Child's Play?

Politicians continue to fight to restrict kids�� access to Mature games, but they haven��t won a case yet. On June 3 the Eighth U.S. Court of Appeals again found that games are protected under the First Amendment. Lawmakers don��t like the fact that kids can buy games with violent or sexual content, but the court found no compelling reason to regulate the sale of Mature games at retail.

Games are in good company since movies, music, and videos aren��t regulated either. There is no law saying a kid can��t go into an R-rated movie. Theater owners voluntarily adopted a policy not to allow children under 17 to view those films. According the FTC, kids can get into an R-rated movie in about half of the theaters they visit.

But the FTC��s numbers for minors who attempt to buy M-rated games is closer to 80 percent. Some retailers have been unwilling to even adopt a policy to prevent the sale of Mature games to kids, let alone try to enforce it.

Which has caught the attention of politicians like Mary Lou Dickerson of Washington. In May Washington State passed a law sponsored by Dickerson that would impose fines on retailers for selling violent videogames to minors. If it survives the inevitable constitutional challenge, Washington will become the first state to make it a crime to sell or rent violent videogames to kids under the age of 17. Violators from store owners to clerks could be fined up to $500 per incident.

��I believe violent videogames do harm children,�� says Dickerson. ��I��m both a mom and someone who has worked extensively with at-risk kids. I also was trained in operant conditioning in graduate school and I know the power of these games to operantly condition players.��

Dickerson says recent research shows that violent games can lead to aggressive behavior in children. She also cites real-life incidents of violence such as murders in Minneapolis and carjackings in Oakland that she believes were inspired by a Mortal Kombat game and Grand Theft Auto III, respectively. She also referred to the April school shooting in East Germany that resulted in the deaths of 16 people plus the assailant. After the massacre, stories emerged that the troubled student played Counter-Strike. Much like Columbine, the murders triggered a national debate about the impact of videogame violence, with some German legislators calling for an immediate ban on sales of first-person shooters.

��I��m not saying all videogames are evil. I know there are a lot of great games out there, and a lot of very responsible players and very responsible parents. What I am for is blocking the access of some ultra-violent games from minors,�� says Dickerson.

...AND IN THIS CORNER

The gaming industry and retailers want no part of Dickerson��s law. The Interactive Digital Software Association and the Interactive Entertainment Merchants Association are preparing a suit as this issue goes to press to challenge the constitutionality of the Washington statute. IDSA president Doug Lowenstein says, ��I think it��s the wrong solution for this problem. We��re very confident that this law is unconstitutional and it will be struck down.��

Lowenstein admits that retail enforcement is ��spotty and needs to get better.�� But he says lawmakers have exaggerated the problem for their own political purposes. He cites his own FTC statistic, which found that ��parents are involved in the purchase and rental of games they get for their kids 83 percent of the time.�� The remaining purchases may be made without parental involvement, but Lowenstein insists that that doesn��t mean they are all Mature games.

��You can look at this and say this is some massive problem with retail, or you can say ��Hold on a sec, there is a problem and we need to get better at it at retail.�� There is no evidence��none��that there are tens of thousands of minors buying Mature-rated games. In fact, all the available data from both our own research and if you talk with retailers and the federal government is that if a minor has a copy of GTA3, for example, chances are they got it from mom and dad.��

What about the retailers?

PC and videogames sales account for $10 billion annually at retail. Given the money involved, the recent economic doldrums, and intense competition at retail, it��s not surprising that retailers would be reluctant to start refusing sales to anyone, especially kids who want to buy games. But some retailers have done just that.

Wal-Mart, Target, Toys R Us, and KB Toys have adopted policies to prevent kids from buying Mature games, and some of them have implemented systems to prompt cashiers to card younger-looking customers. Other retailers, such as Best Buy and Electronics Boutique, seem indifferent to the issue. The president of the Interactive Entertainment Merchants Association, Hal Halpin, says some of the retailers in the IEMA have purposefully chosen not to change their policy. ��The rationale is likely that they have witnessed their competitors make the move to restricting the sale of M-rated games to minors, and then seen the ramifications of those voluntary efforts go unappreciated,�� he says. ��Once a retailer formally announces that they are investing the considerable time and money into that effort, they are susceptible to spotlight-hungry politicians and the media who are out for quick sensationalism.��

Such reluctance is why politicians like Dickerson have started to take aim. But Halpin and Lowenstein say the reasons for slow implementation are more complicated than critics realize. Says Halpin, ��Implementing new procedures throughout our retail channel is not as simple as it is in other industries. When you go to a theater, for example, you��re there to see a movie and purchase the corresponding ticket. Even in a multiplex that has 20 screens, that translates into 20 SKUs [stock keeping units, the common term for individual retail products]. Most of the [major] chains carry thousands of SKUs of varying assortment. In some of our retailers, games as a category represent less than one percent of their business. So, politicians don��t understand the complexities of what we have been doing and the idiosyncrasies of implementing ideas.��

Lowenstein puts it another way. ��If you have 3,000 stores, and you have 10 or 15 registers per store, and you have two or three shifts working those registers a day, and you have people from the ages of 16 to 70 working those registers, and you have massive turnover in the store, to assert that this is easy is simply ignorant.��

Some may argue that the only way to get the attention of all those clerks at all those stores is to threaten to punish them for ignoring the policy. Enter Congressman Joe Baca (Democrat) from California. Baca has submitted the ��Protect Children from Video Game Sex and Violence Act of 2003,�� which would make it a federal crime to sell or rent adult videogames to minors. Baca defines ��adult�� as a game with nudity, sexual conduct or ��other content harmful to minors.�� Violators could face a fine of up to $1,000 the first time, up to $5,000 the second time and a minimum of $5,000 and/or 90 days in jail for subsequent offenses.

Lowenstein doesn��t think much of the Baca bill: ��If you think that by criminalizing the sale of these games you make it any easier to implement, you��re wrong. The practical issues are there. They can be overcome, and they will be overcome, and some stores are getting much better at it. If you look at stores like KB or Toys R Us, they are doing a very good job.��

Baca��s bill is also anathema to Halpin. ��Should laws pass and succeed in the long-term, it is likely that many retailers will pull M-rated product from their shelves for fear of seeing their employees carted off to jail for selling a Mario Brothers game. R-rated movies would likely be next.��

Halpin��s dire prediction is unlikely to come true, but we��ll see if the Washington statute actually takes effect on July 27.

��We��re very confident that these laws are unconstitutional and they will be struck down,�� says Lowenstein. ��The way it��s written, it��s so vague that you would have no idea what content would be covered by it.��

The recent appeals court ruling clearly backs that up: ��If the First Amendment is versatile enough to ��shield the painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll,�� we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in videogames are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence. Our review of the record convinces us that these ��violent�� videogames contain stories, imagery, ��age-old themes of literature,�� and messages, ��even an idealogy,�� just as books and movies do.��

The one form of entertainment that is not protected by the First Amendment is pornography. Should games be regulated the same as smut?

Lowenstein disagrees. ��The analogy to porn is ignorant and stupid. There��s a clear body of law that says that you can regulate obscene content. The Supreme Court has said so, and there��s a specific test to define that. The Supreme Court has also made it clear that you cannot regulate violence, which is why we��re confi dent in the outcome of [the Washington] case. There has never been anything comparable with respect to violence whether it��s in games, in films, in books, or in other medium.��

So it��s unlikely that the Washington statue will survive its pre-enforcement challenge. If it fails, it will also make it less likely that other governors will sign such bills, since the state would have to pay the legal fees of organizations bringing suit (namely the IDSA and retailer groups).

But the issue isn��t going to go away. With games like GTA3 selling in the tens of millions, it��s inevitable that there will be more games��with ever greater levels of sex and violence��that continue to push people��s buttons. Perhaps by then more parents will pay attention to the ratings system and take an interest in what their kids are playing.

WHAT THEY SAID

��A ton of kids play this game [GTA3], and it��s a status symbol in Washington State. The kids who have it get points for having sex with prostitutes and then brutally beating them to death. They get points for each time they kick that prostitute in the crotch. Is that what we want to teach our kids?��

��REPRESENTATIVE MARY LOU DICKERSON, WASHINGTON

��I think that adult content in videogames should be dealt with in the same way that adult magazines and videos are handled. I would say that if [the new law] is on par with the laws that handle adult magazines and videos, then it is a fair law.��

��CHRIS TAYLOR, GAS POWERED GAMES

��I would say she��s a better politician than she is a constitutional lawyer.��

��DOUG LOWENSTEIN OF THE IDSA, REFERRING TO MARY LOU DICKERSON

��I am not for censorship and I��m not for blocking the sale of any game. I��m a former journalist, I don��t like censorship.��

��Rep. Dickerson

Copyright © 2003 Ziff Davis Media Inc. All Rights Reserved. Originally appearing in Computer Gaming World.