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The Judiciary (The Best Branch of Government(tm)) ft. Videogames & the 1st Amendment

UbikUbik i am a godin a french-ass restaurantRegistered User regular
edited November 2010 in Singularity Engine++
schwarzenegger.jpg
Arnold Schwarzenegger, Governor of California
v.
[Redacted]
Entertainment Merchants Association (EMA)

So, next month on Tuesday, November 2nd, 2010, the Supreme Court of the United States will be hearing oral arguments in the case Schwarzenegger v. Entertainment Merchants Association, 130 S.Ct. 2398 (2010).

The Court will be reviewing the decision of the United States Court of Appeals for the Ninth Circuit in Video Software Dealers Association v. Schwarzenegger, 556 F.3d 950 (2009).

As you may or may not know, this is the violent video game First Amendment case.

The questions before the Court are:
1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?; and
2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny*, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?
*”Strict Scrutiny” is the name the analysis the Court takes when government action does things like restrict Constitutional freedoms or discriminate on the basis of race. Under this standard, the law is not automatically invalid but the government can prevail if it shows that the law is narrowly tailored to effectuate a compelling state interest. Basically, this standard is very high and the Court will examine the evidence very carefully to determine whether the government has met its burden.

The Ninth Circuit, in Schwarzenegger, reviewed the lower court’s decision that California Civil Code Sections 1746-1746.5 violated the First Amendment. The Ninth Circuit affirmed this decision holding, among other things, that video games are expression protected by the First Amendment and that violence does not fall under the “obscenity”* exception to First Amendment protection.
*The First Amendment has never guaranteed the freedom to say whatever, whenever. Like falsely yelling “fire!” in a crowded theatre, or committing libel, defamation, or slander, obscenity is not protected by the First Amendment so states can do things like ban the sale of nudie magazines to minors. Although obscenity has a common definition of “indecent” or “offensive,” in law, obscenity has a very specific definition in that it only relates to sexual materials.

The Statute in question is as follows [edited for brevity]:
Section 1746:
...
(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.

[The Statute then defined “Cruel, Depraved, Heinous, Serious physical abuse, and Torture.” However, in front of the Ninth Circuit, California conceded that definition (B) above was unconstitutional and only argued that definition (A) was constitutionally permissible]

Section 1746.1:
(a) A person may not sell or rent a video game that has been labeled as a violent video game to a minor.
(b) Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence that a purchaser or renter of a violent video game was not a minor or that the manufacturer failed to label a violent video game as required pursuant to Section 1746.2 shall be an affirmative defense to any action brought pursuant to this title. That evidence may include, but is not limited to, a driver's license or an identification card issued to the purchaser or renter by a state or by the Armed Forces of the United States.
(c) This section shall not apply if the violent video game is sold or rented to a minor by the minor's parent, grandparent, aunt, uncle, or legal guardian.

Section 1746.2:
Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18” outlined in black. The “18” shall have dimensions of no less than 2 inches by 2 inches. The “18” shall be displayed on the front face of the video game package.

Section 1746.3:
[Violation = fines of up to $1,000 but store clerks aren’t personally responsible, the retailer will have to pay]


Section 1746.5
The provisions of this title are severable. If any provision of this title or its application is held to be invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
[Basically, this section meant that when California conceded that 1746(d)(1)(B) was unconstitutional, the whole statute wasn’t automatically invalid]

Statutes like this one have been routinely struck down on First Amendment grounds by applying strict scrutiny to these content-based regulations. In Oklahoma (ESA v. Henry), Illinois (ESA v. Blagojevich), Michigan (ESA v. Granholm), Minnesota (ESA v. Hatch), Washington (Video Software Dealers Association v. Maleng), Missouri (Interactive Digital Software Association v. St. Louis County), Indiana (Kendrick v. American Amusement Machine Association) and Louisiana (ESA v. Foti), statutes restricting minors’ access to “violent video games” have been held unconstitutional. Similarly, statutes restricting access to violent movies have also been held unconstitutional (Video Software Dealers Association v. Webster).

