An Oklahoma Court enjoined the enforcement of an act restricting the distribution of Video Games to minors (via Law of The Game) (Entertainment Merchants Association v. Henry, Case No. 5:06-cv-00675 (W.D. Okla.)). Though the ruling regards the sell of Violent Video Games, and not Pornography or Gambling, it has several implication on the suggested Israeli Internet Censorship Act (also called, for formality reasons: Filtering of Inappropriate Content to Minors Act). In Brief, the act mandates all internet service providers to block Adult Websites (with such vagueness as described here) unless those identify as adults.
The Oklahoma Act required that no Video Game which is harmful to minors be displayed. The definition of Inappropriate Violence, as described in the court’s ruling was that either the average adult would find the video game offensive, or contains a characteristic out of a non-exclusive list that includes “Glamorising Violence” and other matters (see p.2 to the ruling).
While finding the act unconstitutional, the court cited the recent Arnold Schwartzenegger ruling, where the California Court Found a similar act unconstitutional. The major implications in this ruling reflect the legislation process in Israel in four major aspects.
The first: Content Based Restrictions
The Court ruled that “Whether the games are “suitable,” however, is not the applicable standard for the propriety of the government placing a content-based restriction on dissemination of protected speech, even dissemination to minors.” (p.6); (See also (Hebrew)). The same wrong standards are implemented in the Israel Act. When Asked who will set the standards for content filtering, Israeli Telecommunication Minister, Ariel Atias, replied: “A public committee with the appropriate persons dealing with technology, education and law will deal with the aspects of the [act’s] execution”, he also stated that commercial corporations will deal with the content filtering, removing the authority from the government to the private sector, limiting speech once more.
Second: Illegal Content
Whilst it is more than obvious that illegal content should be blocked from everyone, inappropriate content is undefined. The court stated that inappropriate content, as long as it is legal, may not be blocked since whilst when dealing with Illegal content such as “sexually explicit or “obscene” material, which is unprotected by the First Amendment, rather than the protected expression at issue in this case.” (see also, Hebrew). Blocking legal content, for the sake of protecting minors is problematic since it restricts legal speech (see, for example, Ashcroft V. ACLU (03-218) 542 U.S. 656 (2004) ). The Israeli Act has the same features, as it restricts access to legal content. For this reason alone one should stop the legislation process. The definition of inappropriate violence in the Oklahoma act is as wide as the definition in the Israeli act and the definition of Violent may also include the sexually explicit content, which “is graphic violence used to shock or stimulate” according to the Oklahoma act.
Third: Don’t Confuse Me With Facts
The court stated explicitly that “There is no support in the record, let alone “substantial evidence,” for Defendants’ conclusion that allowing dissemination of violent video games to minors is harmful to those minors or any others. Beyond Defendants’ generalized statements, there is a complete dearth of legislative findings, scientific studies, or other rationale in the record to support the passage of the Act.” (p.12). It seems that Amnon Cohen‘s plan to protect our children while censoring the net is not anchored in any substantial facts.
Fourth: Narrowly Tailored
The use of less restrictive means is the basis of Constitutional Law. The court found that “Even presuming that Defendants could demonstrate a compelling state interest, Defendants fail to make the required showing that the Act is narrowly tailored to materially advance that interest without unnecessarily interfering with First Amendment freedoms.” (p.13). The same goes for the Israeli Act. The Israeli act, as stated here (Hebrew) fails to meet the narrowly tailored standards. There are less restrictive means to protect minors: from putting your computer in your living room to deciding to install a content filtering software on your computer; all are your choices where the government mustn’t interfere with your choices.
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