Right to Regulate

In 2005, the California State Legislature passed a bill to restrict the sale and rental to minors of ultra-violent video games—those containing “killing, maiming, dismembering, or sexually assaulting an image of a human being” in such an extreme fashion as to appeal to “a deviant or morbid interest”—imposing $1000 fines for each violation. The legislature made its decision in part based upon contentious social-scientific findings linking these video games to later violent acts. The law was immediately challenged by the entertainment industry, and has made its way to the Supreme Court, where oral arguments were heard last week. The case has generated controversy: Entities from Microsoft to the makers of “World of Warcraft” have expressed opposition to the law, while the state of California, including Governor Arnold Schwarzenegger, has vigorously defended it.

We believe that on the matter of ultra-violent video games, a state legislature is entitled to hear expert testimony and ultimately render policy on the basis of analysis of that evidence. Some states may find insufficient basis for regulation, while others will surely decide to impose such restrictions, as California has. We support their right to make this important decision, as democratically empowered by their constituents. The people of any state must be allowed to protect their children from exposure to potentially injurious material.

To condemn this as censorship, as the entertainment industry has done, is to misconstrue the situation. Under the California law, the state would neither be regulating the content of video games, nor who could play them. Rather, the government would merely be creating cautionary barriers to acquisition of these games, in light of their perverse and potentially harmful content. Parents could still buy these games for their children, and there would be no restrictions on what sort of games producers may create. Similar barriers—long upheld by the courts—already exist with reference to movies and pornography. Why should video games, simply by dint of being a relatively newer media, be exempt from such scrutiny? Indeed, it is past time that the courts ruled on this new medium, and its relationship to protected speech must be defined.

That said, we find this specific California statute impractical and wasteful in that it obligates government to assess the content of every game on the market. Rather, we suggest that state regulators make use of market incentives to affect the same change, imposing steep fines for retailers who provide Mature rate or Adults Only rated games to minors. Some lawmakers have expressed lack of confidence in the industry’s own Entertainment Software Rating Board system and willingness to curtail profitable trafficking in obscene material to minors; thus, fines and increased  enforcement are both warranted.

As Chief Justice John Roberts put it, “We do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel…being merciless and decapitating them, shooting people in the leg so they fall down…We protect children from that.” We support the right of the American people to shield its most vulnerable and hope the Supreme Court affirms that right in its ruling in June.