It looks like it is an uphill battle for legislators with the weight of all this precedent against them, but politicians like to pick a “pet issue” and rally against it in order to gain voter support.
See Clay Calvert & Robert D. Richards, PRECEDENT BE DAMNED -- IT'S ALL ABOUT GOOD POLITICS & SENSATIONAL SOUNDBITES: THE VIDEO GAME CENSORSHIP SAGA OF 2005, 6 Texas Review of Entertainment & Sports Law 79 (2005).

All the courts are in agreement when it comes to these laws so it is odd that the Supreme Court would take this case. Usually, the Supreme Court only takes cases where there is disagreement in the lower courts or the case represents pressing issues of public importance. This has led some commentators to believe that the Court will actually rule in favor of California. But maybe the Court will affirm the lower courts in order to get states from continuing to pass these frivolous statutes.

ALRIGHT WHO CARES, WHAT DOES THIS MEAN FOR ME?????!!
--Well, the Court could hold that violence is the same as sex when it comes to the “obscenity” exception to First Amendment protection. This would greatly change the current regime of content-based regulation and would allow governments to place all kinds of restrictions on content that is violent. This however, is probably unlikely.

To paraphrase my Constitutional Law professor, when it comes to the First Amendment, the Court should use a scalpel and not a chainsaw. Even if the Court doesn’t equate violence with obscenity, they may make the narrow holding that banning the sale of violent video games to minors does not violate the First Amendment. Clearly, this is what California will argue for. In Ginsberg v. New York (1968), the Court held that although the State wouldn’t be able to ban the sale of nudie magazines to adults or prohibit their creation, the State was allowed to ban the sale of nudie magazines to minors by employing a variable obscenity definition which considered the material obscene for minors even if it was not obscene for adults. And more recently, with the recent First Amendment in public schools cases, (Hazelwood School District v. Kuhlmeier said it was ok for a school to delete student articles from student newspaper; Morse v. Frederick said a school could punish students for holding “Bong Hits 4 Jesus” sign at school event but off school grounds; Bethel School District v. Fraser said school could punish student for using sexual innuendo during speech at school assembly) the Court has shown that minors’ First Amendment rights are not the same as adults’ rights.

If the Court allows states to ban the sale of violent video games to minors it could have huge impacts on the industry. T-rated games might be considered “too violent” and thus have to be affixed with an “18” sticker. This might cause retailers such as WalMart to not even carry “18” games. The industry might begin to self-censor by erring on the side of caution and taking out more than is needed to comply with the statutes. Finally, if retailers are required to play all these games to determine if they need a label or not, retailers such as GameStop might just refuse to sell the biggest and longest games to minors at all for fear of violating the statutes instead of incurring the expense of reviewing every game individually. This would mean that 15-, 16-, and 17-year-olds (who most parents probably think are mature enough to make their own spending decisions) would have to get their parents to buy most of the video games they want.

So what do you guys think?
How should the Court rule?
How will the Court rule?
Is this all nothing more than old people gettin’ mad at young culture?


I will end the post with an excerpt from Judge Posner’s opinion in Kendrick v. American Amusement Machine Association:
“Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own. Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred. The cult of Sherlock Holmes is well known.”

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Posts

  • NotASenatorNotASenator Registered User regular
    edited October 2010
    I loved reading this post and then reaching your sig at the end.

    NotASenator on
  • Raijin QuickfootRaijin Quickfoot I got the shotgun, you got the briefcase It's all in the game though, right?Registered User, ClubPA regular
    edited October 2010
    Halpin, remember how I said I'd kill you last? I lied.

    Raijin Quickfoot on
  • GyralGyral Registered User regular
    edited October 2010
    Holy crap. A minimum of 2 x 2 inches for the "18". That's pretty damn big for a game case. But I guess it's better than the other alternative I heard about. I read another article on this where it was suggested that the game packaging had to be printed with a thick red border, meaning that most companies would just print the game's packaging the same for all states (most companies won't eat the additional print and packaging costs).

    Gyral on
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  • StaleghotiStaleghoti Registered User
    edited October 2010
    How's the being a law student goin, Ubik?

