October 12, 2006 8:41 PM PDT

Florida judge gets tough on 'Bully'

A Florida judge has ordered the maker of "Grand Theft Auto" to hand over an unreleased video game set in a high school, a move that raises questions about the legal protections that games enjoy.

The judge is being asked to grant a partial injunction against sales of the forthcoming Take-Two Interactive Software game, called "Bully" and set at a fictional private school named Bullworth Academy. "Bully" is scheduled for release on Tuesday.

Ever since a landmark U.S. Supreme Court decision in 1931, the law has said that injunctions placed on material before publication run afoul of constitutional protections of freedom of speech. In a subsequent 1971 ruling, for instance, the justices warned that such an injunction "constitutes an impermissible restraint on First Amendment rights."

But in the Florida lawsuit, an anti-video game attorney named Jack Thompson is asking for precisely that. He filed a motion on Wednesday asking the court "to grant some relief to stop the witless, crass release of this game in five days."

First Amendment scholars are alarmed at Thompson's request, especially since Miami-Dade County Circuit Court Judge Ronald Friedman has decided to review the game to see how violent it is instead of dismissing the request out of hand.

"If it's not on the market yet, I find it hard to imagine a basis for the prepublication review of the game," said Robert Corn-Revere, a partner at law firm Davis Wright Tremaine in Washington, D.C. who has argued before the U.S. Supreme Court.

Thompson's lawsuit likens "Bully" to a "murder simulator," alleging it will teach minors about methods of bullying and school violence. He asks the court to declare the game a "public nuisance."

That echoes the arguments the Supreme Court heard in the 1931 Near v. Minnesota case, in which the justices invalidated a state law (and injunction) regulating "scandalous" news articles as a public nuisance, Corn-Revere said.

"To extend that (argument) to speech is saying that the speech offends you," he said. "That's not a valid regulation under the First Amendment."

Is "Bully" even violent?
Take-Two declined to comment. But its Web page for "Bully" says that players will be able to "stand up to bullies, get picked on by teachers, play pranks, win or lose the girl, and ultimately learn to navigate the obstacles of the worst school around, Bullworth Academy--a corrupt and crumbling prep school with an uptight facade." (The game will be available for the Sony?s PlayStation 2 console; the Microsoft Xbox version was canceled.)

Bully

Thompson could not be reached for comment on Thursday. But his legal filings argue that courts should assume the worst of "Bully"--which is being published by Take-Two's Rockstar Games subsidiary--because of the flap over Rockstar's "Grand Theft Auto" games. In July, the Federal Trade Commission and Take-Two came to a settlement over an investigation of inappropriate sexual content in "Grand Theft Auto: San Andreas."

That history, coupled with Take-Two's description of its game, already caused the Miami-Dade School District to pass a resolution condemning "Bully," and led politicians in the United Kingdom to suggest that it be banned.

Some reviewers who were given early copies of "Bully," however, have concluded it does the opposite of glorify violence. A review on Wired News says, "It turns out the game doesn't glorify bullying at all." Instead, the review says, the player's missions involve defending the helpless.

David Greene, director of the First Amendment Project, likened the current flap--over an unreleased video game that critics have not even seen--to film review boards. Decades ago, many state laws made it a criminal offense to show a motion picture that had not been submitted to a board for its review.

The Supreme Court struck down those requirements in a 1965 case called Freedman v. Maryland. Maryland's film board "fails to provide adequate safeguards against undue inhibition of protected expression, and this renders the requirement of prior submission of films to the board an invalid previous restraint," the justices concluded.

"It does really harken back to that," Greene said.

In the current view of the First Amendment's protections, Greene said, "you let the speech out there, and if it causes harm, you then decide whether you can restrict the speech or someone can be compensated for injury. What the First Amendment urges us to avoid is this idea of...saying that something can only be distributed with approval."

Struck down
Other courts that have recently considered state and municipal restrictions on video games have taken a dim view of those restrictive laws.

Probably the most influential opinion was written by libertarian-leaning judge Richard Posner of the 7th Circuit Court of Appeals, which struck down an Indianapolis law restricting minors' access to arcade games that might appeal to a "morbid" interest in violence.

