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Violent game legislation misses the mark yet again

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Yesterday, I posted about a bill which seeks to legally enforce ESRB ratings. The first questions several of our commenters posed were, more or less, "What? This again?"

You can check out the story to learn more about H.R. 287, but suffice it to say the bill would add legal teeth in the form of a maximum $5,000 fine to the voluntary agreement between video game retailers and the Entertainment Software Association--the agreement which makes sure all of the games retailers sell have a familiar little black-and-white label on the front, and that kids can't buy those games if the label reads "M" or "AO."

The Video Games Ratings Enforcement Act sounds kind of similar, as our commenters pointed out, to the California law which banned the sale of violent games to minors. That law was never actually enforced, moving from court to court until it was struck down by the Supreme Court--the big one--in its 7-2 ruling on Brown v. Entertainment Merchants Association in 2011. So what makes Rep. Jim Matheson (D-Utah) think, if his bill were to become law, it wouldn't suffer a similar fate?

Matheson had the good sense to use an established ratings system (which 68 percent of parents feel allows them to make an informed purchasing decision) as the bill's acid test. Instead of complicated labels which a "reasonable person" might find apply to a game's acts of violence (Is it "patently offensive?" Is it "depraved?"), the VGREA defers to the judgment of the Entertainment Software Ratings Board.

Did the ESRB rate the game "M for Mature" or "AO for Adults Only?" Then it can't be sold to persons under the respective ages of 17 or 18.

Matheson wants this act to go arm in arm with the games industry, while Brown v. EMA wanted to hold the industry at arm's length. But the ESA provided us with a statement which politely declines the invitation.

“The Entertainment Software Association (ESA) shares Representatives Matheson’s goal of ensuring parents maintain control over the entertainment enjoyed by their children. That is why we work with retailers and stakeholders to raise awareness about the proven Entertainment Software Rating Board (ESRB) system, the parental controls available on every video game console, and the importance of parents monitoring what games their children play.

“However, this type of legislation was already ruled unconstitutional and is a flawed approach. Empowering parents, not enacting unconstitutional legislation, is the best way to control the games children play.”

Is it fair to lump the VGREA together with the California law, when they employ substantially different means? From the decision Justice Antonin Scalia wrote in the Brown v. EMA decision, it would seem so.

Scalia said the effects violent video games have on children's feelings of aggression were "both small and indistinguishable from effects produced by other media" in the studies presented by California. The same effects were found "when children watch cartoons starring Bugs Bunny or the Road Runner, or when they play video games like Sonic the Hedgehog that are rated 'E,' or even when they 'view a picture of a gun.'"

"Of course, California has (wisely) declined to restrict Saturday morning cartoons, the sale of games rated for young children, or the distribution of pictures of guns. The consequence is that its regulation is wildly underinclusive when judged against its asserted justification, which in our view is alone enough to defeat it. Underinclusiveness raises serious doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint."

The VGREA is similarly underinclusive. Scalia went on to say the California law was also overinclusive, because "[n]ot all of the children who are forbidden to purchase violent video games on their own have parents who care whether they purchase violent video games," and therefore was not narrowly tailored enough to assist parents. The VGREA is similarly overinclusive.

To be fair, 87 percent of the time those children are still unable to buy mature-rated games from retailers who voluntarily adhere to ESRB recommendations, according to a 2011 FTC survey. It found that video game retailers are easily the most effective at enforcing rating age requirements compared to music and movie stores and theaters.

I think the games industry should take more responsibility for its content, and consider how its deservedly shoddy public image contributes to this sort of recurring legislation.

But neither of those problems, nor any others, will be solved by H.R. 287.

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28 comments

  • joemoreheroes - January 24, 2013 2:33 a.m.