    Staleghoti on
    tmmysta-sig.png2wT1Q.gifYAH!YAH!STEAMYoutubeMixesPSN: Clintown
    Dear satan I wish for this or maybe some of this....oh and I'm a medium or a large.
  • Centipede DamascusCentipede Damascus GRAND ATTACK!Registered User regular
    edited October 2010
    Mr. Halpin has unfortunate choice in both haircut and facial hair

    Centipede Damascus on
  • NotASenatorNotASenator Registered User regular
    edited October 2010
    Anyone who has ever sold video games knows that most parents don't even look at the rating or anything else on the case, so I'm not sure bigger will really do it. It's like that whole bit about the bigger warnings on cigarette packages because apparently people didn't know they were harmful before.

    NotASenator on
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Staleghoti wrote: »
    How's the being a law student goin, Ubik?

    It's awesome. I love it. My favorite school ever

    But it's a lot of work and very time consuming

    Ubik on
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  • Raijin QuickfootRaijin Quickfoot I got the shotgun, you got the briefcase It's all in the game though, right?Registered User, ClubPA regular
    edited October 2010
    Mr. Halpin has unfortunate choice in both haircut and facial hair

    Wonder if his nickname is The Plague.

    hackerswallpaper08.jpg

    Raijin Quickfoot on
  • Centipede DamascusCentipede Damascus GRAND ATTACK!Registered User regular
    edited October 2010
    so G&T could just rerun this strip basically

    replace the generic politician with Schwarzenegger

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    Centipede Damascus on
  • EdcrabEdcrab Registered User regular
    edited October 2010
    This confused me when it was in D&D and it still confuses me now

    Edcrab on
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  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    The problem isn't really that parents don't know what's up, it's really that States don't like the message associated with the violence

    Like you see outrage against GTA and Postal 2 because they "glorify" violence but no one cares about WW2 games.

    It's not the violence that really matters, it's the message, which is the worst kind of viewpoint discrimination and the government shouldn't be involved in it

    Ubik on
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  • Centipede DamascusCentipede Damascus GRAND ATTACK!Registered User regular
    edited October 2010
    basically some people think that video games are different than films

    either that or the MPAA has a more persuasive lobbyist

    Centipede Damascus on
  • GyralGyral Registered User regular
    edited October 2010
    I got the impression from the article I read that the law (or bill? statute?) was vague enough that there wasn't any definition of what was deemed "too violent for under 18" and that the decision was to be left to the individual developer/publisher. Which, of course, will probably be different than the people enforcing the law.

    Of course this may have changed since the article is a few months old now.

    Gyral on
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  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Gyral wrote: »
    I got the impression from the article I read that the law (or bill? statute?) was vague enough that there wasn't any definition of what was deemed "too violent for under 18" and that the decision was to be left to the individual developer/publisher. Which, of course, will probably be different than the people enforcing the law.

    Of course this may have changed since the article is a few months old now.

    Yeah, a real problem with these is defining violence. Like does human-on-human mean things that look human? What about gods in human form? What about violence that would easily kill a real human but is shrugged off by a character?

    Take Michigan's law which (when all the definitions are inserted) reads like this:

    A person shall not knowingly sell, lend, give, exhibit, show, or allow to examine or to offer or agree to do the same, to a minor a video game that continually and repetitively depicts real or simulated graphic depictions of physical injuries or physical violence against parties who realistically appear to be human beings, including actions causing death, inflicting cruelty, dismemberment, decapitation, maiming, disfigurement, or other mutilation of body parts, murder, criminal sexual conduct, or torture that considered as a whole, appeals to a morbid interest in committing uncontrolled aggression against an individual of minors as determined by contemporary local community standards, is patently offensive to contemporary local community standards of adults as to what is suitable for minors, and, considered as a whole, lacks serious literary, artistic, political, educational, or scientific value for minors

    Ubik on
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  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Also, not all the States are out to get the video game industry

    Nine States Oppose California in Supreme Court Case
    "California's statute legitimizes the off-loading of personal responsibility on to a video game," wrote Patrick Lynch, the attorney general of Rhode Island, in a brief signed by his nine counterparts.

