VIDEO GAME INDUSTRY TAKES AIM AT CENSORSHIP
Lawrence G. Walters, Esq.
www.GameAttorneys.com
Over the last several years, state and local governments have been firing shots across the bow of the Interactive Video Game Industry, seeking to constrain increasingly graphic and violent content found in current interactive games. The federal government has now jumped into the fray, with proposed legislation seeking to punish the marketing of violent media to children. With the cyber-world of Internet role-playing games about to explode, increasing pressure will be brought to bear by morality groups chanting battle cries of "protect the children" as their perennial justification for censorship of controversial, violent or erotic expression. Attorney General John Ashcroft, in a recent speech to the American Society of Newspaper Editors, blamed graphic video games for violent behavior in children, and even claimed that he "might be willing to trade First Amendment rights to improve the culture."(1) Violent outbreaks at schools have been linked to video games which allegedly train children to accurately shoot firearms, according to Lt. Col. Dave Grossman\'s book, Stop Training our Kids to Kill. Although numerous experts have since refuted this myth, graphic video games continue to be a popular scapegoat in the cultural war against modern media. With a recent Indiana federal court victory by the American Amusement Machine Association, the stage is set for a Battle Royale\' between the government and the gamers in the Digital Age. Historical Game Censorship Efforts During the last decade, as advances in technology allowed for more graphic depiction of violence and eroticism, parents, lawmakers and community leaders began to take notice of the games children play. No longer did the kids whittle away hours chasing cartoon ghosts with happy faces - ala Packman - now they were hunting down zombies with automatic weapons. In response, murmurings of possible content restrictions and outright government censorship began to spread through the Video Game Industry. Morality groups were calling for action, and something needed to be done about this convenient political target. ESRB Rating System The censorship efforts started a few years ago with the imposition of a voluntary rating system that required all video games to include a "rating" label. The Industry agreed to a system created by the Entertainment Software Rating Board (ESRB), with ratings ranging from "E" ("Everyone", meaning that the game is suitable for children and adults) to "M" ("Mature", recommending that the game be restricted to those over 17 years of age) to "AO" ("Adults Only", identifying content suitable only for adults over the age of 18). Of course, being what they are, many children find ways of circumventing restrictions placed upon adult-rated games. Another problem with this voluntary rating system is that it does not alert the consumer as to what category of the game\'s content triggered the adult rating. However, ratings should not be jettisoned out of hand. During the 1960s, the Motion Picture Association\'s creation of its now-venerable ratings system is believed by many to have sidetracked Congressional action imposing federal regulations that, to be sure, would have had a greater censorial effect. But the imposition of a ratings system for video games was just the start. More Censorship Attempts Given the apparent ineffectiveness of the voluntary restrictions, legislators at the state and local level have tried to contrive "quick fix" solutions to the perceived problem of exposure of children to graphically violent video games. One member of Congress cried out that these games "are helping to create a culture of violence that is increasingly enveloping our children."(2) And, certainly not surprisingly, restrictive bills also began surfacing at the state government level. For example, Pennsylvania Senator Jack Wagner introduced legislation that would make it more difficult for minors to obtain access to graphically violent video games.(3) The Bill created a criminal offense of providing violent video games to minors.(4)Senator Wagner denied that the Bill constituted censorship, urging Congress to pass a similar law nationwide.(5) Next, the Federal Trade Commission surfaced with a lengthy report essentially blaming the entertainment industry for the downfall of society. The report - "Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries," - was launched to answer two loaded questions about entertainment in the Digital Age:
  1. Do the industries promote products they themselves acknowledge warrant parental caution in venues where children make up a substantial percentage of the audience?
