Violent Video Games: Can/Should We Regulate Them?

San Angelo man, Mark Williams, who is the Chief Juvenile Probation Officer for Tom Green County, Texas, recently warned us of the influence violent video games have on our fragile youth. Williams opines that if you are a young person playing Mortal Kombat, Call of Duty, Grand Theft Auto, or the Postal series, essentially you are more likely to end up in a juvenile detention facility than young people who are not. Today’s discussion involves violence in video games, the constitutional and practical aspects of regulating such content from a legal standpoint, and the moral obligations of parents.

A Brief Summary of Mr. Williams’ Arguments

Let’s begin by affording some credit to a man who has served his community for a very long time. The Chief Juvenile Probation Officer (hereinafter, “CJPO”) is a court-appointed position, which Mr. Williams has held for the past 28 years. In his tenured capacity as CJPO, there should be little doubt that Williams has seen some of the most troubled young men and women in Tom Green County. Indeed, Williams is certainly a valid authority on the behavior of juvenile criminals–he’s observed them for almost three decades.

On March 21, 2014, Mr. Williams shared his insight with the San Angelo Rotary Club regarding the troubled youth he routinely interacts with. According to Williams, juvenile offenders wind up with him and his team due to issues of “self-confidence” and because “something or somebody’s negatively influenced them”.

Anyone else thinking, “Of course something or somebody has negatively influenced them if they wound up in a juvenile detention facility”?

Williams notes that the kids are easily influenced by negative aspects of our culture because, “they need to feel better about themselves”. From the many negative aspects of our culture he might choose (i.e., drugs, alcoholism, family violence, etc.), the two main “negative aspects” of our culture that concerned Williams were “rap music” and “video games”.

Ok. Let’s break it down.

  1. Rap Music – Williams stated, “Rap music is all about hate, violence, total disrespect for women, sexual promiscuity… We just let this happen. We idolize these people [rap musicians]. But these kids I see, they really idolize these people… They listen to that stuff and there’s no doubt in my mind that it has an influence on their lives”.

    One of my functions as an entertainment lawyer is music, so you might be thinking we could touch on this–and we could. However, we won’t and it’s because of something else Williams said, “Rap music used to be the subject of my soapbox speech until I found out what’s in today’s video games… In my position I think I know what’s happening in the minds of our youth, and then I get exposed to more things reaching them [violent/sexual oriented video games] and it just blows me away”. Because Mr. Williams isn’t as concerned with rap music as he is with video games, let’s not be either.

  2. Video Games – Williams equates violence and sex in video games with “gateway drugs”. You see, “As the body becomes physiologically accustomed to a little lift from a gateway drug, the person graduates to harder drugs… I see video games as something where once the thrill of playing a video game is gone, what’s the next step?” The implication is that the next step is real life. Williams then goes on to provide us with four examples of popular games to illustrate his point: Mortal Kombat, Call of Duty, Postal, and Grand Theft Auto.

    This is the crux of his argument, and the one that this article is in response to.

The “Science”: Studies, Reports, and the Correlation of Games and Behavior

Mr. Williams acknowledged numerous studies that tend to dispel the notion of video game violence translating into violence in real life. In response to skeptics who would cite such studies, Williams said, “There’s a juvenile case headed through our local courts right now. The defense lawyer’s argument is based upon the fact that the kid was unduly influenced by violent video games”.

There’s a lot of “science” on this topic. The reason I’m putting the word “science” in quotations is that you can go out and find empirical data that goes whichever way you want in order to support your argument.

For example, if I wanted to argue that violent video games do lead to more aggressive tendencies in children who play them, I may cite the 2008 study Grand Theft Childhood: The Surprising Truth About Violent Video Games, which reported that 60% of middle school boys who played at least one Mature-rated game hit or beat up someone, compared to 39% of boys that did not play Mature-rated games. Or, if I wanted to play on your emotions following a school shooting tragedy, I could ask you if you knew about the FBI report from 2000 that lists playing violent video games as a behavior associated with school shootings.

Circumspectly, the same is true if I wanted to argue that violent video games do not lead to more aggressive tendencies in children who play them. A recent study published in the Journal of Youth and Adolescence found that playing violent video games (Mortal Kombat, Halo, and Grand Theft Auto) actually had a very slight calming effect on youths with attention deficit symptoms — and helped to reduce aggressive and bullying behavior. The researchers found “no association between the playing of violent video games and subsequent increased delinquent criminality or bullying in children with either clinically elevated depressive or attention deficit symptoms”. Isn’t it also true that federal crime statistics suggest that serious violent crimes among youths have decreased since 1996, even as video game sales have soared?

The most accurate reports are likely those that acknowledge we are not able to determine whether or not video games can be blamed for violent tendencies. Since video games are in almost every child’s home, and because every child’s home environment is different than the next, we ought to remember that there are a plethora of other factors that go into figuring our a child’s behavior. It’s easy to point the finger at one particular cause, but it takes a village to raise a child.

The point I’m making is that there’s a lot of studies that support either argument, and none of them can say with absolute certainty that violent video games do or do not cause violent behavior in the kids who play them. Hence, let’s not argue the “science”.

The ESRB and Current Regulation of Violence, Sex, etc. in Video Game Content

Mr. Williams claims we may be shocked to find out what’s in some of these games. That may be true if parents are blatantly ignoring warning labels already placed on games to alert parents and other consumers as to the content.