"The common sense reaction to the Indianapolis ordinance could be overcome by social scientific evidence, but has not been," Posner wrote in 2001. "The ordinance curtails freedom of expression significantly and, on this record, without any offsetting justification."

Since then, other courts have struck down antigaming laws by adopting similar logic: Unless social science research can prove the games are actually harmful, the First Amendment's freedom of expression wins.

Missouri's St. Louis County enacted a law prohibiting anyone from selling, renting or making available "graphically violent" video games to minors without a parent's or guardian's consent. But the 8th Circuit Court of Appeals ruled (PDF here) that "before the county may constitutionally restrict the speech at issue here, the county must come forward with empirical support for its belief that 'violent' video games cause psychological harm to minors."

And in 2004, federal district judge in Washington state tossed out a law penalizing the distribution of games to minors in which harm may come to a "public law enforcement officer." The state of the research did not justify the ban, U.S. District Judge Robert Lasnik ruled (PDF here).

As for "Bully,? retailers Wal-Mart Stores and GameStop have also been named as defendants in the Florida lawsuit, filed in the 11th judicial circuit. A ruling regarding an injunction to halt sales of "Bully" is expected at any time.

See more CNET content tagged:
Take-Two Interactive Software Inc., injunction, First Amendment, Grand Theft Auto, Florida

46 comments

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There is a chance...
If the game is really not violent or not violent in the way Jack Thompson says it, this could possibley, HOPEFULLY, discredit Jack Thompson in the area of games and the news media can ignore him as they should.
Posted by tijir (6 comments )
Reply Link Flag
Based on Wired's review
I can't wait to see the ruling on this game. I think this is going to totally be egg on Jack Thompson's face. Hopefully, this will shut that jackass the f@&% up for good. Or at least, maybe make the media quit printing everything he says. That would have the same effect.
Posted by bemenaker (438 comments )
Link Flag
Commercial speech gets less protection
It is obvious that Declan McCullagh never spent a day in law
school. He is using concepts he clearly doesn't grasp.

The judge is not beyond the bounds here. Since the game is a
form of commercial speech, it does not have the full protection
of the First Amendment. Though I don't expect to the courts to
reach new ground regarding content of this sort, having a judge
at least consider just how much violence is acceptable in
material targeted at minors is evidence of thoughtfulness.

Can CNET find someone with actual knowledge of legal issues to
write about topics of this type? McCullagh is an embarrassment.
Posted by J.G. (837 comments )
Reply Link Flag
RE
The content of the game is fully protected by the First Amendment. Commercial speech is "an expression related solely to the economic interest of the speaker and the speaker's audience. It comes from Supreme Court rulings in the United States. In more plain english, "Commercial Speech" is speech done on behalf of a company or individual for the intent of making a profit. It is economic in nature and usually has the intent of convincing the audience to partake in a particular action, often purchasing a specific product."


If you logic was follow the content of books would be consider commerical speech, which they clearly are not. The fact that something is for sale does not make it commerical speech.


"McCullagh is an embarrassment."

No you're interpretations and subsequent criticism of Mr. McCullagh are the embarrassment. Do yourself a favor and do some research before you post, you can start by reading Valentine v. Chrestensen (1942) and Ohralik v. Ohio State Bar Ass'n (1978)

This game is not targeted at minors it carries a Mature rating. The mean age for video game players is 28.
Posted by unknown unknown (1951 comments )
Link Flag
RE:
"having a judge at least consider just how much violence is acceptable in material targeted at minors is evidence of thoughtfulness."

its not up to the judge to be thoughtful but to follow the law. there is already a rating board for games. the law has no place invading the rights of consumers or businesses.

dont want it dont buy it.
make it so u must show id, at a minimum every school has a school id. parents need to get off their own couch and go check up on their kids if they cared.

i personally will not buy this game but they have every right to make it, market it and sell it. just as we have the right not to buy it.

get educated
get a clue
get the government out of my personal life.
Posted by itsallj (19 comments )
Link Flag
Are you serious?
"commercial speak".

