December 17th, 2005

Courts Lift Curbs on Kids Buying Violent Games

By Christopher Conkey
Wall Street Journal

Legislative efforts to keep ultraviolent and sexually explicit videogames away from children are running into a legal roadblock: the First Amendment.

Federal judges in Illinois and Michigan in recent weeks have blocked laws that banned sales to children of videogames such as “Grand Theft Auto: San Andreas.” The judges found that the states failed to offer compelling reasons to restrict the free-speech rights of game makers and players. The decisions continue a string of defeats for restrictive laws dating back to 2001.

The battle isn’t over. Yesterday a trio of Democratic senators with presidential ambitions introduced federal legislation that they believe can pass constitutional muster.

The legislation, unveiled at a press conference by Democratic senators Hillary Rodham Clinton of New York, Joe Lieberman of Connecticut and Evan Bayh of Indiana, would essentially codify the industry’s current voluntary rating system. It assigns games letters from “EC,” meaning appropriate for early childhood, to “AO” for “adults only.” Retailers who sell games rated “mature,” “adults only” or “ratings pending” to children under 17 could face fines of $5,000 per violation.

Proponents of the bill said by relying on the industry’s own ratings system it eliminates subjectivity over which games are banned. Paul Smith, a partner at Jenner & Block in Washington who represents the videogame industry, said that logic is invalid. “You can’t set up a criminal statute where the prohibitions turn on the decisions of some private standard-setting group,” he said.

The proposed law would effectively strip some videogames of First Amendment protection. To withstand a court challenge, advocates of the law would likely have to show that violent games are a threat to public health because they cause violent behavior. So far they haven’t been able to demonstrate that in state cases.

Illinois Gov. Rod Blagojevich, a Democrat, has vowed to appeal the judge’s ruling in his state. “We’ve already agreed as a society that children shouldn’t be able to buy pornographic magazines. We don’t allow them to have alcohol or tobacco. It only makes sense to keep videogames that are full of graphic violence and sex out of their hands as well,” he said earlier this month in announcing the appeal.

In California, advocates of a ban that was signed into law by Republican Gov. Arnold Schwarzenegger are plotting strategies to overcome an expected unfavorable court injunction. The California law bars the sale or rental to minors of games that show the killing, maiming or sexual assault of a character depicted as human, and that are determined to be especially heinous, atrocious or cruel. Violators are subject to a $1,000 fine per violation.

Proponents of the law, anticipating a trial next year over its constitutionality, are seeking to define ultraviolent and sexually themed videogames as “obscene” for children. That would free them from the need to prove that graphic games pose a public-health concern, because courts have allowed restrictions on the sale of obscene material to children.

About half of the 50 states are considering proposals that would restrict sales of violent games to minors or levy fines on businesses that sell the games to children. Some are on hold as legislators watch the court battles in other states.

The most influential videogame decision was delivered in 2001 by the Seventh Circuit Court of Appeals in Chicago. In overturning an Indianapolis statute, Judge Richard A. Posner said the graphic content in videogames, while coarse to many, deserves the same protection as gruesome passages in such literary classics as “The Odyssey,” “The Divine Comedy” and “War and Peace.”

“Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture,” Judge Posner wrote. “To shield children right up until the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to deal with the world as we know it.”

Industry groups have long objected to legal restrictions. Doug Lowenstein, president of the Entertainment Software Association, the trade group for videogame publishers, likens the criticism of videogames to fears in the 1950s that rock ‘n’ roll would destroy society’s moral fiber.

“Lo and behold, after listening to the Grateful Dead and acid rock and Jefferson Airplane, they grew up to be lawyers and congressman,” Mr. Lowenstein says. “Ten years from now, we won’t be having this conversation because the people running this country will have grown up playing videogames.” The industry wants to be left to police itself as movie theaters do by keeping unaccompanied minors out of R-rated films.

Legislatures have struggled to draw sharp boundaries around what should be forbidden. The Illinois law would ban sales to minors of games that portray “human on human” violence. That phrasing led to debates on the floor of the Illinois legislature over whether human-on-space creature violence, or an alien impersonating a human fighting another human, would be prohibited.

The popularity of Microsoft Corp.’s Xbox, Sony Corp.’s PlayStation and Nintendo’s GameCube has driven rapid growth for the videogame industry. PricewaterhouseCoopers estimates that global revenue will more than double to $54.6 billion in 2009 from $25.4 billion last year.

Two videogames released last year revived political efforts to limit sales to minors. The first was “JFK Reloaded,” which reenacts the assassination of the president. The other was “Grand Theft Auto: San Andreas,” the best-selling videogame of 2004. In the Grand Theft Auto series, players can assume the identity of a gang member who carjacks, picks up prostitutes and runs over people. The San Andreas version caused an uproar this past summer when it was discovered that gamers could unlock hidden sex scenes by downloading software from the Internet.

Comments

  1. Posted by Martin on February 7th, 2006

    Lowenstein is merely defending profits obviously.  Rock-n-roll just may well have disrupted the moral fibre—we certainly haven’t improved but are worse --, however, I don’t recall any Jefferson Airplane lyric that states it is okay to kill people.  These video games make it seem standard to be militant and criminal.  I believe when children are exposed to that kind of visual media without guidance, they assume it is normal behavior.  Right and wrong need to be taught and limiting exposure to Wrong things is paramount.
    When are we going to stop making excuses?

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