Update: Thompson’s Latest Attempt

Posted by Liz Surette on February 8, 2009

As I reported earlier, Jack Thompson’s latest attempt at game industry regulation focuses not on content-based sales restrictions, but on creating a new category of false advertising. After some speculation, the language of the new bill (sponsored by Utah Representative Mike Morley) has been released.

Courtesy of GamePolitics, you can find the full bill here.

You can find the full citation for the current version of Utah’s Truth in Advertising Act in my previous article linked above. The only amendment that the bill proposes is to add to the enumerated list of deceptive advertising practices “advertis[ing] that a good or service will not be sold to a certain age group when it is”.  However, even the sponsor himself concedes that its effect would be minimal, impliedly admitting that retailers who do not actually advertise that they don’t sell violent video games to minors will not be affected. That same article says he has been working with interested parties “retailer and consumer protection groups” to draft the bill in such a way as to pass muster under judicial scrutiny.

If the bill were passed, violations could be revealed by sting operations or by the simple discovery by a parent that the retailer has sold GTA to their child. In order for someone to have standing to sue, they must give the retailer notice of possible litigation and ten days to correct the advertising(1). This means that civilly there would not be much that an outraged parent could do, considering that ten days is plenty of time to rescind the advertising and possibly visit some swift discipline on the offending sales associate. Interestingly, the portion of Utah’s criminal code in which “deceptive business practices” are misdemeanors does not specifically mention fraudelent advertising of business practices(2).

1. U.C.A. 1953 section 13-11a-4(5)
2. U.C.A. 1953 section 76-6-507

UPDATE: On February 11th, 2009 the above-mentioned bill was officially filed by Morley. The final draft of the bill has language that differs slightly from above, but the effect is the same. To reiterate a possible First Amendment theory, allow me to quote myself:

“…the issues will involve false advertising and whether the proposed regulation of commercial speech is permissible. Misleading commercial speech (which would admittedly include advertising a store policy not to sell to minors when the store does not have or enforce such) may be easily regulated, as the government must only show that the regulation is rationally related to a legitimate government purpose.”

Overbreadth and vagueness challenges will probably not be attempted due to the theory courts have that commercial speech won’t be “chilled” as a result of regulations that sweep in protected speech or that are not clearly defined. The profit motive will drive merchants to continue to speak–or that’s the theory anyway.

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