Government Oversight in Video Games: Free Speech or Obscenity?

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.

Justice Stephen G. Breyer

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 Antonin Scalia

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.

June 7th, 2011 by johneboy1970 | 8 comments
Johneboy1970 is a guest contributor to HomeStation Magazine.


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8 Responses to “Government Oversight in Video Games: Free Speech or Obscenity?”

  1. cthulu93 says:

    As will I.I strongly suspect the state of california is more interested in raising revenue out of this law than it is in protecting children.It seems that whenever a government in this country wants to do something of dubious legality they trot out”National Security”or”It’s for the children” but I really have to ask”Since when did the government become so Moral and the population so immoral that the government would always act in our best interests?”

  2. NorseGamer says:

    Personally, I really don’t see the value of state or federal government oversight in controlling the ratings and sales of video games. The only justification for the population incurring such an expense is that it might somehow help prevent an underage, “impressionable” youth from committing acts of violence or sexual misconduct against other living beings.

    The problem with this conceit is that someone who is so emotionally or mentally unstable as to be moved by a video game to commit illegal acts *was a doorknob to begin with.*

    (It’s sort of like the old fallacy that speed kills. No, speed does not kill. Stupid drivers kill. Otherwise, how do you explain that Germany’s autobahns have a lower per-capita death rate than America’s roads?)

    I don’t mean to go all John Galt here, but government oversight of the video game industry would, in my view, serve no demonstrable benefit at all.

    Epic article, John. Thanks for writing it!

  3. cthulu93 says:

    Not only would it serve no demonstrable benefit but I believe it could be used as a vehicle for some very questionable actions on the part of politicians.From the outright illegal,bribes,to the objectionable,legislating morality,this could be a fertile field for corrupt and misguided politicians.Then I could see,in 5-10 years time,the need for a new layer of government to keep an eye on this layer.In the end the public would be paying for something it never wanted,never really needed,and will most likely never be rid of.In the end if there is a need for this,which I doubt,then all it would take to take care of the problem is for parents to become a little more involved in their kids gaming habits.Which has the benefit of making families closer as well as not saddling the public with new taxes or fees to pay for new ways to needlessly intrude in ppl’s lives.

  4. Burbie52 says:

    This whole idea of the government getting involved at this level in our personal decisions about our children is ludicrous. I have friends who don’t allow their kids to watch anything over a pg rating or play any video games too old for them. It is up to each individual family to decide whats best for their kids, and though some may make bad choices, it is their choice to make, not the governments. I believe most parents try to make right choices for their children, but is we as a people allow the government to start down this road, it is a very slippery slope as mentioned that can lead anywhere they choose for it to go. This needs to be shot down and I am grateful to see it has been opposed enough to make it to the Supreme Court. We as voters need to contact whoever can get the message to them that we don’t want this in any way, shape manner or form.

  5. johneboy1970 says:

    @Cthulu: Very astute observations. Indeed, once a branch of government is set up (whether for good or ill) it tends to create many tendrils and offshoots…many of which having to do with keeping an eye on the activities of the original trunk, so to speak. Additionally, once an agency is set up said agency has to find ways to justify its existence. If the Court rules that the government indeed has such jurisdiction in this case, we will all be seeing mainstream news stories on the evils of violent video games in the hands of minors. A boogyman os always necessary to swing popular sentiment in areas which are originally considered ludicrous.

    Personally, I think this move has little to do with raising revenue for the state (such as in the case of the red-light cameras popping up in many place). Initially, it was used by Governer Schwarzenegger to prop up his poll numbers as he catered to “concerned parents groups”. Then it was moved forward, in my opinion, as a pure power grab. It seems that governmental control via reliance and restrictions is the mode du jour or our current political climate.

    @Norse: NorseGamer as John Galt in the movie version of “Atlas Shrugged”? You got my vote! I’d pay the price of admission (plus popcorn and sno-caps) to see that on the big screen.

    @Burbie: I agree with you completely, Burbie. What I didn’t include in the article is that this push has already been struck down in every lower court it has come up in…which is why I was a tad surprised to see it in the docket for this year’s session. Hopefully, the high Court will go the same route.

    Unfortunately, if this is marked as “Constitutional” we’ll be sure to see more states piling on the band wagon, eventually followed by the Federal government (and they will say, of course, that it’s all in the interest of protecting our children).

    To paraphrase Moses…errrrr, Heston, “They can pry my wireless controller from my cold dead hands!” :>

    • Burbie52 says:

      You know the silliest thing about this whole fiasco is that it won’t stop a thing. Just like many of the morality laws that have been made for our “protection” or our children’s, many people will just ignore it and do what they want anyway. How many times have you been to a theater and seen parents bringing kids to an age inappropriate film? All this law will do is make government bigger(as if it isn’t big enough already)and add to our tax burden to pay for it. Somehow I don’t see them creating a division of morality police bashing down doors and checking each household for inappropriate video playing. They would have to catch the kids in the act, because the parents are obviously old enough to play the games. This whole thing is a joke really and unenforceable.

    • cthulu93 says:

      TY john and yes the thing about government branches is quite true.Once given a toehold they will expand greatly,this is not always a bad thing but great care and thought should be given before allowing them into anything.But this oversight thing really doesn’t need much thought really,the government can’t adequetely watch itself let alone another industry.

  6. Terra_Cide says:

    This is definitely a pure, short-sighted power grab.

    Think about it – just a generation ago, how many adults with children did you know play video games? I’m not saying there were none, but they were definitely in the minority.

    That is beginning to change, and the tipping point is coming.

    The real solution, as John observed and experienced, is increasing awareness of the existing ESRB ratings, not regulation made redundant in a few decades by life-long gamers who know more about a given game franchise than the pencil pusher that decides if it’s “child friendly” or not.

    Caveat emptor.

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