Guns, Video Games, Apps, and Video Programming

January 16, 2013. President Obama and Vice President Biden gave a joint speech at which they advocated greater regulation of guns and gun transactions. Afterwards, the President signed two memoranda. Most of the legislative proposals and regulatory actions contained in these speeches and memoranda do not relate to information and communications technology (ICT).

However, also at issue are actions that the federal government might take with respect to regulating video games, apps, movies, and the video programming of television broadcasters and other multichannel video programming distributors (MVPDs).

Obama's major proposals pertain to "universal background checks" and federal bans on certain categories of rifles and magazines.

Obama also stated that "As soon as I'm finished speaking here, I will sit at that desk and I will sign a directive giving law enforcement, schools, mental health professionals and the public health community some of the tools they need to help reduce gun violence." He added that there are "23 executive actions that I'm announcing today."

The President signed one memorandum titled "Tracing of Firearms in Connection with Criminal Investigations" and a second memorandum titled "Improving Availability of Relevant Executive Branch Records to the National Instant Criminal Background Check System". However, neither deals with ICT related matters.

He did state in his speech that legislators "have threatened to defund scientific or medical research into the causes of gun violence". He also said that "I will direct the Centers for Disease Control to go ahead and study the best ways to reduce it -- and Congress should fund research into the effects that violent video games have on young minds."

The day before, on January 15, Jay Carney, the White House Press Secretary (and no relation to the publisher of Tech Law Journal), conducted a news conference at which he answered questions regarding gun regulation. He was asked about "first-person shooter video games", and whether "the President is going to have a message tomorrow for people in the entertainment industry about their role in the gun violence". Carney responded, "I would ask you to wait for the President's event tomorrow".

Carney also said this: "we don't know, in terms of what impact and influence apps and videogames and entertainment has."

Also on January 15, Rep. James Sensenbrenner (R-WI) sent a letter to President Obama regarding "a disturbing new online video game" titled "Bullet to the Head of the NRA" that "allows users to download a video game inviting them to take head shots" at National Rifle Association (NRA) President David Keene and EVP Wayne LaPierre. Rep. Sensenbrenner urged President Obama "to publicly denounce this video game".

Rep. Sensenbrenner did not advocate passage of legislation to regulate violent video games, apps or programming. Nor did he advocate studies.

Legislation to regulate the content of video games, or even to mandate labeling, would likely be overturned by the courts for violating the First Amendment, because of the Supreme Court's June 27, 2011 opinion in Brown v. EMA & ESA.

The Supreme Court held that video games are speech protected by the First Amendment. The government can only restrict video games content if the restriction satisfies the Supreme Court's stringent strict scrutiny test. It must be "justified by a compelling government interest and is narrowly drawn to serve that interest".

See also, story titled "Supreme Court Holds First Amendment Protects Video Games" in TLJ Daily E-Mail Alert No. 2,250, June 28, 2011.

In contrast, the 2008 opinion of the Supreme Court in District of Columbia v. Heller, 554 U.S. 570, while detested by many gun control advocates, leaves the government with far wider latitude to regulate guns than Brown does for video games.

Also, on January 10, 2013, numerous communications and entertainment industry groups issued a joint statement regarding guns. They stated that "The entertainment community appreciates being included in the dialogue around the Administration's efforts to confront the complex challenge of gun violence in America. This industry has a longstanding commitment to provide parents the tools necessary to make the right viewing decisions for their families. We welcome the opportunity to share that history and look forward to doing our part to seek meaningful solutions."

The parties to this statement are the Directors Guild of America (DGA), Independent Film & Television Alliance (IFTA), Motion Picture Association of America (MPAA), National Association of Broadcasters (NAB), National Association of Theatre Owners (NATO), and National Cable & Telecommunications Association (NCTA).

The Congress is unlikely to pass any significant gun regulation bill because of the lack of votes. Many gun owners hold intense views about their gun rights. They are well enough organized by the NRA and other groups to know how their Representatives and Senators vote on gun bills. And, many are likely to vote, regardless of their party affiliation, solely on the basis of roll call votes on gun bills. This is a voting block that many legislators, from across the political spectrum, do not wish to cross.

Also, many legislators have already responded to President Obama. For example, recently elected Sen. Ted Cruz (R-TX), who was just named to the Senate Judiciary Committee (SJC), which has jurisdiction over many gun related matters, stated in a release that "It's sad to see the President of the United States trying to exploit the tragic murder of children as an excuse to push his own extreme anti-gun agenda. None of these proposals would have stopped the massacre at Newtown, but they would restrict the constitutional rights of every American."

Yet, many of these legislators are also under pressure from other constituents to do something about gun violence. Hence, because of the likely inability to pass a gun regulation bill, and despite the Brown decision, apps, video programming, and especially video games, that depict violence may make attractive targets for legislators intent on doing something in reaction to recent incidents of gun violence.

Mike Gallagher heads the Entertainment Software Association (ESA). He is also well know in ICT sectors for having been head of the National Telecommunications and Information Administration (NTIA) in the Bush administration. Effective as he may be as an advocate for the video games industry, he cannot also rely upon a large body of organized, motivated, single issue voters to back him with a grass roots lobbying campaign, as can the leaders of the NRA.

Hence, the video game industry may present itself as a softer target, at which politicians may ultimately take aim.

(Published in TLJ Daily E-Mail Alert No. 2,509, January 16, 2012.)