    This is utterly pointless. Retailers already have a policy against selling games to minors, so passing legislation punishing them for violating their own policies that they already enforce makes almost no sense. If there was some sort of epidemic where kids were buying mature rating titles under age then maybe this proposal would be somewhat justified. But it is almost exclusively being proposed on the assumption that video games have a negative impact on children and society, and that minors are going to the store and physically purchasing these dangerous materials by themselves without being asked for identification or having a parent present (which is required by retailers already). Interestingly enough it appears that commenters here agree with old, out of touch politicians that their hobby is damaging, causes violence, and thus should have laws and restrictions aimed at doing something that is already being done, in order to curb the threat of gaming. Also the Supreme Court has already ruled against this sort of thing and unless they go against their ruling as well as redefine what kind of media the government can restrict from the public, then the result will most likely be the same if they again hear a case of this sort.
  • wheresmymonkey - January 21, 2013 8:56 a.m.

    In the UK PEGI and before that BBFC ratings on games are legally enforced. If a shop assisstant gets caught selling call of duty to a 10 year old they get a £1,000 on the spot fine and probably fired as well. It just makes sense , doesnt stop irresponsible parents buying little timmy call of duty for christmas but makes it a lot easier for parents to police what games their kids play. These laws have had absolutely no effect on the games that come out. they are almost never censored and Manhunt,GTA and Carmaggeddon were all made in Britain. Just another set of laws where america is behind the rest of the world and doesn't understand there usefulness.
  • TombReaver - January 21, 2013 7:48 a.m.

    A couple of years ago, I was buying some games when the kid in the queue next to me, maybe seven/eight asked for Dead Rising 2. Flabbergasted that he got it, I asked the cashier about it. He told me that because his dad was with him, legally they had nothing to stop them from selling it to him and that it was a broken system. So it all comes down to enforceability. It's depressing really: buying cigarettes and alcohol for someone under the age limit is an offence, and I see no problem with making the same rules apply to video games. Frankly though, this is all irrelevant in a few more years when all games will be bought from the internet since all high street shops will be in administration, DRM means there will be no more used games, and all games will be smartphone-only...
  • Vincent Wolf - January 21, 2013 12:29 a.m.

    Videogames don't kill people. Guns do. How about they forbid selling guns in USA first? How's that for a solution? I don't honestly remember any recent killing sprees in europe tbh...
  • TombReaver - January 21, 2013 7:53 a.m.

    Anders Breivik. 2011 in Norway. Led to yet another discussion about violent video games. Far less than USA though. But at least there was some evidence of gaming in his past, unlike with The Dark Knight Rises shootings...
  • JarkayColt - January 20, 2013 4:37 a.m.

    This brings up some good points. To go on a slight tangent, the thing I just hate most is this term "violence" being thrown around. What really does constitute "violence"? I'm glad Looney Tunes got brought up. I used to watch it and Tom & Jerry a LOT when I was a kid, and in retrospect, they were fairly "violent", and I remember having feelings of tension or fear when watching them sometimes. But overall, they were just good clean fun. I also find it weird how, at least with the PEGI ratings, nearly EVERY SINGLE GAME on my shelf has the "Violence" label on it! Just looking at my PS3 games, aside from the blatantly obvious ones that are 15 or over, LittleBIGPlanet 1 & 2 are violent. Rayman Origins is violent. Ratchet and Clank is violent. Jak & Daxter is violent. ModNation Racers is violent. A bunch of games that are supposed to be enjoyed by people of most or all ages are dubbed "violent", just because they involve lighthearted fighting or touch upon death. I really don't think it matters how graphic the violence is; the effect is usually in how it's handled. But basically, what I'm trying to say is that it's impossible to avoid games that are 'violent' by definition, because they aren't restricted to the higher ratings and chances are kids are already playing them. Hell, I think even Pokémon has the 'violence' label. It's just a massive, massive waste of time. That's not to say I think kids should be playing CoD or Gears or whatever the hell else, just that the very definition of violence is substantially flawed. Got a problem with gore? Fine. But violence is NOT the issue.
  • winner2 - January 19, 2013 8:42 p.m.

    On your mark, get pissed, and they're bitching!
  • t_skwerl - January 19, 2013 2:29 p.m.