Wow. So, books and films can be regulated at the whim of lawmakers, in blatant disregard of the constitution?

Land of the Free, indeed.

(if it wasn't obvious enough, IANAL)
Posted by jpsalvesen (31 comments )
Link Flag
Other comments speak for themselves...
You are the one that knows little of what you speak. The game was created by writers, artists and other creative people. It has the same protections as a painting or book.

Games are not just products; they are art. As such, protected...
Posted by umbrae (1073 comments )
Link Flag
You don't understand commercial speech.
I did spend time in law school. Enough to get a J.D. in fact.

Commercial speech is speech that advertises a product or service. It is speech that proposes a commercial transaction. And yes, it gets a lesser level of protection under the 1st amendment.

The game itself is not commercial speech, however. It is no more commercial speech than is a book or a movie or any other form of speech wherein the speech is sold for commercial gain.

And advertisement for the game is commercial speech. The game itself, no.
Posted by Musmanno (101 comments )
Link Flag
"Commercial speech" == "less protection?'
Dear "J.G.":

Other posters have said it well.

Contrary to your beliefs and representations, commercial speech involves proposing a commercial transactions (think advertising). That doesn't cover video games.

Otherwise New York Times, Time magazine, books, and even CNET News.com would be all closely regulated as commercial speakers (we're doing it to make money, right?).

Next time think before you flame.
Posted by declan00 (848 comments )
Link Flag
Wrong...
Commercial Speech is where you are advertising a product. You can not make a false statement in your advertising for a product you sell and be protected by the first amendment. To make such false statements would be fraud.

Let's say for example you advertised that you were a legal expert for hire knowing everything about free speech. That would be a false statement, and your advertisement would not be protected by the first amendment. However if you simply make a statement here that you know more about another person on this subject; that is simply your opinion and is protected even if you are proven ignorant on the topic.
Posted by zaznet (1138 comments )
Link Flag
"T" for Teen
CNET does not seem to mention that this game has already been rated a "T" for Teen. Therefore it is very unlikely this will be a "murder simulator".

It has been obviously from the start that this game would be more about someone trying to overcome "being" bullied; rather than being the bully. Tommy-Boy just cued onto the "Bully" name and started running around with his head cut off.
Posted by umbrae (1073 comments )
Reply Link Flag
And the publisher
He didn't just pick on the name, he is after the publisher who is known for violent video games.

The problem is that he could get an injunction and financially harm Take Two in the process. This is using the legal system to cause harm to a company that has broken no laws. That is illegal and Tom needs to spend some time behind bars for doing it.
Posted by zaznet (1138 comments )
Link Flag
Just another example of abuse of the legal system
Amazing how some jerk can manipulate the legal system for his own publicity. The real core of the issue has nothing to do with protection of anything. Only abuse to generate spot lighting for some other reason all together. Too bad it ends up being reported or all this BS would never even happen. Too bad this guy doesn't have to pay the winners legal fees. More abuses like this will eventually have to lead to that end result and the undermining of those blood sucking lawyers in the legal and political system. Hopefully same day the american public will support sweeping fundamental changes to this corrupt legal system in this country.
Posted by mssoot (169 comments )
Reply Link Flag
One step further..
Amazing how "THIS" jerk can manipulate the system. Tommy-Boy is bascially a crazy loon. He has been thrown off cases and out of court rooms. Several requests have been made to the Florida Bar to remove him. He insults anyone and everyone that plays games as been murdering idiots, or "pixelantes" as the term he has copyrighted.

Amazing that this guy gets ANY air time at all. His stuff belongs in the tabloids not in court rooms.
Posted by umbrae (1073 comments )
Link Flag
Throw the case out
Judges need to be more willing to dismiss lawsuits that clearly don't have a legal leg to stand on. And they should also have the authority to order the accuser to pay the defendant's legal fees, if they feel the suit is blatantly a "nuisance suit."

