Generally, I leave commentary on video game legislation to Game Politics and The Video Game Law Blog because there’s so much to keep up with. Now, however, anti-game attorney Jack Thompson has been asked to draft up a bill that would restrict the sale of violent games to minors in my home state of Massachussets. This trend in attempting to legislate against games is getting pretty ridiculous, and I have been researching it on and off for the last couple years, so I thought it might be time to weigh in. In short, the bill in Massachusetts won’t pass, no bill of this kind will be likely to pass in the foreseeable future, and odds are that you live in a state that is now or has recently been wasting time or money trying to pass doomed legislation aimed at securing voters.
Why do I call this legislation “doomed”? Well, it has all been repeatedly deemed unconstitutional in court, and even the people charged with defending it know it won’t pass. Jack Thompson has also drafted bills for Louisiana and Utah; Lousiana put forth no defense when the bill was challenged in court, and Utah’s Attorney General has recently stated that it’s pretty clear the bill he would end up defending can’t actually stand as law.
According to my records, more than half the states in the country (30 plus the District of Columbia) have proposed some sort of bill regulating the sale of console and computer game sale and rental. Six of these states have passed laws restricting the sale and rental of video games based (at least in part) on violent content. Last I checked, California’s was still in court, and the rest had been overturned. For a pretty good overview of what’s been proposed, take a look at MediaLegislation.org. (We differ somewhat in our political orientations on this matter, but the site and its owners have been very helpful in compiling my own records.) In each case that such a law has been overturned, the defendants (i.e., taxpayers) have had to pay hundreds of thousands of dollars in legal fees to the Entertainment Software Association.
Legal experts seem to agree that there are two ways to potentially restrict minors’ access to violent games, but as of yet, neither of these approaches has been successful. At the rate legislators are going, neither approach will be successful before some other new medium comes along to induce a new moral panic. Here, I’ll explain what’s not working with each approach.
Violence as Obscenity
The bills Thompson has drafted attempt to include violent content in each state’s already-written laws on obscenity, and this has repeatedly proven insufficient to stand up in court. This approach would essentially classify video games as the violent equivalent of pornography, restricting the sale of certain violent games to minors. For examples of how such laws are worded, compare Utah’s current law on obscenity with the proposed amendment.
As Judge Kennelly noted in his statement overturning a video game sales restriction law in Illinois, violent content has never been included in the definition of obscenity because it has been used for expressive purposes throughout the history of narrative; and, while pornographic content is specifically designed to sexually titillate, violent content does not aim to encourage real acts of violence. Lower standards for regulating non-obscene materials have been approved only in the case of broadcast media because of their “uniquely pervasive” quality. The judge who overturned Washington’s video game law even agreed that some violent games qualify as “filth” in his eyes, though fail to meet the legal definition of obscenity as applied to sexual content (Video Software Ass’n v. Norm Maleng, 2005, p. 5). Mind you, some states have succeeded in amending their laws on sexually obscene material to cover sexually obscene games, so long as they don’t mention violence.
Preventing the Effects of Violent Content
Not all bills attempt (or only attempt) to classify violent content as obscenity. Some take another approach, or even write both rationales into one bill. This other approach is to claim that the state has a compelling interest to protect minors from some negative effect. To be constitutional, the legislature must demonstrate (a) that the games are certainly having some ill effect on children, (b) that regulating the sale of such games will prevent that effect from occurring, and (c) that this regulation will not hinder adults’ access to such games. At present, this approach is practically impossible on all levels.
To satisfy the first condition, legislators would have to demonstrate that research on the effects of violent games confidently demonstrates that such games cause children to act violently or become emotionally disturbed. That may be difficult enough to demonstrate, considering that the bills as proposed restrict sale for minors more generally, while the effects in question may be quite different for small children versus teenagers. Even if researchers were in agreement that the effects were predominantly negative—and they are certainly not so unified in their opinion—there would still be significant disagreement about what those effects mean. Is honking an air horn at your opponent for a few extra milliseconds an appropriate measure of intent to commit violence, or a measure of something else entirely? The “aggression” encouraged by playing games might not necessarily be a bad thing. A member of the Quake Grrlz movement (as quoted by Henry Jenkins in his Senate testimony) once suggested, “Maybe it’s a problem…that little girls DON’T like to play games that slaughter entire planets. Maybe that’s why we are still underpaid, still struggling, still fighting for our rights. Maybe if we had the mettle to take on an entire planet, we could fight some of the smaller battles we face everyday.” These are only a few of the many issues complicating the interpretation of violent games research.
To satisfy the second condition, legislators would have to make a case that the law as written would actually prevent the negative effects on children. This, too, seems unlikely, considering that an FTC report (2000) found that the majority of violent game purchases were made by or in the presence of adults, and that the music and movie industries were even worse about selling adult-rated material to minors. Kennelly’s aforementioned statement notes, “the underinclusiveness of this statute—given that violent images appear more accessible to unaccompanied minors in other media—indicates that regulating violent video games is not really intended to serve the proffered purpose” (p. 39). If parents are going to buy these games for kids anyway, the law wouldn’t actually do what it is ostensibly designed to do.
As for the third condition noted above, even the most seemingly specific bills are so broad as to have a negative impact on what material is even created in the first place. If game publishers are too nervous about whether WalMart would carry their violent games, that hurts the chances of those games even being, which potentially restricting adult access. A recently-proposed bill in New York, for example, attempts to restrict games depicting hate violence based on race or religion. If this bill targeted movies, movies like American History X would have basically been stigmatized as “rated X.” As a hypothetical example, consider that this bill would restrict the sale of a game about the Crusades, even one developed that attempts to make the player question history and the purpose of violence. Many bills attempt to restrict the sale of games depicting violence against humans or human-like characters, but where do you draw the line in a medium with so much fantasy and science-fiction content? Some of the goriest games include killing zombies—do those count as “humans,” or are they exempt because they’re already dead?
Overall, the legislative attempts to regulate violent games have been marked by ignorance of how games actually work and disregard for existing legal precedent. No distinction has been made in any bill between committing acts of violence as the player or simply depicting acts of violence as you might in a movie. Future legislation may take such distinctions into account, but that would require that lawmakers educate themselves more extensively on what video games are actually like, and not just the scary tidbits that make it to the news.
As of the end of 2005 (when I last traced who was proposing which bills), most of these bills had been proposed or predominantly championed by Democrats, presumably looking to secure certain voters. It’s interesting to note that some politicians have more recently changed their tune on this debate. Hillary Clinton and Joe Lieberman, for example, went from proposing federal-level legislation to cooperating with the video game industry’s ratings body for an awareness campaign.
My take on this move is that the politically savvy will find other ways to capitalize on the video game violence issue, and the rest will keep on wasting our money until something scarier comes along. Consider checking out MediaLegislation.org’s and Game Politics’ legislation tracking pages to see what your state has been up to lately.