mean extremely important, backed up by good data) on why the law is valid. They failed to do that in this case, and the law goes down.
There are some things that are traditionally unprotected by the First: obscenity, libel, fighting words. The state has more authority to regulate these kinds of speech. Video games (as they are largely made today) don't fit the above categories.
That's a really interesting question, actually. Certainly Playboy, with its tame softcore spreads, in addition to its articles, would probably not in any jurisdiction, meet the classification of an "obscene" product. However, sexual material material that runs close to the definition of obscenity can still be legally regulated by the government. Like strip clubs. You can't legally have a full ban on exotic dancing in your jurisdiction, although you can legally zone it off to some corner of the town and make the dancers wear g-strings and pasties, and make sure that no minors get in the club. Perhaps the same reasoning applies to softcore publications.
Being in bed with someone's ideology isn't the same as being in bed with business interests, as the former applies to similar views on the law and the political process. The latter implies that personal wealth and gain have more to do with the decision. Lifetime tenure means no necessity to run for political office, thus no necessity to make favorable opinions in order to curry favor with business interests. You can read the reasoning of Bush v. Gore as a pretext for political bias, that's fine, but you still would have to dispute whether that particular legal reasoning itself was incorrect.
Your presumption that the judge favored lax standards for regulating business is speculative, unless you're willing to mine that particular judge's record to show bias in favor of business interests. And even if that were true, I don't see anything wrong with a judge using an individual philosophy to help guide decisions - all judges do that anyway. All that matters is whether his legal reasoning itself is sound. What counts is the actual law, on which other judges and jurisdictions can use as precedent. The presumption that this case was decided on proper First amendment grounds, well the reasoning lies well within the 50-page opinion.
Read the full opinion. There's a pretty complex framework on how laws may violate the First amendment. The purchase of the game is besides the point. It's the video games themselves which are the issue. The court recognizes that video games, like books and films, also contain elements of speech protected by the First. The law is unconstitutional, in short, because: 1. Laws regulating the content of speech are presumptively invalid unless the goverment has a compelling state interest (i.e. really freakin strong and backed up by good data, without any alternatives available). Protecting kids from harmful material is indeed a compelling state interest. However, the findings of the law have no basis, as the social science evidence they used to back it up ambiguously points to raising some levels of aggression in children immediately after playing such games. But that's going to cut it - the speech has to directly incite lawless behavior imminently, and the subject has to be likely to perform such action under the First amendment. See the case Brandenberg v. Ohio. 2. Vagueness. The court deemed that the provisions regulating what constitutes violent or sexual explicit material was too ambiguous. Vague laws are unconstitutional because it's unclear what conduct is, isn't okay under it, and thus could create a chilling effect on free speech. Plaintiffs, not prosecutors, is the correct term in a civil case for the party that is bringing the legal action. Sales limiting alcohol, tobacco - well neither of those activities contain any "speech" element in them and don't fall under the First amendment analysis. As for porn and sexual material... that's a whole other can of worms. Depending on "contemporary community standards", pornography can be legally obscene, obscene materials get no protection under the First amendment, and the state can regulate it however they want. Sexual material on the margins of obscenity (like nude dancing) are also prone to allow more government regulation and protections from minors.
No, such material would most likely be legally obscene. Obscenity gets no protection under the First Amendment, and higher standards are used for protecting minors from obscenity. Violent material has never been classified as obscene. The mere presence of sex (usually) isn't enough to make the material obscene, either.
A judge with lifetime tenure could really care less about the business interests. If the business interests were so powerful, then they could have prevented the law from being passed in the first place, but clearly other interests weighed against them. The decision was based on an interpretation of the First Amendment. Read the full court opinion yourself to see. http://www.ilnd.uscourts.gov/RACER2/recent_opinion s.cfm?judge=Kennelly