As things stand, a rich guy or an attorney can keep suing his enemy over petty stuff until his enemy is bankrupted by legal fees and lost wages. Thankfully, this doesn't happen often at a personal level, but companies experience it all the time. They often settle cases out of court that have no merit whatsoever, just to save money. Guess who eventually pays for these nuisance suits?
Posted by dmm (336 comments )
Link Flag
well f-king said!
whats the point... the company could locate in some capitalistic democracy...

this will be the new civil war.. for the moral decay of lawyers... currupt police and judges... brainwashed people.. triple agent intellegence... the last bastions of a bygone religion... let them rot in their own hell
Posted by freq (121 comments )
Link Flag
it'd be interesting to apply Bushido to lawers
You can take any case you like but if you loose, it's your honor (reputation) on the line and you give up the right to be paid if you loose.

If you win, you retain responsability for the person whom you won for. If he's a good guy, yeah, more honor for you. If you've just got Jimmy Two Fingers a get out of jail free card, you'll be sitting beside him when he's back for the next set of charges or you are responsible for delivering justice to him.

Bahahhaah.. it'd never happen while Laywers make the laws. (be they public servants creativeling using law in cases or governmetn laywers and lobbies)
Posted by jabbotts (492 comments )
Link Flag
More than publicity...
It is for more than publicity's sake alone that he makes this case against Take Two. If he got his injunction it would be a legal, political and financial blow against a content publisher. A victory at just an injunction would be a legal stepping block for more legal actions against publishers of all sorts of content.

The problem is that free speech is not applied to speech that does not exist. The same thing could be used against a book or movie to stop publication as the content is reviewed. This is a very dangerous precident to set.
Posted by zaznet (1138 comments )
Link Flag
Prosecute the suing party for supplying adult video games to children
First of all there's the simple stupidity that the critics and sueing party have perpetrated, in that they've assumed the game to be the exact opposite of that produced by the developers.

Then we have the irrational fear of video games in general, with the assumption that cartoon sex or cartoon violence will be harmful to minors despite generations of game users having no more tendency to be violent than any other group in society.

Finally we have the stupidity that allows criminals to blame video games for their crimes.

Buying a game rated mature for a teenager is a crime, blaming that a store for selling you inappropriate games for your children is like giving your children permission to shoplift, then blaming the store for allowing them to do it.

The only people that deserve prosecution are those who buy their children video games that are clearly marked as being inappropriate for a particular age group. Teen or Mature are self explanatory labels, only an incompetent parent could claim otherwise. If you are willing to buy these games for your kids, no doubt you also have no problem buying them cigarettes and alcohol, or perhaps some firearms.

Blaming video games when deranged children take guns to schools is just another symptom of the 'no responsibility for my actions' attitude that permeates society today. Apparently everyone from your mother to your video game store is at fault for all that's wrong with your life, not the fact you refused to do your homework as a kid, you don't pull your weight at work and your refusal to clear warnings on the front and back of video game boxes. I suppose you also blame the porn industry for corrupting your children with the pornographic movies you probably buy them.

The only law that needs to be enforced is one that prosecutes idiot parents for their stupidity. Stores are very unlikely to sell inappropriate material to under age customers, which puts the responsibility squarely at the feet of those that buy the material for their kids.

Like the grandparent that was fine with GTA Andreas allowing her below age grandchild play with a game that was rated for teenagers only, despite the violence, car jacking, pimping and drug dealing - but got all upset and sued when the game was modified by an addon to show cartoon sex.

Instead of reading the box and the description of the game, she simply gave her spoilt brat the game he demanded, then sued everyone in sight when the game turned out to be everything it advised her it was on the box.

Stupid people with an inexcusable lack of responsibility should be properly dealt with by the courts.
Posted by ajbright (447 comments )
Reply Link Flag
You realize...
"...no doubt you also have no problem buying them cigarettes and alcohol, or perhaps some firearms"

Buying your child a firearm (legally) decreases their chances of using alcohol or commiting crime.
Posted by hahne59 (33 comments )
Link Flag
First of all ...
Every single high school jock/thug/whatever caught in the act of bullying should be removed with extreme predjudice.

