AB3280: A Shot Across Our Bow

AB3280 is a bill proposed by Assemblywoman Sally Tanner of the California State Legislature. This bill was proposed in March and, in its original form, would have made it a misdemeanor to sell any computer game that included references to tobacco or alcohol products or packaging. There was much discussion of the bill among computer game developers but nobody took any action against it. As a result, it sailed through the Assembly with no opposition, passing with only minor amendments in early June.

At this point, Mark Welch swung into action. He telephoned a number of people and posted messages on various national networks alerting people to the very real dangers imposed by this bill. I was one of the people Mark contacted. At his urging, I wrote a letter to the Senate Judiciary Committee. About a dozen other people wrote similar letters. More important, Mark suggested that I call Margaret Pena of the American Civil Liberties Union in Sacramento. Margaret, in turn, explained to me the intricacies of the process of fighting the bill and convinced me of the importance of going to Sacramento to testify.

On Tuesday, June 26th, I drove to Sacramento to testify against the bill. It was an all-day affair. Margaret and I met to discuss last-minute strategy issues, then went over to the Capitol, where we spent about ten minutes chatting with Bill Lockyer, the Chairman of the Senate Judiciary Committee. It turns out that Bill is an avid game player. He liked Balance of Power and his current favorite is Star Saga II. He is also a fervent believer in the sanctity of the First Amendment.

At 1:30 the Judiciary Committee convened. It had 39 bills to consider in this session, so Chairman Lockyer moved things along at a brisk pace. There were bills on everything: raising the age requirement for jet skis from 12 to 16, increasing the penalties for use of false ID, minor wording changes in some laws. After three hours, they came to AB3280. Assemblywoman Tanner presented the law. Three witnesses spent 15 minutes decrying the evils of alcohol and tobacco, but saying very little about computer games. Then Chairman Lockyer asked if there were any opposition to the bill.

I and three others went up to the witness tables. I presented my testimony first, arguing that 1) the bill is unnecessary because there have never been any cases of alcohol or tobacco companies advertising their products in computer games; 2) the bill would prohibit many innocent games, including my own Balance of the Planet; and 3) computer games are an entertainment medium just like any other, and as such should be treated in the same way. There were a few questions. One Senator asked if my voice was used in any of the computer games. When I answered "No", he suggested that I had a good voice and ought to explore the possibility. Everybody laughed. Senator Lockyer also publicly noted that I was the author of Balance of Power, a game that he had enjoyed.

Next, a law professor argued that the bill as written had serious conflicts with the First Amendment and would probably be thrown out by the courts. Then a lawyer from Sega made his arguments.

At this point, one of the Senators offered a compromise: an amendment that would prohibit only paid advertisements for alcohol or tobacco products. Assemblywoman Tanner found it acceptable. The law professor admitted that this would probably not face major First Amendment problems. Then Chairman Lockyer asked if the industry could live with it. The Sega lawyer said that yes, he could live with it. I hummed and hawed, pointing out that it was still censorship without demonstrated need, but admitted that I could live with it, too. The question was called and the amended bill passed with only one dissenting vote: Bill Lockyer’s. He stuck by his First Amendment convictions.

AB3280 will almost certainly be approved by the Senate and be signed into law. The amendment makes it almost toothless, and so, all in all, we have won a victory here. We all owe thanks to Margaret Pena, Mark Welch, and the people who wrote letters opposing the bill (including Ken Williams of Sierra Online). Finally, we were all lucky that Bill Lockyer was the Chairman; he impressed me deeply with his combination of principle and pragmatism.

However, there are many troubling afterthoughts. First, there is the fact that we as an industry did a terrible job of resisting this bill. Margaret Pena was appalled that so few people came to Sacramento to oppose the bill. We did absolutely nothing when it was first proposed and allowed it to breeze through the Assembly unopposed. No letters were written, no faxes sent, no telephone calls made. Partly it was the cocky self-assurance that nobody would vote for so obviously silly a bill. Boy, were we wrong! Partly it was the feeling that somebody else would do something. Well, nobody did anything, and if hadn’t been for Mark Welch, the only opposition would have come from the ACLU.

But I am more concerned with broader, more strategic issues. My argument that computer games are an entertainment medium just like movies or books seemed to have no sway with the Senators. One Senator commented during the discussion that these games are "just for kids anyway." We have a serious image problem, folks. Our products are seen as cheap thrills for kids, sleazy or faddish, unworthy of serious consideration. And that makes them vulnerable to further restrictions. Consider, for example, the fact that the latest Tom Cruise movie, Days of Thunder, contains precisely the same tobacco and alcohol images that, in an arcade game, inspired and justified this bill. Yet you can be certain that the California Legislature will never pass a bill that would outlaw Days of Thunder. If you’re cynical, you’ll say that this is only because Hollywood has political clout. While this is true, it is equally true that Hollywood also has moral clout. They make movies that have artistic merit, movies that tackle political and social issues. They can wrap themselves in the First Amendment because they use it! We can make no such claim.

It is imperative that we computer game designers push harder on the upper end of the artistic range of the medium. We must work to establish in the minds of the public the notion that computer games are an art form, capable of addressing the same issues that other media address. This is the most positive action that we can take.

On the negative side, we must increase our sensitivity to our vulnerability. Sega has done a great disservice to the industry by creating the games that inspired AB3280. Their mistake was a failure in judgement attributable to an inability to perceive the special position that computer games occupy in the public psyche. We as an industry must remind ourselves that, in the eyes of the public, we are not an art form. To many, we are cheap junk entertainment, slightly unsavory. For now, they just shake their heads and mutter, "Somebody ought to do something about that." Tomorrow, maybe they will. If further legislative assaults on our industry arise, we’ll be hard put convincing legislators that we are deserving of the same protections that other art forms enjoy. We’re on thin ice; we had better keep our noses clean!

On a distantly related note, it seems that the Federal Government has also been active recently. I refer to Operation Sun Devil, in which the Secret Service raided a bunch of computer hackers, confiscating computers, hard disks, floppies, anything computerish. When I first heard of this operation, I cheered, but the more I have learned, the more frightened I am. The Secret Service, it would seem, was not very discriminating in choosing its victims.

They raided Steve Jackson Games, for example, and confiscated all their equipment, solely because one of Steve Jackson’s employees was a suspect, and Steve Jackson was preparing to publish a game about cyberpunks. The raid crippled the company and may kill it completely. Four months have passed since the raid, no charges have been filed, and the equipment has yet to be returned.

It appears that the Secret Service raided anybody whose name popped up in any hacker’s computer. If this is true, the implications for law-abiding people are frightening. Can you be sure that you have never sent E-mail to any hacker? Have you ever received E-mail from a hacker? What would happen to you if the Secret Service busted down your doors in the middle of the night, shoved a gun in your face, and confiscated everything electronic in your home? Could you recover?