by Johneboy1970, HSM guest contributor
A case is currently being debated on the Supreme Court’s 2011 session docket as to whether the US government should be able to regulate the distribution of video games to minors or to treat the content in games as protected free speech.
The case (originated as Schwarzenegger v. Entertainment Merchants Association), came out of the California courts when the state government decided to pursue the authority to regulate the sales of video games. The law that the state had proposed would ban the sale of “adult” video games to minors, with the penalty being a fine of up to one thousand dollars. The legal definition of violent games, according to the suit, would be games “in which the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being…in a way that is patently offensive… appeals to minors’ deviant or morbid interests…and lacks serious literary, artistic, political or scientific value.”
Video games, much like movies, are currently self-regulated via a ratings system (the ESRB). If the Court allows oversight of the distribution of games this would, in effect, create a Constitutional ‘side-bar’ or exception which would only be applied to the gaming medium – which is akin to the regulations defining government’s role in the distribution of pornography.
Proponents of such regulation often cite the amount and types of violence and sex (with an emphasis on the violence) depicted in many games as to why sales should be regulated by government. Those opposed equate the medium with films and books, noting that no such oversight exists for other forms of popular entertainment; exceptions to this rule of thumb include not only the aforementioned pornography, but also TV and terrestrial radio which are regulated by the FCC (note that the FCC’s regulations are not laws. They derive their authority from executive mandate).
The court itself seems divided on the matter. Justice Breyer, who leans in the direction of government oversight, stating common sense should allow the government to help parents protect children from games that include deviant depictions of “gratuitous, painful, excruciating, torturing violence upon small children and women.”
Justice Scalia voiced his strong opposition to Breyer’s stance, asking, “What’s a deviant violent video game? As opposed to what, a normal violent video game? Some of the Grimm’s fairy tales are quite grim. Are you going to ban them, too?”
Although somewhat contentious, Scalia’s words reflect the worry that such laws and regulations may end up taking us down a First Amendment slippery slope. How much regulation into the daily lives of people is necessary, and where is the line drawn which determines that a government has become totalitarian in its efforts towards the public good? And is such regulation warranted to begin with?
As noted earlier, the video game industry currently polices its own distribution via a ratings system, much like one would find for movies. While that system is, perhaps, not perfect – what system is – my own observations lead me to believe that it is effective – at least from the standpoint of the retailer. The foreknowledge of the purchaser – most notably adults over 35 – is another story entirely.
As a parent who is also an avid gamer, I’ve spent many an hour browsing the local game retailers (which is just EB Games in my area – I try to avoid box stores like Wal-Mart for such purchases), sometimes with my children in tow. I personally have never allowed my kids to purchase or play a game which was rated out of their age group. I have also been aware of other parents’ shopping habits in this respect.
I have seen kids take a game off the shelf and ask the parent to buy it. I have never, in my experience, heard a parent tell a child “no” based on the rating clearly marked on the box. I’ve even offered my assistance – as a fellow parent – to let them know that a game was extremely violent, or that it was rated out of their child’s age group.
Many parents I spoke with didn’t even know that a ratings system existed for video games, and thanked me for pointing it out. Some gave me blank stares, and quietly slid the game back on the shelf. A couple gave me grief about my ‘interference,” and brought said game up to the counter for purchase, where the clerk informed the parent that the game was too ‘adult’ for their child. Those parents had choice words for the clerk as well, then bought the game for their child as the clerks made it very clear they would not sell it to the child. Both times I witnessed this happen the game in question was one from the Grand Theft Auto series, and the children were no more than eleven or twelve.
The laws being proposed are clearly targeting the sellers of games who have – in my experience at least – done a relatively good job in policing their own industry. That being said, I wonder if it’s even necessary to establish governmental oversight of the industry in this way. The onus – much like in the way of movies, music, art, and literature – falls upon the parent to make the ultimate decision on what their children consume. Considering that, one wonders if the next laws to be enacted concerning the regulation of sales of games will be on all interested parties, as opposed to just the sellers.
With scant evidence that gaming leads to violent behavior, perhaps this Constitutional challenge is more about whether there is ever a justification for a government to regulate the mores and norms of its own society, and whether we are able to freely make decisions – albeit decisions which do not adversely affect anyone – on what we and our families utilize as entertainment.
With only two cases currently on the Court’s docket, the judicial decision will be made soon. I, for one, will be very interested to see what the Court decides.