The Law on Games

The Solution: Oklahoma and Louisiana

In Oklahoma and Louisiana, the message is clear: parents are not able to do it alone. While many states have pending laws to regulate games, Oklahoma and Louisiana have become high-profile battlegrounds on the subject. In both states, the legislation is based upon Miller vs. California, the 1973 Supreme Court decision in which a three-pronged test for sexually obscene material was defined. The three prongs specify that obscene materials bear the following characteristics:

1. The average person, applying contemporary community standards, will find, taken as a whole, that they appeal to the prurient interest;

2. They depict or describe, in a patently offensive way, sexual conduct specifically defined by applicable state law;

3. And that, taken as a whole, they lack serious literary, artistic, political, or scientific value.

Or, as one justice famously put it: I don't know what it is, but I know it when I see it.

In June, Oklahoma Governor Brad Henry signed a bill proposed by Rep Fred Morgan (R), based strongly on the wording of Miller. Legislation which uses Miller's language to keep sexually oriented material away from minors has become widely accepted, but the Oklahoma bill adds violent games to the mix. Specifically, it forbids "any description, exhibition, presentation or representation, in whatever form, of inappropriate violence." (Read the full text of the bill.)

Later lines of the bill forbid specific instances of violence, such as that "used to shock or stimulate" and that in which characters "resort to violence freely." While seeming specific, these definitions remain quite vague; replace "Grand Theft Auto," which would be prohibited to minors by the bill, with the film "Die Hard," which would not. On June 24th, the ESA filed a lawsuit against the law on constitutional grounds; that action is pending.

In Lousiana, the situation is more complex. Two bills have been signed by Governor Kathleen Blanco. One, supported by Senator James David Cain, criminalizes the sale of sexually explicit games to minors, and relies exclusively on Miller vs. California. The second, drafted in part by Jack Thompson and supported by Rep. Roy Burrell, uses similar language to criminalize games with violent content in much the same way as the Oklahoma law.

Fred Morgan Roy Burrell

Senator Cain's bill, riding directly on widely accepted sexual obscenity statues, found immediate acceptance, both in Lousiana and with the games industry as a whole. Rep Burrell's bill, on the other hand, was immediately challenged as unconstitutional. While it relies on the language of Miller to define unacceptable violent content, there is a crucial difference in language. The first prong, rather than forbidding games which "appeal to the prurient interest," targets those which "appeal to a minor's morbid interest in violence."

As in Oklahoma, many have found the definition unacceptably vague. A great deal of entertainment certainly appeals to a minor's interest in violence, but there is no legally acceptable definition of the point at which that interest becomes morbid.

The most interesting aspect of the two Louisiana bills is that they were originally one. Carla Roberts, an attorney for Senator Cain who in part drafted his bill, explained that Louisiana legislators were aware that the language which eventually comprised Rep Burrell's bill would never pass legal muster. Rather than rethinking the legislation entirely, the original proposal was split into two, with Rep Burrell's bill -- the most likely to be challenged -- put forth first.

That strategy makes sound political sense. By raising a legal storm with the bill vaguely worded against violence, Senator Cain's Miller-derived companion passed with flying colors.

Video Game Laws Across North America >>

Video Game Laws Across North America

Roberts' statement casts the anti-violence laws in a poor light, especially when looking at what took place in Illinois last year. In February of 2005, the magazine Government Technology published an article by Illinois Governor Rod Blagojevich entitled "Video Game Law Would Help Us Fight For Our Kids." The opening sentences are dramatic:

A gang member drives through a city, shooting police officers, stealing cars, soliciting prostitutes, and then having sex with them. He's awarded extra points for beating them up, urinating on them, and throwing them from his car.

Presumably he's talking about one of the Grand Theft Auto releases, though urinating isn't a factor in the gameplay, killing police is strongly discouraged, and "extra points" do not apply. The Governor never named the game, but did promise to enact legislation to keep it out of the hands of children.

In June, the Illinois House and Senate passed The Violent Video Games Law and the Sexually Explicit Video Games Law (SEVGL), criminalizing the sale of violent and sexually explicit games to minors. Governor Blagojevich quickly signed it into law. Among the text of the bill, one line stands out. "The State has a compelling interest in assisting parents in protecting their minor children from violent video games." (Read the full text of the bill here.)

Specific language in the bill addressed the industry's self-regulation efforts: "While the video game industry has adopted its own voluntary standards describing which games are appropriate for minors, those standards are not adequately enforced."

As would later happen in Oklahoma and Louisiana, the law was quickly challenged by the ESA and retail associations. In December, US District Court Judge Matthew F. Kennelly declared the law unconstitutional.

