The Tortuous Legality of Labeling Heinous Video Games

Recently, Gov. Arnold Schwarzenegger issued a statement praising the United State Supreme Court for agreeing to hear his appeal of a 9^th Circuit ruing which declared a bill the GOP governor signed in 2005 requiring the labeling of violent video games and prohibiting their purchase by minors is a violation of the First Amendment’s right to free speech.

The measure, AB 1179 by then Assemblyman Leland Yee, a San Francisco Democrat, had it ever taken effect, would have required violent video games – as defined – be labeled with a solid white “18” outlined in black no smaller than 2 inches by 2 inches.

The stated intent of the bill is to limit the exposure of minors to violent video games, which Yee and the bill’s supporters argue contributes to anti-social and violent behavior in youths.

Most of the bill’s three pages are spent attempting to define what exactly constitutes a “violent” video game.

A “violent” video game is defined in the law as offering its player options that include “killing, maiming, dismembering or sexually assaulting an image of human being.”

In order to receive a label, the game must satisfy one of two tests.

The first test has three components:

1. “A reasonable person, considering the game as a whole, would find             appeals to a deviant or morbid interests of minors.”

2. “It is patently offensive to prevailing standards in the community as to             what is suitable for minors.” And,

3. “It causes the game, as a whole, to lack serious literary, artistic, political             or scientific value for minors.”

Here is the second test for a video game to warrant a label:

“Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel or depraved that it involves torture or serious physical abuse to the victim.”

The “victim” being a creation of the video game’s software.

Some general guidance in determining if the “killing” in the video game is “especially” heinous, cruel or depraved is provided.

“Pertinent factors” include “infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body and helplessness of the victim.”

Again, the victim being a construct of the video game’s programming.

Some drafting issues arise with this particular definition of violent video game.

What exactly is heinous, cruel and depraved? When is the line crossed into torture or serious physical abuse?

Like the word “reform,” definitions of depravity, torture and cruelty differ depending on the definer.

The Marquis de Sade would certainly hold a divergent view on the topic than Mother Teresa.

This ambiguity was raised by opponents of the bill.

So Yee and the bill’s supporters struggled to find a neutral yardstick that would explicate these terms in a manner all parties could agree on.

The solution: Jury instructions in federal death penalty cases. In Yee’s bill, however, the defendant becomes a “player.”

In its litigation challenging the law’s constitutionality, the Video Software Dealers Association argues, among other things, that the definitions the state ultimately used in determining what constitutes a violent game are subjective.

Adding some credence to that argument, “heinous” is defined in the law as “shockingly atrocious.”

To reach the “heinous” threshold, the killing in the video game must include “additional acts of torture or serious physical abuse of the victim as set apart from other killings.”

The same problem persists: Where does serious physical abuse stop and torture begin?

“Serious physical abuse” is defined as a “significant or considerable amount of injury or damage to the victim’s body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement or substantial impairment of the function of a bodily member, organ or mental faculty.”

Does one of those Lizard Dudes in Doom fade into unconsciousness after one of his members is substantially impaired through the infliction of extreme physical pain when the player treats him to the business end of a shotgun?

Or is the Lizard Guy even subject to Yee’s law because he’s a Lizard Guy?

Probably, since he shares human characteristics such as walking upright, making threatening noises and attempting to kill what he doesn’t understand.

But does that mean simply offing him constitutes “violent,” as the law defines it, or does the player first need to roast the Lizard Guy over low flame, take a bite out of his haunch and pronounce it similar to chicken to qualify.

The law distinguishes serious physical abuse from torture in that the virtual victim is “not necessarily conscious of the abuse at the time it’s inflicted.”

But, the law says, the player must “intend the abuse apart from the killing.”

As for “torture,” it can include mental as well as physical abuse of the victim and the victim “must be conscious of the abuse as it is inflicted and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.”

So would torture, at least the mental kind, be shouting racial Lizard Guy epithets or disparaging remarks about the length of his tail at the computer screen prior to unloading a ray gun on him?

Under the law, torture and serious physical abuse appear to be subsets of “cruel.”

While it seems implicit that torture and the inflicting of serious physical abuse would involve a hefty amount of cruelty, the law notes that “cruel” is when the defendant – er, player – “intends to virtually inflict a high degree of pain by torture or serious physical abuse of the victim in addition to killing the victim.”

The law isn’t clear as to whether this high degree of pain inflicting occurs prior to or post the killing.

Presumably before since if the virtual Lizard Guy were capable of feeling pain it wouldn‘t be much of an issue if a hole had already been blown in his scaly chest at a spot corresponding, presumably, with where his lizard heart previously beat.

Finally, comes “depraved.” It occupies the middle ground between “cruel” and “heinous.”

In order to qualify as “depraved,” the player “relishes the virtual killing or shows indifference to the suffering of the victim.” This would be demonstrated through the torture or serious physical abuse heaped on the Lizard Dude.

No surprising he video dealers stumbled on subjectivity as an argument.

In its opinion siding with the dealers, the 9^th Circuit notes that in its appeal, the state now concedes its second definition of violent video games – and all its heinous, depraved and cruel torture – is, in fact, unconstitutional because, as the trial judge pointed out, it “doesn’t provide an exception for material that might have some redeeming value to minors.

Good luck with the Supremes.

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