The Town that Sent Pac-Man Packing

Since the town of Marshfield, MA recently overturned its famous ban on video games

http://mashable.com/2014/05/02/coin-op-ban-repealled/

I thought I’d do a quick post on the original ban.

This may be a bit dry for some of you, with its emphasis on the legal issues, but if there is interest, I could also do a post on Mesquite.

 

            Any gamer who grew up in the “golden age” of the 1980s likely remembers the furor over video games, and especially video game arcades that flared up mid-decade. The “controversy” (which turned out to be something of a tempest-in-a-teapot) spilled over into the national media with stories appearing on the evening news, the Phil Donahue show and others. A number of localities placed restrictions of the games or (rarely) banned them outright. Of these, the two most infamous were Marshfield, Massachusetts and Mesquite, Texas. The cases were tracked avidly by the video game industry and both were appealed all the way to the Supreme Court.

 

Marshfield, MA

 

 

            In 1981, Marshfield, Massachusetts was a sleepy seaside resort town of about 11,000 people on the state's South Shore southeast of Boston. During the summer, people would flock to the town to lounge on the beach, fish, or grab a meal at the Green Harbor Lobster Pound. Like almost every other town in the 1980s, Marshfield also had video games – about 60 to 70 of them[1]. Construction workers would stop by Sea Side Grocery in the mornings for coffee and a game. Out of town businessmen would spend their lunch hour zapping aliens at the Marshfield Sports Center. Kids would play a round of Pac-Man after an evening of skating or roller hockey at the Marshfield Family Skateland, which had started back in 1952 as the Marshfield Roll-a-Rink. Not everyone in Marshfield found the games so amusing, however. As the permanent population swelled, concern about video games mounted. The city's rise to infamy began in November of 1981 when the town's counsel informed the Board of Selectmen that the commercial use of coin-op amusement devices was a violation of an existing town zoning bylaw that had been enacted in 1972. In response, the city stopped issuing new licenses for the devices until a new ordinance could be written. At a town meeting on June 15, 1982, the Board of Selectmen proposed a new law that would allow the "accessory use" of up to 4 coin-op machines in eating and drinking establishments and established an annual licensing fee of $100 per machine. The law, however, did not sit well with some – including Thomas R. Jackson, a former narcotics officer and head of the town's vandalism committee. Jackson believed that "the proliferation of these games in town has created a honky-tonk atmosphere" and that for some the games were the first step on the road to compulsive gambling[2]. If that weren't enough, Jackson also claimed that people in the video game business "are all hoods", that the leading proponent of easing the restrictions had been arrested in a recent drug raid, that 89% of games were violent and "designed to be addictive", and that there had been 9 documented deaths due to violence in arcades in 1982[3]. Rather than easing restrictions on games, Jackson proposed banning them outright, including pinball and other coin-op games. Jackson's proposal passed 191-19 and became "General Bylaw 48", which banned all "automatic amusement device(s) whether coin-op or not, except for private in-home use, coin-operated jukeboxes, pool, billiards, bowling, and athletic training devices." Violators would be fined $200 per offense. Some were quite happy with the new law. Resident Jim Judge later opined that "…the fewer distractions of that type, the easier it is to transfer my ideas and values to my youngster", while his wife Betsy noted that ''If we have these things in the town, it draws the wrong type of people and we want to protect our town'[4].

 

            After the meeting, the new Bylaw was submitted to the state Attorney General for approval. Before the AG could rule on the issue, the town Building Inspector sent violation notices to all business owner who had a coin-op game ordering them to stop using them. Nine merchants[5] refused and in August, the Building Inspector initiated court proceedings against them. On September 30^th, the Attorney General upheld the new bylaw and the Chief of Police told the merchants they had three months to get rid of their game before he had them seized. Outraged, the nine merchants hired a lawyer and filed a civil suit in the state Superior Court on October 6 claiming that Bylaw 48 violated the state and federal constitutions. They also applied for a restraining order preventing the removal of the games. When the application was denied, they filed for a petition of relief with a single justice of the Appeals Court. Meanwhile, the Superior Court dealt the merchants another blow when ruled in favor of the town.

