An amicus curiae brief filed by a California state senator in a case under appeal to the U.S. Supreme Court highlights the contentious fault lines in the ongoing debate over government regulation of video games.
California State Sen. Leland Yee (D-San Francisco), author of a 2005 statute banning the sale and rental of violent video games to minors, filed the brief in support of Gov. Arnold Schwarzenegger (R), who is seeking consideration by the highest court after the law was rejected by both the U.S. District Court and the Ninth Circuit Court of Appeals.
“The United States Surgeon General has also warned of a demonstrated link between screen violence and subsequent physical aggression in children and adolescents that is stronger than the link between second hand smoke and cancer,” Yee wrote, adding parents of minors cannot be expected to evaluate video game content as they do for other media.
“Parents can read a book, watch a movie, or listen to a CD to discern if it is appropriate for their children,” Yee wrote. “These violent video games, on the other hand, can contain up to 800 hours of footage with the most atrocious content often reserved for the highest levels and can be accessed only by advanced players after hours upon hours of progressive mastery.”
Game Industry Disagrees
The creators and merchants of video games strongly disagree with Yee’s assessment, both of the potential dangers of violent video games and of the ability of parents to make informed judgments about their content.
Jennifer Mercurio, vice president and general counsel of the Entertainment Consumers Association, calls Yee’s law “unjustified, irresponsible, and politically self-indulgent.”
“Because media, by its very nature, is subjective and open to interpretation, choice must necessarily be personal and individual—as it is with music, movies, and television,” Mercurio said. “The Entertainment Software Rating Board (ESRB) assigns rating categories and content descriptors for video games sold in the United States, and does so more comprehensively than parallel systems. Clearly, game consumers have at their fingertips all of the knowledge and information they could possibly need to discern what’s right for their family.”
Since 1994, the ESRB—a nonprofit industry self-regulation body—has rated more than 10,000 video game titles, with specific ratings for types of offensive content. It provides a “mature” (M) rating for games deemed unacceptable for sale to minors.
Self-Policing Sufficient?
The Federal Trade Commission says the voluntary implementation of ESRB standards has had mixed results, though enforcement by retailers is improving, as revealed by the FTC’s “mystery shopper” monitoring program.
In 2000, 85 percent of underage customers in the “mystery shopper” test were able to purchase games rated “mature,” but the 2007 report showed that statistic reduced by more than half. That result was hailed for its success by Sen. Joseph Lieberman (I-CT), a longtime advocate of stricter regulation of video game sales.
Attorney Paul Smith of Jenner & Block, author of the Entertainment Merchants Association’s Supreme Court brief in the California case, maintains the success of self-policing shows laws banning the sales are unnecessary.
“The courts have uniformly held such laws to be unconstitutional,” Smith said. “There is already a voluntary system of rating games and barring purchases of M-rated games by children under age 17, and that system is reasonably effective. And the research supposedly showing that exposure to violent games is harmful to minors is extraordinarily thin.”
Constitutional Questions
If such government intervention were held to be constitutional, Smith says, it would prove difficult to “define a line between permissible and impermissible violence.”
“Even if you could, you’d then have to show that the games prohibited for children are actually different in kind than other games and other media in terms of their impact,” said Smith. He suggests there would still be First Amendment hurdles for such regulation.
“Politicians are targeting gaming and gamers now because it’s politically advantageous to do so,” said Mercurio. “But from a First Amendment perspective, video games are protected speech, just like books, comics, music, and movies.”
The Supreme Court has never ruled on the constitutionality of a statute attempting to restrict minors’ access to violent video games, and the case this fall is therefore expected to attract great attention from gamers, merchants, activists, and politicians.
Ben Domenech ([email protected]) writes from Leesburg, Virginia.
Benjamin Domenech is the founder and publisher of The Federalist and a senior fellow at The Heartland Institute.
