Thursday, April 29, 2010

The Big Leagues: Struck-Down Game Law Goes to the Supreme Court

Bill Earlier this week, the United States Supreme Court announced that it would hear Schwarzenegger v. Video Software Dealers Association in its fall term.

The case is an appeal for struck-down California state law which would prohibit the sale of adult-themed video games to minors. The law specifically mentions games in which the player participates in "killing, maiming, dismembering or sexually assaulting an image of a human being."

This case is the culmination of years of battling between lawyers, politicians and the video games industry. The politicians and lawyers, represented by folks such as California senator Leland Yee and disbarred attorney Jack Thompson, argue that violent and, to a lesser extent, sexually graphic video games have a corrupting effect on impressionable youths, that the rating system in place isn’t doing enough to protect minors from the games. The game industry proponents counter that evidence linking video games to violent behavior is tenuous or inconclusive at best, and that banning sale of these games to minors would infringe upon game developers’ First Amendment rights.

The Supreme Court case could put the final nail in the coffin for many of these laws when it is heard in October – what follows is not a blow-by-blow account of all of the legal brouhaha and the arguments from both sides, but rather some points about what the law is trying to do, where it falls short, and what we can do to more effectively address lawmakers’ concerns.

The Law

The California law in question has three main goals:

  • Make the sale of adult-themed games to minors illegal
  • Require retailers to stock adult-themed games in a separate area, away from games intended for children
  • Require retailers to post signage explaining the current game rating system

The laws passed California’s Congress and were signed by Governor Arnold Schwarzenegger, but were later shut down in court on the grounds that they endangered game developers’ freedom of expression.

Most of the video game press demonizes or oversimplifies the Schwarzenegger side of the debate, which is admittedly pretty easy to do – Jack Thompson’s circus-like court cases and disbarment are the stuff of legend, and some of these laws’ louder proponents are the shrill, underinformed, someone-please-think-of-the-children types who come out of the woodwork every time someone invents a new musical genre. However, some of the California bills’ aims are what I might consider reasonable – in particular, a section requiring retailers to explain the system by which games are rated for content.

The Rating System

548527-esrb_m_super The Entertainment Software Rating Board, or ESRB, assigns one of several content-based ratings to every game that comes out in the United States – the most common are E for Everyone, T for Teen, and M for Mature. These are roughly analogous to the G/PG, PG-13, and R ratings assigned to movies, but are not as widely disseminated or understood as are movie ratings.

A concentrated effort on the part of the ESRB, retailers, and game industry notables to promote understanding of this system could go a long way toward patching the chasm between the law as suggested and the reality of the situation - most of the truly impressionable minors (pre- and early teenagers) which the law seeks to protect do not have consistent, reliable sources of income. It’s almost certain that most games sold to minors are purchased not by the minors themselves, but by their parents or other family members.

This is where awareness of the existing ESRB rating system comes in handy – people who simply look at the Christmas list and buy the games sometimes don’t know what they’re getting for little Timmy. Mass Effect 2, while rated M, has no obvious references to blood or sex in the box art, even though the game features plenty of killing (sometimes in cold blood) and also gives you the opportunity to do it with several of your female companions. Grandma isn’t bringing the Blade trilogy to anyone’s eighth birthday party because she knows what an R-rated movie is – make sure she knows just as well what an M-rating entails.

Summaries of the different ESRB ratings can be found on the ESRB Web site.

Parenting Involves Responsibility (okay you guys?)

child-watching-television-silhouette This leads me to my second point – allowing or disallowing minors to play these games is the responsibility of the parent, and there’s no argument that can convince me otherwise.

This defense is often cited by parents who themselves play games – it may be more difficult than just sitting them in front of the TV and letting them do whatever they want, but one of the many responsibilities you have as a parent is to know what your child is doing and who with. This is non-negotiable. No law can (or should try to) replace proper parenting.

I sincerely hope that as the people who’ve played video games all their lives themselves become parents, concerns such as those addressed by the California bill are addressed as a matter of course. People with a more thorough understanding of this technology, what it does, and how it works can lead naturally to better parental supervision, and fewer scandalous, fact-free horror stories about game systems exposing our childrens to worlds of pornography.


This law and laws like it have been shot down at the state level not just in California, but in several other states as well. Legislation to put such restrictions in effect at the national level was similarly fruitless. Ultimately, I don’t think that the California judge’s decision will be overturned, and that this will set a precedent that will put an end to most of the efforts to restrict these games at the state level.

However, the Supreme Court is hearing the case, which it wouldn’t do for no reason. It may be that there are some additional wrinkles that have yet to be considered, or that a less restrictive version of the bill may yet be passed. We’ll continue covering this story and discussing these issues as they come up – in the meantime, the topic is ripe for discussion. Sound off in the comments.