    Also note that Oklahoma and Utah which tried to regulated video games in the past are now on the industry's side (thus is the nature of our democratic process)

    Ubik on
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  • SnowbeatSnowbeat i need something to kick this thing's ass over the lineRegistered User regular
    edited October 2010
    that guy looks exactly like john travolta with a moustache and brendan fraser hair

    Snowbeat on
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  • MrMonroeMrMonroe Registered User regular
    edited October 2010
    d(1)(A)(iii) is a profoundly silly clause to have included in the statute

    but I do not think it is necessarily unconstitutional

    (see what I did there?)

    no but seriously

    It bears noting that this is not an issue of the 1st amendment rights of children, it is about the rights of the publishers; cases legitimizing restrictions on the free speech of minors aren't particularly relevant. I would be unsurprised if they struck (B) and d(1)(A)(iii) from the statute for vagueness and for exceeding the obscenity exception respectively and left the rest as is.

    I'll throw my money on a 5-4 split on creating an exception or a 7-2 split with Scalia writing a totally petulant dissent and Kennedy joining after having fallen asleep during the oral.



    Of course there's nothing government can do that parents cannot do better if they set their minds to it, but everyone's gotta get up in their neighbor's bidness all the damn time.

    MrMonroe on
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    MrMonroe wrote: »
    d(1)(A)(iii) is a profoundly silly clause to have included in the statute

    but I do not think it is necessarily unconstitutional

    (see what I did there?)

    no but seriously

    Haha, I get that

    Ubik on
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  • KarlKarl Registered User regular
    edited October 2010
    Whats the rulings in the UK about this?

    My brother works for GAME. He refuses to sell games to kids if he thinks they're under the age rating on the box and can't prove otherwise. And if the parent is buying it for their kid he's all "you do realize that GTA 4 is really not appropriate for your child who looks no older then 11?"

    Karl on
    YOU'RE ALL BABIES.
    SO MUCH POTENTIAL TO WASTE.
    Koshian wrote: »
    JOKE'S ON YOU
    MY POTENTIAL IS ALREADY WASTED
  • EdcrabEdcrab Registered User regular
    edited October 2010
    To my understanding part of the controversy is that in the States, it's not actually against the law to sell age-restricted content to minors (it just tends to go against store policy)

    In the UK it is illegal to supply both games and films to underage consumers, but in the States it currently isn't, so making such a law apply to games alone is pretty skewed

    Edcrab on
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  • KarlKarl Registered User regular
    edited October 2010
    Edcrab wrote: »
    To my understanding part of the controversy is that in the States, it's not actually against the law to sell age-restricted content to minors (it just tends to go against store policy)

    In the UK it is illegal to supply both games and films to underage consumers, but in the States it currently isn't, so making such a law apply to games alone is pretty skewed

    Shit its actually illegal to do that here? So if a parent buys a game for a child who's underage they're breaking the law?

    Karl on
    YOU'RE ALL BABIES.
    SO MUCH POTENTIAL TO WASTE.
    Koshian wrote: »
    JOKE'S ON YOU
    MY POTENTIAL IS ALREADY WASTED
  • TossrockTossrock too weird to live too rare to dieRegistered User regular
    edited October 2010
    that second guy has an incredibly punchable face

    Tossrock on
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  • SnowbeatSnowbeat i need something to kick this thing's ass over the lineRegistered User regular
    edited October 2010
    Tossrock wrote: »
    that second guy has an incredibly punchable face
    Snowbeat wrote: »
    that guy looks exactly like john travolta with a moustache and brendan fraser hair

    Snowbeat on
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  • UrielUriel Registered User regular
    edited October 2010
    He kinda looks like Dante Hicks.

    Uriel on
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Edcrab wrote: »
    To my understanding part of the controversy is that in the States, it's not actually against the law to sell age-restricted content to minors (it just tends to go against store policy)

    In the UK it is illegal to supply both games and films to underage consumers, but in the States it currently isn't, so making such a law apply to games alone is pretty skewed

    Yea in places like Canada (from what I've read) where the ratings boards are government run, it's ok for the government to restrict access to minors

    Here in the U.S. the ratings people (the MPAA for movies, ESRB for video games, RIAA for music) are industry run and set their own age recommendations

    Stuff like television is regulated by the Federal Communications Commission (FCC) so they have more control over content but they still can't violate the First Amendment (i.e. FCC can't ban cable companies from showing stuff that is "indecent" but not "obscene")

    Ubik on
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  • MrMonroeMrMonroe Registered User regular
    edited October 2010
    also, whomever is hired to decide for the State of California what does and does not have artistic or literary value is undoubtedly going to be the very last person I want deciding the definition of artistic or literary value

    MrMonroe on
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    MrMonroe wrote: »
    also, whomever is hired to decide for the State of California what does and does not have artistic or literary value is undoubtedly going to be the very last person I want deciding the definition of artistic or literary value

    A couple Attorneys General have made the point that this is just going to be an expensive waste of time to enforce, if it's enforced at all.