The Entertainment Software Rating Board (“ESRB”) is the non-profit, self-regulatory body that assigns ratings for video games and apps so parents can make informed choices. The ratings placed on games and apps look like this:

ratingsymbol_ecratingsymbol_eratingsymbol_e10ratingsymbol_tratingsymbol_mratingsymbol_aoratingsymbol_rp

Look familiar? They should look familiar if you’re a video game consumer yourself, or if you have children you purchase or rent games for. Although the ESRB’s method of rating games is technically a “voluntary” system for game publishers and advertisers, practically all titles released in the United States and Canada come with an ESRB rating. This is because many U.S. retailers, including most major chains, have policies to only stock or sell games that carry an ESRB rating, and console manufacturers require games that are published on their systems in the U.S. and Canada to be rated by the ESRB. Moreover, once you’re contractually bound with the ESRB’s system, then they have the legal authority to impose sanctions, fines, etc. should you not be in compliance with the way the system works (i.e., if you do not fully disclose the contents of a game in order to avoid a rating of “M” or “AO”).

The ESRB also prescribes store policies for retailers to help ensure they’re not selling or renting inappropriate games to children. Of particular importance to concerned parents should be that the policies spell out that retailers “Not sell or rent M (Mature) rated computer or video games to customers under the age of 17, unless accompanied by a parent or guardian”. Similarly, those retailers also shall “Not sell or rent AO (Adult Only) rated computer or video games to customers under the age of 18”.

So, we can see that we do have a system in place to prevent children from acquiring games with inappropriate content. If your underage child went out and attempted to buy any of the games that concern Mr. Williams, all of which do have an ESRB rating of “M” (Mature), they’d likely be carded in the same way they would if they attempted to purchase cigarettes. Those retailers who disobey their own contractual obligations with the ESRB could be facing serious monetary sanctions.

The Constitutional Concern: Video Games Qualify for First Amendment Protection

In the 2011 case Brown v. Entertainment Merchants Association, the Supreme Court of the United States had a chance to take a look at the very issue we’re discussing–further regulation by a state on violent video games.

In 2005, the California legislature passed a law which made it illegal to sell violent (and “violent” was defined in the text of the law) video games to anyone under the age of 18. More, if the game in question fit the California standard for “violent”, the law required that the game come with a warning label reading “18”. If a store chose not to follow the state’s prerogative, the store owner (but not the sales clerk) could be liable for up to $1,000 per violation. California stated that it had a compelling government interest in: (1) protecting children from harm; and, (2) helping concerned parents control their children.

In response to the California law, the Entertainment Merchants Association (the “EMA”), representing the video game and software industries, brought a pre-enforcement challenge in Federal District Court. The EMA and others argued that this law violated the First Amendment of the U.S. Constitution. The District Court agreed with the EMA and permanently enjoined California from enforcing the law. The appeals process went on until finally the case wound up in the Supreme Court, and the Supreme Court affirmed the judgment of the courts below, holding that video games were entitled to First Amendment protection.

Constitutional Law is bit of a tricky subject, so I’ll try to summarize how the court made its decision without getting too into the legal jargon. First, the Supreme Court recognized that video games, though a new and different form of medium, communicate ideas just like a movie, television show, book, or song. The state did not have laws regulating those forms of speech like it did with video games, and moreover the general rule is that you can’t suppress ideas. Second, although the Supreme Court agreed that California’s interests in protecting children from harm and assisting parents to control their children were good reasons to pass the law, you have to overcome other obstacles if you’re going to pass laws that regulate speech. In other words, your law must be “narrowly tailored” to serve your reason for passing it. The law wasn’t narrowly tailored because children were exposed to violent ideas elsewhere (i.e., Saturday morning cartoons, or even Grimm’s Fairy Tales) and California made no efforts to suppress those forms of speech, only video games. Finally, the law was overbroad because the Court also took into consideration that some parents may not care what sort of content their children are being exposed to, yet nonetheless those parents would be affected by the law.

The practical thing to take away from the Supreme Court decision is that video games are a medium that communicate ideas, just like other media that do so. It doesn’t matter that people can “interact” with video games. This simply means video games are a new form of expression deserving of no less protection for the ideas they express. Indeed, the Supreme Court even alludes to First Amendment protection for those forms of communication we have yet to imagine.

Closing Thoughts: What We’ve Learned and Morality

Here’s what we’ve learned so far:

  1. There’s a guy named Mark Williams who is telling the folks of Tom Green County that violent video games are to blame for the criminal behavior of juveniles. He argues that we’d be surprised what we find in these video games if we only knew;
  2. There’s no science out there that proves whether or not he’s correct/incorrect, but we do know that no one can tell us that we’ve figured out that violent video games = violent children;
  3. Thanks to the ESRB, we do have a ratings system out there for video games to let parents know what’s in them prior to renting or purchasing them for their children (or even prevent the child from renting or purchasing the game without the approval of the parent). With minimal effort by observant and concerned parents, the Williams issue seems moot or at least entirely avoidable; and,
  4. As the Supreme Court has let us know, you will fail if you take up a call to arms for state-level video game regulation, unless you narrowly tailor a law that restricts all similar violent speech. Consider how oppressive a law would be that regulated not only video games, but also the other ways children come in contact with ideas about violence.

The question now is, “Where does that leave us with respect to Mr. Williams’ concerns?”

I think it’s fairly simple: parents can make informed decisions using the safeguards we already have in place through the ESRB. If you’re moved by Williams’ speech, then take some precautions. For example, you need not hand your child a credit card and let them Redbox some game if you have a conceivable expectation that it will be something you disapprove of. However, the solution to the problem posed by Mr. Williams is as straightforward as bothering to care before you make a purchase or rental for your child. There’s really not an opportunity to be surprised that your child has a particular violent game, given that certain games require parental consent for the child to acquire those games in the first place.

The morality issue is something that falls on the parents. If you agree with Mr. Williams that violent games are “gateway drugs” for children, then it’s on you, as a parent, to do something. Thankfully, the ESRB is there to lend you a helping hand.

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