The big news in video games the last couple days is Sens. Hillary Clinton and Joe Lieberman’s Family Entertainment Protection Act. Egged on by Rockstar Games’ inclusion of a sex mini game in the blockbuster Grand Theft Auto: San Andreas (first unlocked via the so-called “Hot Coffee” mod in the PC version of the game), the senators want to prohibit the sale of Mature or Adults Only games to kids younger than 17. The bill also calls for an “annual, independent analysis of game ratings.” The announcement of the bill can be found here.
After an afternoon spin through FindLaw, I think I’ve found the two most relevant Supreme Court cases for obscenity and regulating the sale of pornography to minors. The full text of the Clinton-Lieberman bill isn’t available, and I haven’t yet looked at similar laws in place in several states. But a read through Miller vs. California (1973) — which set forth the current standard for defining what material is obscene and therefore not afforded First Amendment protection — and Ginsberg vs. New York (1968) — which allowed for restricting sales of sexual materials to minors even if the materials aren’t considered obscene for adults — suggests that coming up with a constitutional law regulating the sale of video games will be difficult.
The very few (I can think of only three) video games that depict nudity and semi-explicit sex do not meet the standard for obscenity as defined in Miller. And because the court’s discussion of obscenity — in Miller, Ginsberg and other cases — is confined to sexual materials, the violence at issue in other “objectionable” video games cannot be called obscene, whether it is sold to adults or to children. This will hold true until and unless obscenity standards are changed to include violent material.
The 1973 Miller vs. California case, involving mass-mailed advertisements for sexually explicit books and decided 5-4, formulated a new standard for defining “obscene material.” The three-part standard is: “(a) whether ‘the average person, applying contemporary community standards’ would find that the work, taken as a whole, appeals to the prurient interest… (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.”
The decision specifically notes that a “community standard” does not mean a national standard; an obscenity case in Las Vegas could turn out differently than in Omaha, for example. The court also says it is not defining the specific sexual conduct that state laws should define as obscene when depicted – but then it helpfully gives some examples: “(a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated. (b) Patently offensive representations or descriptions of masturbation, excretory functions, and lewd exhibition of the genitals.”
Leave aside, for a moment, the gaping holes in this standard. (It doesn’t define what “patently offensive” means. And deciding whether a work “lacks serious literary, artistic, political, or scientific value” is as vague and impossible as the previous standard, which held that a work is obscene only if it is “found to be utterly without redeeming social value.” Despite mocking this earlier standard throughout, the Miller vs. California ruling merely rewords it.) By this standard, no video game on the market today could be considered obscene.
There are, to my knowledge, no Adults Only console video games (Grand Theft Auto: San Andreas doesn’t count, as the sex minigame has been removed). The few games that include nudity — Playboy: The Mansion, BMX XXX, God of War — barely come close to late-night Cinemax or Playboy itself. Showing a boob or depicting poorly rendered, fully-clothed oral sex cannot be considered “patently offensive.”
To the extent that Miller vs. California seems relevant to video games at all, it’s only in these very few cases where sex or nudity is involved. The ruling would have nothing to say about the 95 percent of video games that don’t depict sex or nudity: “Under the holdings announced today, no one will be subject to prosecution for the sale or exposure of obscene materials unless these materials depict or describe patently offensive ‘hard core’ sexual conduct specifically defined by the regulating state law, as written or construed.”
Grand Theft Auto’s “Hot Coffee” incident may give Hillary Clinton and Joe Lieberman a shocking example to use in introducing their bill. But it’s a straw man argument. Obscenity as defined by the Supreme Court is about sex; video games are primarily about violence.
— November 30, 2005