Boy of Tomorrow: We just actually came from the Developers In The Crosshairs discussion where a number of very recent topics were discussed. I think I’m going to just jump right in and ask you for a reaction to Scalia’s very vocal opinion on video games and legislation affecting them… what do you think’s going to happen now?

Lawrence Walters: Well, what we’re seeing is what many lawyers who do this work already knew, which is a supreme court justice who would readily uphold game censorship laws if given the chance. The Supreme Court has not addressed any game cases yet: none of them have made it up to that point. Some of them are headed that way; we’re likely to see the 9th Circuit Court of appeal rule on the California legislation soon, and that could very well go up to the Supreme Court because the Supreme Court loves to reverse 9th Circuit Court. It’s the most reversed circuit of all of them, so I wouldn’t be surprised if in the next year or two we see one of these video game laws work their way up to the Supreme Court, and then we’re in real potential trouble.

It’ll be a close decision depending on what Justice Kennedy does, but I could see five supreme court justices determining that these laws are constitutional; that there’s sufficient evidence of harm caused by these video games –even though it’s largely anecdotal- and uphold a law which imposes significant restrictions on the sale or distribution of “harmful materials”, i.e. M-rated games, this is a significant concern because up til now the courts have said that games are protected speech. All the evidence and the studies and all this nonsense that the sensors have brought to court have been inadmissible and don’t establish any real evidence of harm.

If the Supreme Court gets ahold of one of these cases, I wouldn’t be surprised if they don’t do something similar to what they’ve done to the adult entertainment field. This is when they say “it’s not our position to really look at the evidence or really determine what the facts are. The city council or the state has determined, in its wisdom, that these things cause harm and we’re not going to second-guess them...”

The court is supposed to be a truth-finding body. It’s primary objective is to uncover the truth, but more and more we’re seeing this result-oriented decision-making by the conservative judges where they will determine how they want the case to come out and then come up with the most tortured logic to get you there. Even the Supreme Court is guilty of this, especially involving sex and violence. I fear that’s what we’re potentially going to see in the video game legislation realm if one of these cases works its way to the Supreme Court.

BOT: One of the big arguments is that video games aren’t protected under free speech, that they aren’t considered art. Why do you think that argument’s being made?

LW: The argument has been made and rejected in case after case. The courts have held that video games are clearly within the realm of protective speech , that they are progressive, that they have character development and thematic elements to them like in some of the greatest literature of our time. So there’s no reason to treat them differently than any other sort of media or literature. The very first case to deal with this issue actually went the other way, in the city of St. Louis, Judge Limbaugh found that video games are not in the realm of protected speech. Now, that was reversed, but there is certainly some precedent out there and I could see a conservative court –perhaps the US Supreme Court- seizing hold of that decision and… deciding that these games are merely interactive forms of media that don’t contain the typical thematic elements of other literature and therefore are not protected speech.

It would have to be a fairly tortured decision to get there because games are clearly within the realm of protected speech. We’re now seeing so many decisions in that regard that I think it would be difficult for a court to accept that at this point, so they’d need to go in a different way. If they’re going to uphold these pieces of legislation, they’re gonna go a different route and they’re likely going to change the test… they’re going to use what’s called the “substantial interest test” and determine if a city or state has any reasonable basis to believe that games cause harm. That way, even though [games] are speech, [the courts] are going to uphold time, place, and manner restriction.

That’s a dangerous road. It’s one that’s been used in other types of media that the courts don’t like and it’s possible that could occur here. The argument that games aren’t speech will ultimately fail. It’s cute but it’s not going anywhere, but there are other things to worry about.

BOT: What other things do we need to worry about?

LW: Like the fact that the court could change the test and start upholding these things one after another if the city or council or state puts in any evidence whatsoever that would give a reasonable belief that there’s any kind of harm.

Right now the courts are holding the government to a very high standard, the Compelling Interest Standard, and they’re requiring actual evidence of harm that would be admissible in a court. And that’s what you’re supposed to do: if someone’s going to impact fundamental constitutional rights, then you should at least have some kind of evidence that what you’re trying to regulate is causing harm. It makes a lot of sense.

Well, the court could change that test and that would be devastating. We’re also seeing some different tacts being taken. On the approach to regulating video games, as I predicted last year, the censorship groups have been dealt a string of losses by the courts and they’re looking at other ways to approach this issue. One of the things they’ve come up with is this taxation approach. What they’re trying to do is introduce legislation which will impose a “sin tax” on types of media including video games and adult entertainment.

BOT: They’ve got one up for approval in New Mexico, right?

LW: New Mexico and Wisconsin are the two that are considering it right now. That’s another tact that the courts haven’t addressed recently. It’s been twenty to thirty years before these tax cases have been around, but all of them in the past that have focused on a type of First Amendment-protected expression have been thrown out. There’s a real easy example, and I’m going to get into this in my speech later on: if you had a city council that didn’t like what a newspaper was saying about them, they could not decide to impose a 50% tax on that newspaper in town. If it’s real intent is to censor, the courts have always struck these taxes down as an insidious form of censorship that masquerades as a valid restriction or tax. The courts don’t like that, and if we’re seeing an attempt to restrict content of games based on a specific product, then it should be found unconstitutional. It’s been decades since any of these cases have come about, basically the law had been established so it’s surprising they’re going down this road again against video games and adult entertainment.

