Lawmakers often wait until the closing weeks of session to drop their most controversial bills. This year was no exception, with H.5218 and H.5219 aiming to censor gun violence in digital entertainment. The former would make it illegal to sell video games depicting gun violence, and the latter would prohibit theaters or other streaming services (such as Netflix and Hulu) from showing movies that depict gun violence. Violation of these proposed laws would carry a fine of up to $10,000.
The legislature knows – or certainly should know – that the high courts have ruled consistently to protect varying forms of free speech. In Brown v EMA (2011), the U.S. Supreme Court struck down a California state law that prohibited the sale of violent video games to children – a more narrow scope than H.5218, which would prohibit the sale of such games even to adults. The court stated that “video games qualify for first amendment protection … and ‘the basic principles of freedom of speech do not vary’ with a new and different communication medium.” The courts have used this same principle to protect speech in movies.
South Carolina legislators have a history of proposing bills that would erode the First Amendment. For several years in a row lawmakers have introduced legislation that would regulate political speech, including communications critical of public officials during a broad window before an election. Last year, another bill would have created an official registry for journalists that included fines and jail time for non-compliance. Similar to H.5218 and H.5119, these bill would have clashed with numerous court rulings had they passed. But this has not stopped lawmakers from trying.
Another important misconception is that violent video games and movies aren’t regulated. They are. A key distinction, however, is that the rating systems that oversee both industries are voluntary. Both the Motion Picture Association of America (MPAA) and the Entertainment Software Ratings Board (ESRB) – the bodies that assign ratings to movies and video games – are private organizations. And they are quite effective. Almost anyone who has seen a movie knows what to expect from a movie that is rated “R” versus one that is rated “PG”.
Ultimately, these bills are about more than just entertainment and consumer choice. They are serious threats to First Amendment protections. History tells us that what begins as government’s attempt to “protect” vulnerable groups from harmful ideas inevitably expands to include ideas it simply doesn’t like. If passed, H.5218 and 5219 would further the notion that government censorship is acceptable, opening the door to other forms of expression being attacked.
These bills are currently sitting in Judiciary Committee. With only one week remaining in the legislative session, it’s unlikely they will become law unless lawmakers suspend the rules. As always, we will provide updates on their status if they occur.