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The Future of Video Games in the Courts and Visions of an Apocalyptic Alternate Universe

Will games get challenged again? What if things had gone differently? Was there a plan B?

The U.S. Supreme Court decided to protect video games. This decision was largely expected, as this Supreme Court has become known for being stalwarts of the First Amendment. Mess with it, mess with them. In the case of California's case for violent video games, the court said no.

But what if everybody was wrong? Was there a backup plan?

"Ha!" is not the response I would have expected, but that's exactly what Entertainment Consumer Association president Hal Halpin told me, just hours after the court made its decision public.

"Well, if there was a plan--from the perspective of all of the orgs [organizations] and entities involved on the EMA [Entertainment Merchants Association] side of the case--I wasn’t aware of it!" he said. "But seriously, I’m not sure how one could plan for that contingency. That alternative would be so horrific that it’s difficult to wrap your head around the more you consider the potential negative consequences..."

If you're someone who was afraid one version of Monday's outcome would result in the possible collapse of creative freedom in game development, you have Halpin and his group to thank. Halpin and the ECA are gaming's public defenders, men and women fighting for industry rights.

You could tell the tension was thick, based on Halpin's nervous tweets prior to the decision. And though the conventional wisdom suggested a decision in favor of games, he was surprised.

Above: an artist's depiction of government legislators fighting off armies of angered game fans.
Above: an artist's depiction of government legislators fighting off armies of angered game fans.
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"I was certainly blown away," he said. "I don’t think that even the most optimistic of us expected a 7-2 decision. It was also worrying that it was taking so long to hear back from the Court, so the timing too was surprising."

California state senator Leland Yee was the chief architect of the California bill. Lee held a press conference in San Francisco, revealing his disappointment in the decision. In the decision itself, however, was a silver living for Yee. Justice Alito didn't vote against the industry, but did not agree with the majority opinion and even outlined, in broad strokes, a path to a new bill.

"I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires," said Alito. "I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us."

Yee said he'd be looking down this new path, but when I asked his office whether there was a timeline on a revised bill, Yee's chief of staff, Adam Keigman, responded with a flat: "no."

It's key, Texas lawyer and self-professed video game fan Jerry Hall told me, that Alito voiced his opinion and was not the "court opinion." There would have been less cause for celebration.

The original Mortal Kombat was one of the games responsible for the ESRB's formation in the 90s.
The original Mortal Kombat was one of the games responsible for the ESRB's formation in the 90s.

"We'd probably see several more states trying to craft laws in keeping with the logic used in his opinion," said Hall. "On the other hand, if the law had been declared constitutional, there wouldn't be a lot the industry could do to challenge the law through the courts, and we'd be staring at some terrible precedent for future cases."

Hall brings up a question that Halpin dodged: if things went sour, what options did games have to fight back?

"The best option would be trying to convince lawmakers to change the law in question, because the courts wouldn't be able to do anything to change it if it were declared constitutional," he said. "Lawmakers could always repeal it if they wanted to do so, but they wouldn't be forced to do it--and the landscape of the First Amendment would be a lot murkier, depending on the logic they used to uphold Yee's law. "

Basically, it'd be hard as hell.

Though Alito provided a ray of sunlight to Yee and his supporters, convincing the public that it makes sense to spend taxpayer money, especially in today's political climate, would be tough.

"It does more than leave the door open there," admitted Halpin. "And absolutely that’s the concern. Just a few years ago, we had legislative terms where we were battling over 100 anti-games/anti-gamer pieces of legislation and that is not something that we’d want to revisit. That said, I believe that this decision makes it very prohibitive for politicians to rationalize spending the public’s money on substantially similar efforts going forward."

This won't be the end of the fight, but it's an important victory. For now, its supporters can rest easy. The fight was expected to go their way, but crazier things have happened. Maybe it didn't, and in some alternate world, we're headed towards a future with creatively gimped games.

But, hey, that didn't happen.

Patrick Klepek on Google+