James David Cain Call of Duty

Many other states, and even two Canadian provinces, have either proposed, passed, or had gaming legislation struck down. In nearly every case, the opposition mounted against gaming law is organized on constitutional grounds, as in Oklahoma and Louisiana.

Laws passed in California (Sept. 2004) and Washington (April 2005) are relatively benign, calling only for the rating system to be posted prominently at retail. In Canada, Ontario has allowed the Ontario Film Review Board to adopt ESRB ratings and criminalize the sale of M and AO games to those under 18. Manitoba mandates that ESRB ratings much be adhered to in a similar manner.

But California passed a much tougher law in December of 2005, seeking to regulate violent game content in much the same way as Louisiana. As well as a Miller-based three prong test, the bill allows violent games to be defined as those which "Enable the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the Victim."

Critics were quick to point out the irony of Governor Schwarzenegger, whose films embody many qualities specified in the passed draft, signing the bill into law. The ESA filed suit, and in December US District Court Judge Ronald Whyte issued an injunction preventing the law from taking effect, saying that "games are protected by the First Amendment."

Amid the many documented difficulties with legislation restricting game sales, one inconsistency remains. No law yet drafted would protect children from the array of violent, sexual, and racist web games littering the corners of the Internet. Games such as Border Patrol (a flash game in which players snipe illegal Mexican immigrants) have been featured in panels and hearings to illustrate the moral depth to which games might sink. But bills such as those passed in Louisiana and Okalahoma have no power over these freely distributed pieces of code. Without a retail presence, these games slip through.

In the Long Run, a Federal Crime? >>

In the Long Run, a Federal Crime?

The most significant legislative proposal yet is one championed by US Senators Clinton and Lieberman, called the Family Entertainment Protection Act (FEPA). If passed, this national bill would federally adopt the ESRB rating system and prohibit the sales of M, AO and Rating Pending titles to those under 17. Penalties would include fines ($1,000 and $5,000) and community service.

More crucially, FEPA would establish an independent review to guard against "ratings creep." The review would evaluate ESRB ratings over time in an attempt to ensure they were consistently applied. Finally, FEPA would provide authority for the Federal Trade Commission to evaluate games containing "embedded content" inconsistent with the published rating. In other words, Grand Theft Auto: San Andreas and "Hot Coffee." Penalties for embedded, inconsistent code would fall under the authority to regulate "deceptive acts or practices in or affecting commerce" as specified in the Federal Trade Commission Act.

As it turns out, Grand Theft Auto and publishers Rockstar and Take-Two got off easy this week when the FTC allowed what amounts to a slap on the wrist to go forward; Take-Two will not be fined for the "Hot Coffee" embedded code. FEPA would make such an outcome unlikely in the future.

Editors of newspapers and the games press claim that all efforts seen thus far amount to little more than posturing. Newspaper editorials in Louisiana and Oregon have castigated legislation efforts as futile and self-glorifying. In a Shreveport Times op-ed, psychiatrist Dr. Jerald Block called video game laws "sheer lunacy." They cite data suggesting the negative impact of violent media is countered by figures proclaiming a significant drop in youth crime since the mid-'90s.

Mark Shurtleff Border Patrol

Through blogs and interviews, the games industry has also spoken out against legislation. The excellent GamePolitics Web site maintains a running account of each state's efforts, and Ted Price, CEO of Insomniac Games (Ratchet and Clank) has filed affidavits in Louisiana and Minnesota in support of the industry.

Seeking to avoid new laws, editors and some politicians have fallen back on a more practical line of advice: parents must be more attentive to their children's' entertainment. Mark Shurtleff, Attorney General for the state of Utah, agrees. He's begun a campaign with the ESRB to promote parental awareness and involvement, primarily though a series of televised PSAs.

When asked if legislation is simply an easy answer for lawmakers eager to respond positively to parent concerns, Shurtleff was succinct. "Legislation is a popular thing to do, and an easy answer, even if the legislation is bound to fail under judicial scrutiny. We can tell them we'll be in litigation for three years, and they say they don't care."

Furthermore, amid every discussion of video game legislation to date, there's an elephant in the room: enforcement. That's been a sticking point of every similar movement to regulate entertainment such as comic books and movies. If the money spent in enacting legislation is to be spent well, enforcement is key. What shape would enforcement take? To date, no viable solutions have been proposed.

When queried on that end of the law, AG Shurtleff replied, "Enforcement becomes very difficult; we currently spend large amounts of money trying to enforce laws controlling youth access to alcohol, and to add another layer to those efforts and that spending would be very complicated."