캘리포니아 폭력게임법 위헌 논란

해묵은 논쟁이기도 하고 영화 산업에서 오래 전에 겪었던 일을 게임업계가 요즘들어 겪고 있다. 캘리포니아주에서 작년 말에 통과시켜서 2006년 1월 1일에 시행되기로 했던 폭력게임법이 위헌논쟁으로 효력정지가 되어 있다. (preliminary injunction) BBC 기사.

GTA.jpg

<섹스 장면이 숨겨져 있다고 알려진 GTA>

헌법 소송에서 First Amendment 이슈이기 때문에 낯익기도 하면서 새로운 이슈가 있으므로 법원이 어떻게 판결을 내리는지 보는 것도 재미있다.

일단 캘리포니아 폭력게임법(Californina Violent Games Law, California Civil Code §§ 1746-1746.5)에서 문제가 된 조항을 인용하면:

(d)(1) “Violent video game” means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.

(2) For purposes of this subdivision, the following definitions apply:

(A) “Cruel” means that the player intends to virtually inflict a high degree of pain by torture or serious physical abuse of the victim in addition to killing the victim.

(B) “Depraved” means that the player relishes the virtual killing or shows indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim.

(C) “Heinous” means shockingly atrocious. For the killing depicted in a video game to be heinous, it must involve additional acts of torture or serious physical abuse of the victim as set apart from other killings.

(D) “Serious physical abuse” means a significant or considerable amount of injury or damage to the victim’s body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse, unlike torture, does not require that the victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing.

(E) “Torture” includes mental as well as physical abuse of the victim. In either case, the virtual victim must be conscious of the abuse at the time it is inflicted; and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.

(3) Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim.

소스: 법원 판결문.

1. 이 판결은 Preliminary Injunction에 대한 판단이다.

Preliminary injunction은 재판의 절차가 진행되기 전에 원고의 요청으로 분쟁이 되는 행위가 일시 중지될 수 있도록 하는 것이다. 그러니까 이 판결로 인해 캘리포니아의 폭력게임법이 폐지되었다고 생각해서는 안 된다.

Preliminary Injunction의 판단 기준을 내 기억을 리프레시하기 위해 판결문을 인용해 보면:

Under the traditional test for granting preliminary injunctive relief, the applicant must demonstrate: “(1) a likelihood of success on the merits, (2) the possibility of irreparable injury to plaintiff if the preliminary relief is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest (in certain cases).” Dollar Rent A Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d 1371, 1374 (9th Cir. 1985). Alternatively, the moving party must show “that serious questions are raised and the balance of hardships tips sharply in favor of the moving party.” Stuhlbarg Intern. Sales Co., Inc. v. John D. Brush and Co., 15 Inc., 240 F.3d 832, 839-40 (9th Cir. 2001).

이에 대한 분석은 판결문에 조리있게 나와있다. Preliminary injunction 재판이 중요한 이유는 거기에서 liklihood of success on the merits를 판단하면서 재판의 핵심이슈를 분석해야 하기 때문이다. 그러니까 Preliminary Injunction 재판에서 이기면 본심에서 이기게 될 가능성도 높아진다고 말할 수 있다.

2. Merits of the Case Is First Amendment Content Regulation

이 케이스는 전형적인 First Amendment content regulation 이슈를 다루고 있으며, 따라서 standard of review는:

“Content-based regulations are presumptively invalid.” R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). A state may limit expression based on content only if the state (1) has a compelling interest and (2) “chooses the least restrictive means to further the articulated interest.” Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989). “[T]here is a compelling interest in protecting the physical and psychological well-being of minors.” Id.

캘리포니아 폭력게임법이 이런 strict scrutiny standard of review를 통과하기는 불가능하다고 보면 된다. Standard of review가 strict scrutiny로 정해진 것부터가 90% 패배를 보장한다. 따라서 preliminary injunction이 나온 것도 크게 놀라운 일이 아니다.

3. Labeling Requirement

부수적인 이슈로 캘리포니아 폭력게임법이 게임에 나이 레이블을 붙여서 부모들이 게임을 아이들에게 사줄 때 참고가 되도록 하는 것은 위헌이 아니라고 판단하고 있다.

본심 날짜는 알려지지 않았다.

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