    I read an article where one police chief was like "unless parents are knocking down our door, I don't see us spending the resources to check if video games are being sold to kids"

    Ubik on
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  • Vargas PrimeVargas Prime King of Nothing Just a ShowRegistered User regular
    edited October 2010
    Y'know... Neil DeGrasse Tyson tweeted the other day "Just Netflixed "2012." Six Billion people dead at film's end. Was prepared because PG-13 rating warned of "Mild Violence"

    That, to me, perfectly encapsulates everything that's wrong with the way people in this country think about/react to media.

    Vargas Prime on
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    One of the cases about violent video games basically said:

    It's crazy how we can't let children see sexual stuff although we hope children grow up to have healthy sex lives and only few sexual things are criminalized but

    Kids can see all the violence they want but we don't want them growing up violent and violence is almost always illegal

    Ubik on
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  • EdcrabEdcrab Registered User regular
    edited October 2010
    In America you love violence but shy away from boobs, in Germany boobs are embraced but violence is shunned

    In the UK and other parts of Europe, boobs and violence go hand in hand in perfect harmony

    Edcrab on
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  • PiptheFairPiptheFair Registered User regular
    edited October 2010
    god I love tyson so much

    PiptheFair on
    STEAM
    Skayel wrote:
    One time, I had a friend over to play a bit of Red Alert on my LAN. During the game he said he needed to go to the bathroom, so we paused it. After about 10 minutes of wondering where the hell he went, I get up and go to check on him.

    Turns out he was trying to screw my dog.
    Once I was taking a poop at a restaurant and a kid crept underneath the door into my stall. I let out a big fart and then he threw up all over the floor in front of me and I just stared at him.
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    Edcrab wrote: »
    In America you love violence but shy away from boobs, in Germany boobs are embraced but violence is shunned

    In the UK and other parts of Europe, boobs and violence go hand in hand in perfect harmony

    This is what I want

    Boobs and violence for some

    Tiny American flags for others
    Boobs and violence for all

    Ubik on
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  • KoshianKoshian __BANNED USERS regular
    edited October 2010
    maybe we shouldn't sell literal children violent video games. just maybe.

    Koshian on
  • AntimatterAntimatter Registered User regular
    edited October 2010
    Koshian wrote: »
    maybe we shouldn't sell literal children violent video games. just maybe.

    some of my brother's friends in first grade were playing resident evil

    christ

    Antimatter on
  • EdcrabEdcrab Registered User regular
    edited October 2010
    The UK system makes perfect sense to me

    Why can't you be more like us America

    Edcrab on
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  • AntimatterAntimatter Registered User regular
    edited October 2010
    Edcrab wrote: »
    The UK system makes perfect sense to me

    Why can't you be more like us America

    we're utterly contrarian and it's not fair

    put us out of our misery, kthx

    Antimatter on
  • UbikUbik i am a god in a french-ass restaurantRegistered User regular
    edited October 2010
    I think it's up to the parents

    And the market

    And industry self-regulation

    Government shouldn't be involved

    (except in limited cases like broadcasts where you can't stop invisible waves from getting into your house; or the government can require parental controls on things but shouldn't be making content decisions)

    Ubik on
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  • KoshianKoshian __BANNED USERS regular
    edited October 2010
    ahahahhaha, because over the last 10 years, we have certainly learned that businesses can certainly regulate themselves!!

    Koshian on
  • DichotomyDichotomy Registered User regular
    edited October 2010
    and parents, the market and industry self-regulation are entirely trustworthy

    Dichotomy on
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  • JoeUserJoeUser Registered User regular
    edited October 2010
    Edcrab wrote: »
    The UK system makes perfect sense to me

    Why can't you be more like us America

    harrypottervideogame006.jpg

    JoeUser on
    PSN: JoeUser80 Steam
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