  2. Are these advertisements intended to attract children and teenagers?(6)
You might not be surprised that the report answered both questions with a resounding "yes".(7) While the report avoids the label of censorship by calling for enhanced self-regulatory efforts on behalf of the entertainment industries, Commission Chairman Robert Pitofsky promised that the Commission would consider legal action against entertainment companies over their marketing practices.(8) Republicans and Democrats alike have vowed to seek legislation allowing the federal government to sanction the entertainment industry, should it not "come around" in the short term, and clean up its act.(9) Certainly such threats create the well-known "chilling effect" on protected speech by inducing artists and publishers to censor themselves lest they risk becoming a defendant in some unspecified "legal action." The recent rash of school shootings has provided endless fodder for the politicians looking for justification for government censorship of video games. Attorney General John Ashcroft has put the blame for these unfortunate incidents squarely on violent video games. The Industry has become duly concerned, and is starting to fight back. A First Amendment Victory from the Midwest Last year, the City of Indianapolis, Indiana, resolved that the way to combat the evils of violent and erotic video games was an ordinance limiting the access of minors to video games that depict violence or sex. The ordinance forbids any operator of five or more video game machines in one place to allow an unaccompanied minor to use an "amusement machine" that is "harmful to minors." The term "harmful to minors" has been used in legislation protecting minors from sexually-oriented material for decades, but had not been extended to violent media until this law. According to the Indianapolis ordinance, an amusement machine is harmful to minors if it appeals to minors\' morbid interest in violence or prurient interest in sex, is patently offensive to the prevailing standards in the adult community as a whole with respect to what is suitable material for minors and lacks serious literary, artistic, political or scientific value as a whole for a minor. The games must also contain either "graphic violence" or "strong sexual content" in order to be declared "harmful to minors." Operators of video arcades were required to put up warning signs, separate the games by partitions and conceal the machines from open view. The ordinance was supported by two allegedly empirical studies by psychologists which found that playing a violent video game tends to make young people more aggressive in their attitudes and behavior, along with a general finding in literature that violence in the media engenders aggressive feelings. The City ostensibly was concerned with the welfare of both the game players, and their potential victims. Before the ordinance even went into effect, video game manufacturers, their trade association and various Free Speech organizations launched a federal court challenge to it on First Amendment grounds.(10) Initially, the trial court tentatively upheld the ordinance by refusing to enter a preliminary injunction prohibiting enforcement. But in a wonderful victory for the First Amendment, the Seventh Circuit Court of Appeals reversed the trial court, and ordered the ordinance enjoined.(11) It concluded that the graphic video games at issue were not obscene, but, rather, fully protected by the First Amendment. The Court rejected the notion that two empirical studies claiming a link between violence and video games established a compelling interest to justify the restriction on First Amendment rights. The court compared the actions of the City in prohibiting access to violent video games to forbidding children from reading The Divine Comedy, War and Peace or Dracula. "Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low," the court noted.(12) One of the violent video games that the City believed would violate the ordinance was "The House of the Dead." The court reviewed, in depth, the various aspects of this game including the "seemingly unending succession of hideous axe-wielding zombies" and the player\'s duties of protecting others from "renewed assaults by the zombies" and "reloading his gun."(13) It sounds like the author of the court\'s opinion actually played the game. But these details were included for the reason that concepts such as self-defense, protection of others, and fear of the "undead" and fighting against overwhelming odds are age-old themes in literature. The inclusions of those observations made it easier for the court to conclude that the games enjoyed First Amendment protection, and therefore were "not lightly to be suppressed."(14) The court also noted that the characters in modern video games are cartoon characters - not real people. There is nothing morbid about a children\'s interest in playing "The House of the Dead" or "Ultimate Mortal Kombat 3," and no child should be dragged off to a psychologist just because he enjoys playing these games.