Video games v. California heads to hearings

Governor Schwarzenegger-backed law regulating violent video games to face the Supreme Court

The sale of games to minors has always been a hot button issue. It was the whole reason that the ESRB, with its bevy of large rating labels, was created. Now, one state hopes to take things further by banning the sale of all "violent video games" to minors. The forces of creativity and lovers of the first amendment are fighting back with the most deadly weapons they have--their lawyers.

About the suit

The US Supreme Court will begin oral arguments on Tuesday to see if video games should be regulated by the government. The case, titled Arnold Schwarzenegger, Governor of California, et al., Petitioners v. Entertainment Merchants Association, et al, stems from a 2005 California law that bans the sale or rental of violent video games to minors. The suit made its way to the Supreme Court in May 2009, after being upheld by the United States Court of Appeals Ninth Circuit Court.

Defending the law is Zackery P. Morazzini, the states' Deputy Attorney General. His opponent is DC-based Jenner & Block LLP, representing the Entertainment Merchants Association.

Mr. Schwarzenegger stands in favor of similar laws instated in several states, including Louisiana and Rhode Island. Those laws could be in danger if the court deems the California law unconstitutional.

The law's opponents come from a diverse group of organizations, including American Booksellers Foundation for Free Expression, the Electronic Frontier Foundation, Comic Book Legal Defense Fund, Microsoft, the MPAA, Thomas Jefferson Center for Protection of Free Expression, and Reporters Committee for Freedom of the Press

There are two questions at the heart of this suit, according to the Questions Presented brief posted by the US Supreme Court:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

Current protections

The current system in place for protecting kids from violent content is a ratings organization known as the ESRB, or the Electronic Safety Ratings Board. The ESRB rates games for age appropriateness. The six rating scale ranges from "Early Childhood" to "Adults Only."

While the process is technically a voluntary one, it has become an economic necessity for console-based games, since stores like GameStop and Walmart will not sell unrated games in their stores. Currently, selling a game rated AO ("adults only") or M ("mature") to a minor is not illegal. Some questions about store compliance have been raised earlier this year.

These concerns, however, seem a bit alarmist when you realize that game sellers have a higher rate of compliance with M-rated games, then theaters do with R-rated movies. The study concluded that gaming stores had an 81% compliance rating. The study in question, which was done by the The Parents Television Council, found numbers vastly differ from studies conducted by the Federal Trade Commission, or FTC.

The real issues

This suit is only one part of a larger debate about parents' level of responsibility in the media their children consume. Some parents will tell you how hard it is to keep their children "safe" from violent media, like games. They are also willing to tell you about the effects that those games have on kids.

But really, the solution is simple. If you do not want your child to be exposed to these games, don't buy the games or the consoles. As Larry Ley, the director and coordinator of research for the Center for Successful Parenting, told MSNBC, “Let’s quit using various Xboxes as babysitters instead of doing healthful activities.”

Complaints that the ESRB's ratings system does not work for parents when kids buy games by themselves highlights the heart of the issue. If a parent wants control, they should be there to make that judgment call themselves. If a parent does not care enough to show up and read the box, then they have already made their position known.

The irony of the law

There is one great irony of this situation, and it comes from the man backing this law, Arnold Schwarzenegger. For those of you who are not familiar with his work, Mr. Schwarzenegger's claim to fame comes from films like The Terminator and Conan the Barbarian. The Terminator was rated R by the MPAA, as was Conan the Barbarian. 

To give you some context, lets look at the death rate for the films in The Terminator series. In the first Terminator film, 26 people died. In the second movie, eight people died. In the third film, the death toll is technically 3,000,000,034. So, really the man has no problem with violence, as long as he is making a profit off of it. The Terminator movie, by the way, was also made into a violent video games. While some may arge that he has to support the law, but he has arged against other laws, such as Proposition 23, which would have suspended the clean air laws in the state.

The bottom line is that M-rated games aren't going anywhere anytime soon. They are simply too profitable for the industry to ignore. Games like Halo: Reach, which raked in $200 million on its opening day in September despite being sold on only one gaming console, are surefire hits because of the violence they feature. For those of you not familiar with the Halo series, these games are in the category known as First Person Shooter, which features gun-and-projectile, weapon-based combat, and little to no plot in most cases.

Kids are going to get thier hands on M-rated games anyway. A report by The National Institute on Media and the Family, a conservative media watchdog group, in its 13th annual video game report card, showed that parents do buy violent games for their kids. So, in the end all this law may do, is to make the lives of some parents harder, and offer less flexability for game makers who want to market to teen players.

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