There’s a parallel life between these two industries and family values groups are approaching regulation of content in both video games and adult entertainment in a very similar way. So that’s the new tact they’re taking and it’s one we need to watch out for. The industry is going to need to be prepared for it and gear up for the large battles, because they’re going to happen all over the place and I wouldn’t be surprised if we see these taxation efforts be imposed in addition to the attempts to regulation being fought throughout the country right now.

BOT: Do you see the industry gearing up at all for the battles? I mean, we have bodies like the ESA and the ECA but they seem like they’re largely reactionary.

LW: I was just going to say, the problem with the industry is that it’s been historically reactive and not proactive. It’s not surprising, many other industries behave the same way: until something is an emergency, nobody really pays attention to it. It’s hard to get motivated to fight a fight that hasn’t happened yet, and that’s where we’re seeing some of the laziness and inattentiveness to the issues right now. The fire has not started to burn out of control yet. It’s smoldering and there are signs of problems on the horizons, but that’s the best time to gear up for the fight because you give yourself enough lead time.

When these cases emerge in the court system, they’re resolved in a very short period of time. Unlike most federal cases that take a year or two, sometimes five years, these cases involving free speech are on an expedited schedule. Usually there’s a temporary injunction hearing within a couple of weeks of the case being filed and the court expedites everything: everybody’s witnesses have to get there right away and they have to get the evidence together really quickly. There’s no time to come up with studies or research or expert reports or the kinds of things that are going to be necessary to defeat these kinds of legislation. The time to do it and have that evidence at our fingertips is now; not when there’s emergency, not when there’s a court hearing scheduled in two weeks. Everyone’s going to scramble at that point and they’re not going to put in their best evidence. They’re going to throw in stuff that’s been thrown together at the last minute.

That being said, the video game industry and the trade groups that represent it have done an impressive job of protecting free speech rights so far. They’ve won all the cases, they’ve been there each and every time. You can’t fault them for the job they’ve done so far. My only point is that strategies are going to change, and the gaming industry’s strategies are going to have to change with them because we’re going to be potentially caught off guard.

We have a supreme court which is more conservative than any that has been around in the past twenty or thirty years, and it’s going to uphold legislation which no one would’ve expected it to uphold based on past precedent. The Reagan/Bush administrations have packed the courts with conservative judges.

I see this every day in my practice: conservative judges are rejecting precedent which has been established for years and years. They’re even questioning fundamental rights like the right to Miranda warnings or the right to exclusionary rule in Fourth Amendment cases. Cases that have been established for years and years have been all of a sudden being reconsidered… to rely on what’s happened in the past is, I believe, a mistake because we’re now faced with a very conservative judiciary, we’re faced with a Supreme Court that will uphold just about anything directed at the regulation of sex and violence, and we have to be prepared for that.

This battle will likely have to be one in the court of public opinion. The PR battle is going to become exceedingly important. While you might win case after case, or lose one here and there, the censors will keep coming at you; whether it’s with a new tax or a new approach to regulation of distribution, they’re going to keep coming after you because it’s a money-making device for them. It’s donations from groups like the American Family Association, Morality In Media, it allows them to lobby and gain members. They’re going to keep doing it.

There’s never going to be a time in history where they go, “OK, we’ve done everything we can in regards to sex and violence so we can rest on our laurels.” It’s going to keep happening. So, we have to marginalize them. Now we have to identify the extremists for what they are. The industry needs to address what are legitimate concerns of parents with respect to ratings and information and reaction of the industry when issues occur. But to rely solely on the courts is, at this point, a mistake because they’re becoming more and more conservative and less and less reliable.

BOT: The last thing I want to talk about in this interview is this: one of the options they had for dealing with the misrepresentation of games is the Elvis Approach. Basically, the idea is that we can just weather this out and it’ll eventually stop being a scandal. Personally, I don’t agree with it and I think it’s taking a big risk. What do you think about it?

LW: I disagree with the approach. I believe you have to be proactive, you have to throw your hat in the ring, you have to get your message out. You can’t wait for things to happen because doing that will just mean the opposing party’s message gets out and yours doesn’t.

You know, certainly, the longer things are around the more accepted that they get. If you compare the current societal acceptance of violence in video games in 2008 with the perception in 2001, I think we’ve come a long way. I think we’ve established that, less and less, games are for kids only. I think we’ve largely overcome that, although there’s still some semblance of that remaining.

So, yes: in time, the country will start to accept what what was previously cutting edge –like Elvis and the Beatles- but to get society there you have to give them the information to make that decision and to come to that conclusion. You have to make them understand the free speech components, the artistic freedom, the important liberty interests at stake, the fact that we live in a free country and that we cannot dumb down entertainment and media to that which is acceptable to kids because we forfeit the rights of adults and we forfeit the rights of the children who will soon become adults.

We have to be ever watchful of that, and we have to educate parents, decision-makers, and lawmakers on our position. We can’t expect our opposition to do it –they won’t- and it’s not going to happen on it’s own. The laissez fair approach is a mistake; you have to constantly have your message out there and present it eloquently. You have to be careful of who you select as speakers. Some of the mistakes have been that the industry has allowed itself to be represented in the media who are just random individuals who have varying and inconsistent messages, sometimes not the most professional of messages. You know, this is an emotional issue and people get worked up about them. I understand why they say things that might sound unprofessional and reactionary when interviewed, but you have to make sure that your public spokespersons are educated and polished and media-savy and able to impact –positively- the public perception of video games.

BOT: All right, well, I think that says it all, so thank you for sitting down to take the time with me.

LW: Absolutely, take care.