(15) This court decision is of vital importance to the Interactive Software Industry since it is one of the very first cases to interpret the protections to be afforded this new breed of video game. The City made all of the arguments typically advanced to justify municipal censorship, and the Court of Appeals rejected them all. The City claimed that children could still play the games with an adult, without violating the ordinance. However, the court correctly noted that many children "would be deterred from playing the games if they had to be accompanied by mom."(16) Also, many parents are simply too busy to accompany their children to a game room.(17) Current Censorship Efforts Surely this decision will be heralded by the Video Game Industry as a significant victory for its interests and for the First Amendment. But the case has not dissuaded the censors from pushing ahead with their agenda. Shortly after the decision was rendered, the family of a slain Columbine teacher filed suit against 25 Media companies, most of which manufacture or distribute video games. The suit seeks $5 billion dollars in damages, and court-imposed regulation of the $20 billion dollar video game industry.(18) On the heels of this high-profile lawsuit is a Bill introduced at the federal level seeking to punish the entertainment industry for marketing products, with violent or sexually explicit content, to children. On April 25, 2001, Sen. Joseph Lieberman, D-Conn., joined by Hillary Clinton of New York, and Herb Kohl of Wisconsin, filed this proposed legislation to punish media companies who market products to children that are intended for adults. The Motion Picture Association of America has called the proposal an attack on freedom of speech and unconstitutional.(19) Senator Lieberman responded by claiming, "that\'s not censorship. That\'s common sense."(20) A big concern with the proposed Bill is that it could discourage the voluntary ratings system for movies, music and video games, since placing an adult label on a media product could lead to liability under the proposed law. The Future; An Industry on Guard Groups calling for censorship of mature-rated video games are organized and well funded. Moreover, their members vote! Organizations such as Morality in Media and the Lion & Lamb Project, are actively calling for stricter governmental regulation of violent and erotic media. Their members routinely testify before Congress and hold workshops designed to spread their message of censorship. The Video Game Industry is now facing many of the same efforts and tactics formerly reserved for sexually oriented media. This Industry can expect attacks involving the use of obscenity and harmful materials laws at the state and federal level, along with the application of restrictive licensing and zoning laws against the arcades and retail stores, at the local level. Adult entertainment businesses have been fighting these types of censorship efforts for years, with varying levels of success. The combination of a new conservative administration, school shootings and the recent explosion of a politically expendable industry creates a highly charged atmosphere that likely will spark First Amendment battles across the country. The courts and legislators will then be forced to debate the proper level of constitutional protection to be given to make-believe violence on our computer screens and television sets. Amidst this robust debate, we should not loose sight of the fact that kids will be kids, and often need an outlet for their angst. Cartoon violence has been with us for many years, and no researcher has successfully established a causal link between graphic video games and real-life violence. In the words of Judge Posner in the Indianapolis case, "common sense says that the City\'s claim of harm to its citizens from these games is implausible, at best wildly speculative."(21) Yet well-organized censorship groups will continue to ask the government to do the parent\'s job, by restricting access to protected speech in the name of protecting children. The Industry can hope that those requests will fall on deaf ears, as they should in a free society. But they won\'t. Just ask Hillary and Joe! Lawrence Walters, Esq., is a partner with the law firm Walters Law Group. The firm represents media clients nationwide. Mr. Walters represents the Free Speech interests of interactive software developers and online game companies. Nothing in this article constitutes specific legal advice.
  1. "Ashcroft Again Drills Violent Games, Media," ieMagazine.com (April 5, 2001).(1)
  2. A.Song, "Futile Attempts at Video Game Censorship," Teenvoice.com [quoting Gamepro Magazine, (February 1998)].(2)
  3. J. Ocampo, "Senator Introduces Video Game Bill," CNET: Gamecenter (April 28, 1999).(3)
  4. Id.(4)
  5. Id.(5)
  6. "Short Take: FTC blames the Usual Suspects," About.com (September 13, 2000).(6)
  7. Id.(7)
  8. Id.(8)
  9. Id.(9)
  10. American Amusement Machine Ass\'n v. Kendrick, 115 F.Supp.2d 943 (S.D. IN 2000)(10)
  11. American Amusement Machine Ass\'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001)(11)
  12. Id at 5.(12)
  13. Id.(13)
  14. Id at 6.(14)
  15. Id at 7.(15)
  16. Id.(16)
  17. Id.(17)
  18. "25 Media Companies Named In Columbine Lawsuit," Blue\'sNews.com (April 24, 2001)(18)
  19. Bill Seeks to End Marketing Adult Music To Children, CNN.com (April 26, 2001).(19)
  20. Id.(20)
  21. Kendrick at 8.(21)