    Yes, we have been here before. Over zealous people looking for a scapegoat for someone who flipped his lid and killed a bunch of people. We already have a rating system for games. It doesn't stop children from playing them because parents don't care to get involved with what their kids are doing. "Sigh. What's the name? Okay. *writes it down, buys it without hardly looking at it*" "Is that the one you wanted?" "YEAH! THANKS!" Parent now has a babysitter until the next game arrives. It's old. It's tired. It's wrong.
  • SilentDark - January 19, 2013 7:23 a.m.

    Here in blighty we already have a law restructing the sale of games to minors. When the PEGI ratings were a guideline not a legally binding classification most shops refused to sell to people under the age anyway. However little timmy just got an older relative to buy the game for them so it has a rather easy workaround. Punish the parents who buy their kids anything they ask for, because a system like this won't change a thing.
  • Hobogonigal - January 19, 2013 12:56 a.m.

    Really there should be a law for both films and videogames that people under the age classification shouldn't be able to purchase that kind of content. I don't understand what the big deal is about, all I can understand is that people say that it would be unconstitutional and what not. Technically people in the US should be able to bear firearms however the majority of people now want to enforce stricter gun legislation. That is technically unconstitutional and 'takes away people's freedom', however it is a lot better of a solution than letting anyone be able to walk around possessing firearms. Same goes here, whilst this bill may take away some freedoms it is a lot better of a solution than allowing young children to be able to buy explicit films or videogames that are simply not made for their age bracket. So really, the bill doesn't miss the mark like the title of the article says. It just brings the USA in line with what Europe and Australia have already been doing for ages.
  • ZeeCaptain - January 18, 2013 9:53 p.m.

    It's not like this matters, the little kids will still get their M rated games, they'll still get into the R rated Movies, and they'll still lie on their age for just about every internet website they go on to.
  • CrashmanX - January 18, 2013 9:51 p.m.

    Do for M/AO related games what they do for Porn Mags. Cover them in a black wrapper with big bold print "CONTAINS ADULT CONTENT INCLUDING: XXX BLAH BLAH BLAH GUNS VIOLENCE SLUTS AND WHORES" Boom. Parents are going to read/pay attention to what's on the package and those who actually want the game and are legally capable of buying it still can. It also ought to force the industry to decrease on the amount of M related content in video games for fear of getting such rating and loosing sales. At least this is all in theory and assuming politicians aren't corrupted by the entertainment industry's pocket. So there's no hope for that.
  • Nocturne989 - January 19, 2013 8:07 a.m.

    So put a noticeable black mark on the product so that people know that they're buying an M rated game...don't we already do that? I wish that they would stop scapegoating the gaming community and video games in general and move on already. Media isn't responsible for the insane things that people are capable of, people are.
  • CrashmanX - January 22, 2013 12:57 p.m.

    Noticeable? Dude I hardly even see the ESRB mark unless it's a black box already. Even then you get so used to seeing it on everything you just look right past it.
  • ZeeCaptain - January 19, 2013 2:01 p.m.

    I rather like this idea, you would go to gamestop in a trench coat and purchase your game in a blacked out sleeve and then they would give you the game in a paper bag or a black plastic bag, then as you leave the store you look left and right and walk shady into the night.
  • Moondoggie1157 - January 19, 2013 4:17 p.m.

    Well hey, at least we can shop for games naked if we have trench coats... Is it really all that bad?
  • CrashmanX - January 22, 2013 12:58 p.m.

    Well Captain I didn't mean it QUITE like that but hey if that's your and Snipy's thing I ain't gonna judge.
  • punkduck2064 - January 18, 2013 9:10 p.m.

    The solution isn't legislation, it's education. if this guy were supporting a law to remove all religious texts from public libraries, and limit the sale of romance novels to only lonely house wives, he would be laughed out of office. The government can't make people better parents by passing laws that make it illegal to sell games to kids. This line of litigation can only lead to censorship.
  • Moondoggie1157 - January 19, 2013 1:59 a.m.

    Paranoid drama queen...
  • masterjoe123 - January 18, 2013 7:29 p.m.

    Can 9 year olds buy E10+ games under this law?

Showing 1-20 of 28 comments

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