A Stitch in Haste

Louisiana has decided that children must be protected from fun:

The law — enrolled as Act 441 — states that sales of video games are prohibited to minors if "The average person, applying contemporary community standards, would find that the video or computer game, taken as a whole, appeals to the minor's morbid interest in violence."
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Rather than define "violent," the bill was carefully crafted to mimic the Miller obscenity test — the gold standard upon which modern anti-obscenity legislation has been crafted.

Of course the whole point of the Miller obscenity test is that it applies to, um, obscenity (i.e., pornography) — and nothing else. There is no reason to suspect that the Supreme Court, especially given its recent Internet-and-children cases, is at all inclined to extend Miller v. California, 413 U.S. 15 (1973), beyond obscenity. These hack Louisiana legislators may be a bit too quick to pat themselves on the back for their cleverness, given that every single federal court that has heard a challenge to video game restrictions has struck down those laws. Every single time.

And besides, if video games can be banned as "too violent," then one wonders whether toy guns will be next, or Nerf missiles, or this.

Put aside the First Amendment concerns, Miller notwithstanding, as summarized here.

This law is still unconstitutionally vague. The law still requires a court, masquerading as an "average person, applying contemporary community standards," to define "violence." So the vagueness problem persists.

What is a "violent" video game? As I blogged previously: what precisely is that supposed to mean? Is my 180 mph Xbox 360 racing game "violent"? If reasonable people cannot easily discern a law's exact proscription, then that law violates due process. (The idea that states could simply rely on Entertainment Software Rating Board ratings is misplaced. First, the ESRB is a private body and not a regulatory agency. Second, It doesn't solve the problem: What is a "Mature" or "Adult" video game? What is "violence," "mild violence" or "intense violence"? What is "gore"? What are "strong lyrics" or a "drug reference"? These are some of the subjective factors that are used to determine ESRB ratings.)

Now repeat that whole exercise, but for the word "morbid."

Want more? Miller also demanded that an "obscene" work, to forfeit First Amendment protection, must also lack "serious literary, artistic, political, or scientific value." Some of the best art I've encountered recently, both visual and musical, has been from my Xbox 360 games. And I've learned scientific concepts too, such as the trajectory of rocket-propelled grenades fired down stairwells and the physics of uphill turbo-drifting in high-speed auto races.

Seriously though, you would think that Louisiana would have more pressing problems right now that crafting warm fuzzy feeling, "Blame Canada" child protection laws to rob kids of their playful amusements.

UPDATE: A federal judge has granted a temporary restraining order preventing the law from taking effect. Typically a judge will not grant such an injunction unless there is a strong likelihood that the law will in fact be deemed unconstitutional. Stay tuned.