The single justice, however, said that the trial court was not the proper place to address the constitutional issues that had been raised and ordered the parties to seek a speedy hearing in the Superior Court. To make their case, the merchants had relied on three things. One was the 1982 case Turnpike Amusements Vs. City of Cambridge, which said a licensing board couldn't arbitrarily make a determination. on whether coin-op devices could be operated but had to judge each location individually. Another was the fact that the bylaw would include items clearly protected by first amendment (such as coin-op peep shows). The most important, however, may have been a nine-minute videotape that the merchants’ lawyers showed featuring footage of five different video games (Ms. Pac-Man, Tron, Donkey Kong, Zaxxon, and Kangaroo) and also showing what went into the making of a video game. Like many of those who had supported the bylaw, the justice had never seen a video game before and the videotape convinced him that there was a potential First Amendment issue in the case.

            Whatever hope the justice’s decision may have granted the merchants was dashed on June 13, 1983 when the Massachusetts Supreme Judicial Court once again ruled in favor of Marshfield. This Superior Court judge wasn’t nearly as impressed by the video tapes as the justice had been, denying that video games had "sufficient communicative expressive elements" to merit protection under the First Amendment and declaring that they were “in essence, only technologically advanced pinball machines.” The court also rejected claims that the bylaw violated equal protection, noting that the right to pursue one’s business had never been considered a protected right meriting “strict scrutiny” and thus had to be judged by the less stringent “rational basis” test. Under this standard, the court found that the city had a legitimate interest in controlling the crowds and noise that video games might cause during the busy summer months. While the court agreed that a less-restrictive law (i.e. one banning games only during the summer) might have been more efficient, they could not declare a statute unconstitutional just because the means to achieve its purpose were “…rough, illogical, or not the best available.”, noting further that “legislative bodies are not required to convince the courts of the correctness of their legislative judgments.” The one novel claim in the case, that the law was overbroad, was also rejected. While Marshfield had lost the battle, however, there were hints that video games would ultimately win the war. The most significant thing to come out of the decision may have been the court’s acknowledgment that in the future, video games might advance to the point where they contained sufficient communicative and expressive elements to warrant First Amendment protection (Ira Zaleznik, lawyer for the plaintiff later opined that laser disc games might represent just such a case).

            That was in the future, however. For the present, Marshfield had lost yet again. The ruling came as a relief to Marshfield attorney Robert Marzelli, who had warned that a victory for the video game industry "would create the right to play trivial arcade games as one of the cornerstone freedoms of our society. Such a decision would not only degrade the First Amendment; it would surely start a torrent of litigation on the question of which kinds of automatic amusement games were protected, which were not, and the nature of the protection accorded to each." The merchants, however, had one last chance. They appealed their case to the Supreme Court. On July 12, 1983 the merchants got another reprieve when Supreme Court justice William Brennan issued a temporary restraining order prohibiting the removal of the games until the court weighed in on the issue. It turned out to be just a tease, however. On November 28, the Supreme Court voted 7-2 (with only Brennan and Byron “Whizzer” White in dissent) not to review the state Supreme Court’s decision. It was the end of the line. The merchants had lost and all the video games in Marshfield were carted off in trucks in December. Marshfield Family Skateland was converted into a restaurant. The Marshfield Sports Center went out of business The Marshfield saga was over.

            But it wasn’t. Over the years, as other communities eliminated restrictions on video games, Marshfield remained steadfast. The town even achieved a kind of notoriety as the only town on earth where video games were illegal. In April, 2011 the town made national headlines again when they once again voted to repeal the ban. The measure was defeated 655-544. Finally, in April, 2014 Marshfield voted 203-175 to overturn the now 32-year-old bylaw. By then, however, coin-op video games were as rare as dodo birds (at least in the eyes of the press) and the story generated little interest.

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[1] Various sources have given different figures for the number of games in town. The 60-70 figure appeared in a newspaper article as well as a Play Meter article. A later Play Meter article gave a figure of 70 while other articles in Play Meter and RePlay gave figures of 35, 53, and 200.

[2] Boston Herald, June 17, 1982

[3] Play Meter, August 1, 1983

[4] Clara Germani, "The parents of Marshfield win their battle to ban video games", Christian Science Monitor, May 15, 1983.

[5] Marshfield Family Skateland, Marshfield Sports Center, Sea Side Grocery, two other stores, a restaurant, and three taverns.