But if this game helps one kid defend himself against a bully, I think it is a good thing.
Posted by Too Old For IT (351 comments )
Reply Link Flag
Re: First of all...
OK, but what if it shows a kid how to BE a bully? I've got no
problem seeing kids stand up to the dirtbag juvenille
delinquents who harrass them, but what about actually helping
to churn out those bad apples?

Charles R. Whealton
Charles Whealton @ pleasedontspam.com
Posted by chuck_whealton (521 comments )
Link Flag
lET'S BE ABLE TO PREEMPT OTHER'S STHOUGHTS
"I don't like anything that may enter your brain, therefore your mouth is completely off limits to everyone, regardless of what you might have to say."

Screw you and everyone who tries to silence those who have an idea contrary to what you think!

Let kids be kids and let them form their own opinion of the world.
Posted by cadaver.vitae (3 comments )
Reply Link Flag
Ironic, isn't it?
That a game about defending people from being pushed around has been forced out of the market by a judge using police powers...

<a href="http://www.bakedpenguin.com/JudgeStopsRockstar.html">my comments</a>
Posted by BakedPenguin (1 comment )
Reply Link Flag
The judge declined Thompson's request
to issue an injuction on the sale of Bully.
<a class="jive-link-external" href="http://arstechnica.com/news.ars/post/20061013-7985.html" target="_newWindow">http://arstechnica.com/news.ars/post/20061013-7985.html</a>
Posted by unknown unknown (1951 comments )
Reply Link Flag
Good News!
Well that is good news because this guy only needed that injunction to gain his victory over the game. Lucky for us the Judge in this case had some sense. It is just too bad that Take Two has to put up with garbage litigation just prior to the release date of a new game.
Posted by zaznet (1138 comments )
Link Flag
I woundJack Thompson
I wonder why Jack Thompson would not like a game where bullies are the bad guys? Does the idea of a bully getting served back what he has been dishing out bother him?

I Think that the bully Jack Thompson would appose any game that Rock Star released (Chess club advanced strategy simulator), but this one had to have a special place in his hart.
Posted by ralfthedog (1589 comments )
Reply Link Flag
Bad subject Clicked submit by mistake
When will cnet let you edit your posts?
Posted by ralfthedog (1589 comments )
Link Flag
What is Jack doing?
He is seeking a way to hurt the comapnies that make games he does not like. It is not so much his dislike for this title but for the company that released it. If he were to get the injunction that is all he needs to gain a victory against Take Two. Everything else beyond that is just gravy.
Posted by zaznet (1138 comments )
Link Flag
Whatever Happened?
Whatever happened to lettting parents decide what their children will play or watch? I am a mother of three and it sickens me that the government tells me what my kids watch and can play. They (the government) aren't the ones putting food on the table and a roof over our heads how can they get off telling me how to raise my kids?
Posted by nene1977 (2 comments )
Reply Link Flag
They think parents are stupid
They think parents are stupid and won't talk with their children about the things they see in the games.That is the basis of their arguements against these things being shown in games, movies or books.

I should also note that in some cases they ARE telling you how to raise your children. They are telling you that you can't allow your children to be sexual with other children and adults and will imprison you and your children if they are, they are telling you where your children go to school (in the case of special education students and minorities), and many other things that I don't have time to go into here.

Society is being trumpted over individualism, and I don't understand why that is. Maybe people are stupid enough to actually BELIEVE some of the things that psychologists and 'specialists' are saying today.

We need to realize that children do NOT do things like bullying because they see it in a movie or video game. They do it because they see their PARENTS doing it or see other children doing it, and want to 'fit in' with children.
Posted by Leria (585 comments )
Link Flag
Just Stupid
Come on people of the law, wake up. Video games are not just for young kids and children, games such as "Bully" are aimed at adults! Humour for young adults. Why else would it be released marked as an 18(Uk)??? It is down to the parents to ensure children do not play these titles!!! Might be a clue in the rating dont you think? As for adults going loopy over games such like this I think you will find that the game is not the only influencing factor in their life!!! If people dont like the game just ignore it, make sure you dont buy it for your kid simple! At the end of the day children under the given age playing the game have only their parents to blame.
Posted by stut85 (1 comment )
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