The Law on Games

The Solution: Oklahoma and Louisiana

In Oklahoma and Louisiana, the message is clear: parents are not able to do it alone. While many states have pending laws to regulate games, Oklahoma and Louisiana have become high-profile battlegrounds on the subject. In both states, the legislation is based upon Miller vs. California, the 1973 Supreme Court decision in which a three-pronged test for sexually obscene material was defined. The three prongs specify that obscene materials bear the following characteristics:

1. The average person, applying contemporary community standards, will find, taken as a whole, that they appeal to the prurient interest;

2. They depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law;

3. And that, taken as a whole, they lack serious literary, artistic, political, or scientific value.

Or, as one justice famously put it: I don't know what it is, but I know it when I see it.

In June, Oklahoma Governor Brad Henry signed a bill proposed by Rep Fred Morgan (R), based strongly on the wording of Miller. Legislation which uses Miller's language to keep sexually oriented material away from minors has become widely accepted, but the Oklahoma bill adds violent games to the mix. Specifically, it forbids "any description, exhibition, presentation or representation, in whatever form, of inappropriate violence." (Read the full text of the bill.)

Later lines of the bill forbid specific instances of violence, such as that "used to shock or stimulate" and that in which characters "resort to violence freely." While seeming specific, these definitions remain quite vague; replace "Grand Theft Auto," which would be prohibited to minors by the bill, with the film "Die Hard," which would not. On June 24th, the ESA filed a lawsuit against the law on constitutional grounds; that action is pending.

In Lousiana, the situation is more complex. Two bills have been signed by Governor Kathleen Blanco. One, supported by Senator James David Cain, criminalizes the sale of sexually explicit games to minors, and relies exclusively on Miller vs. California. The second, drafted in part by Jack Thompson and supported by Rep. Roy Burrell, uses similar language to criminalize games with violent content in much the same way as the Oklahoma law.

Fred Morgan Roy Burrell

Senator Cain's bill, riding directly on widely accepted sexual obscenity statues, found immediate acceptance, both in Lousiana and with the games industry as a whole. Rep Burrell's bill, on the other hand, was immediately challenged as unconstitutional. While it relies on the language of Miller to define unacceptable violent content, there is a crucial difference in language. The first prong, rather than forbidding games which "appeal to the prurient interest," targets those which "appeal to a minor's morbid interest in violence."

As in Oklahoma, many have found the definition unacceptably vague. A great deal of entertainment certainly appeals to a minor's interest in violence, but there is no legally acceptable definition of the point at which that interest becomes morbid.

The most interesting aspect of the two Louisiana bills is that they were originally one. Carla Roberts, an attorney for Senator Cain who in part drafted his bill, explained that Louisiana legislators were aware that the language which eventually comprised Rep Burrell's bill would never pass legal muster. Rather than rethinking the legislation entirely, the original proposal was split into two, with Rep Burrell's bill -- the most likely to be challenged -- put forth first.

That strategy makes sound political sense. By raising a legal storm with the bill vaguely worded against violence, Senator Cain's Miller-derived companion passed with flying colors.

Video Game Laws Across North America >>