"if i put a bumper sticker on my car, should that save it from being junked?"
Great example. [translation: nasty dissection ahead]
I can't pass up a juicy metaphor (as if my arguments weren't tenuous enough already...)
Now, the US government and state governments aren't in the business of ordering private citizens to junk their cars. But, in some cases, they may refuse to let them be driven on public roads. Suppose that Joe owns a big 'ol heap of rust, has had one too many close calls in it, and is so ordered. One day, Joe gets an idea; he goes out to the front yard, affixes his shiny new "Control your destiny, or someone else will" bumper sticker to the back of his car, and takes his it down off the blocks for a victory lap around Bigsville.
Now, after the friendly neighborhood sherrif finishes telling the story of how they tracked Joe down by following the trail of broken bailing wire ties to his house, Joe explains to the judge that he was simply exercising his right to free expression by publicly displaying his new bumper sticker, and that he didn't know the car would stall out in middle of the railroad tracks, honest!
The railroad company lawyer, being a kindly type and not wanting Joe to be at a loss for an opportunity to display his bumper sticker, points out that the Bigsville community could draw every bit as much wholesome enjoyment from Joe's new bumper sticker if it was hanging on the front door of Joe's home. But, the judge dismisses this reasoning. Although the railroad is quite right to complain about Joe's rust bucket being out and about, he says, the state only refused to license joe's car because they have a compelling interest in ensuring public safety. They don't have anything against his bumper sticker. Whether or not Joe has an alternate location to display his bumper sticker really isn't important to the case. Even if Joe had decided that, after his car's newest bailing wire part reattachments, it was so solid that it merited a public demonstration at high speed down main street (one that couldn't be replicated properly on the front lawn of his house), the state's interest in public safety would still be enough to outweigh his right to such a perform demonstration.
Well, the judge has poor Joe's driver's licence taken away, and forces him to pay the legal costs; now he couldn't afford to buy another car even if he was allowed to drive one. But at least his bumper sticker is embedded firmly in the level crossing, for future generations to marvel at.
Ok, well, that was fun. So, what am I getting at here?
It sounds, in part, like you're saying that prohibition of violent games doesn't violate the First Amendment because various pieces of the content involved can be expressed in other ways.
But the case history doesn't give this argument much weight. Either their reasons for making an exception to constitutional guarantees are compelling or they aren't; but they don't need to be any less compelling just because the game developers could express their ideas some other way.
Of course, it could be that you're not trying to say that; maybe you're just saying that certain "parts" of the game aren't part of the game at all, in the same way we wouldn't assume that an entire car is part of the expression intended by a bumper sticker (except, perhaps, if it says "My other car is a Porsche".) =)
"As such, the game (of shooting zombies) is not speech;"
Even if it was likely constitutional to prohibit only "parts" of the game, when you get right down to it, there would have to be some non-speech "core" of the game to ban. But what part of the game is it that isn't speech? Virtually everything to do with the shooting of zombies is speech: zombie visuals, 3d models, synchronization of sound effects with triggered events, even zombie movement patterns and AI behaviour. To the extent that the player shoots zombies because it is suggested in the game, the zombie shooting is part of the storyline, and thus appears to be expression on the part of the game designers. And, to the extent that the player shoots zombies because they decide to do so on their own, their choices can't be part of the non-speech "core" we're looking for, because they're supplied by the player, and aren't part of the game at all.
What does that leave?
It sounds to me like the lawmakers _really_ _want_ to say that they have a compelling interest in the distribution of video games to minors, or at least they think that many people believe there is such a compelling interest and will go along with the legislation because of that. But they can't actually _say_ that, because they only really have a suspicion that there is such an interest, and they don't have an evidenciary leg to stand on when it comes right down to it. So, they're fiddling around, trying to find new angles to use to get their legislation through constitutionality tests.
Of course, that's just my $0.02, and I could be wrong.
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