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The Supreme Court’s June 27th decision to strike down a California law prohibiting the sale of violent video games to minors is a victory for both the video game industry and concerned parents everywhere. As a nation, we concern ourselves with the well-being of our children as well our economic health, and the court’s ruling reaffirms our commitment to both.
Since the inception of video games, from “Pong” and “Postal 2” to “Mortal Kombat” and “Grand Theft Auto,” the topic of violence has been highly contentious and polarizing among the industry’s supporters and detractors alike. Positions on the issue differ greatly, especially from state to state.
Amici curiae in support of the challengers (The Entertainment Merchants Association and the Entertainment Software Association) have been offered by ten states, eleven supported California through a joint brief, according to United Press International. The Court’s 7-2 vote strikes an important blow against an attempt at controlling an industry that is already regulated.
The law proposed a $1,000 fine for every sale of a violent video game to a minor, though the fine applied to the larger business rather than the individual handling the transaction. Plans like this, similar to former Gov. Blagojevich’s ill-fated “Safe Games Illinois Act” or the House’s “Video Games Ratings Enforcement Act” (both the handiwork of Democrats) have been popping up since the dawn of video games. Six states other than California have attempted similar laws, and all have failed in lower courts, costing the American taxpayer dearly. According to Americans for Tax Reform,
From a taxpayer advocate’s perspective, the video game laws have become incredibly costly. Each time a case is brought to court, taxpayers are forced to foot the bill for state Attorney Generals to defend the law – to the tune of over $2 million to date.
The outcome of Brown v. EMA doesn’t mean that the costly battles are over, however. Though the court’s decision sets an important precedent, the ever-evolving world of technology can present new opportunities for governmental regulation and control. Though he voted in the majority, claiming the California law was “too vague,” Justice Alito discussed the potential for future lawsuits:
“I would hold only that the particular law at issue here fails to provide the clear notice that the Constitution requires. I would not squelch legislative efforts to deal with what is perceived by some to be a significant and developing social problem. If differently framed statutes are enacted by the States or by the Federal Government, we can consider the constitutionality of those laws when cases challenging them are presented to us.”
Dissenting, Justice Thomas argued that the First Amendment doesn’t automatically apply to minors and Justice Breyer argued that the First Amendment was not violated by the law, as the age restriction was relatively minor. Nevertheless, the invalidation of the law came about through the use of “strict scrutiny,” the most austere version of judicial review. Summarizing the decision, Justice Antonin Scalia asserted that
“Our cases hold that minors are entitled to a significant degree of First Amendment protection. Government has no free-floating power to restrict the ideas to which they may be exposed.”
Last year, U.S. retail sales of video games including portable and console hardware, software and accessories video game sales pulled in almost $19.66 billion in revenue. If allowed to stand, the California law would have set a dangerous regulatory precedent for the gaming industry, as well as other sects of the entertainment world, like the film industry.
Though the Golden State’s law focuses on traditional hard copies of games, it is not unthinkable that similar restrictionary laws could be extended to the popular world of online gaming or particularly violent movies.
Opponents of the law are not in favor of giving young people unlimited access to violent video games, but instead point to self-regulatory organizations like the Entertainment Software Rating Board (ESRB) that already have a comprehensive enforcement system established. Working with retailers, the ESRB’s Retail Council participates in a variety of programs, like “mystery shopper” initiatives to ensure consumer adherence to ESRB age requirements.
These initiatives have been largely successful; the Federal Trade Commission reported that last year, thirteen percent of underage teenage shoppers were able to buy M-rated video games, down from 20 percent in 2009.
It is parents, not government, who are best suited to make choices regarding what video games their children do or do not play. While the California law had only one blanket rating, that of “18,” the ESRB rating system is comprised of seven age ratings and thirty content descriptors that empower parents to determine exactly what game is best for their child.
It’s the same old story with regulation; if the forces of the free market are allowed to work, self-regulation can be successful. Video game companies realize that it can’t rely on clandestine purchases for revenue, so the industry imposes a system to involve parents in the purchasing process, thereby increasing profits.
The economic stipulations of the California plan (included perhaps, in an effort to make a quick buck) are shortsighted. While technological advances have made it easier for games and movies to be pirated, the means of distribution has also increased, and along with it, the industry’s economic potential. The fines and penalties that come with government intervention only mean cuts and restricting in the industry, measures hardly conducive to increases in growth and profit.
The Court’s elimination of this highly detrimental law is a step in the right direction, but as technology advances and the entertainment world broadens, more laws will need to be challenged and more precedents will need to be set. For all the good things technology brings us, in variety, quality and affordability, there are more opportunities to lose those benefits to regulation.