Rule of the games
WHEN IT COMES TO regulating violent video games, lawmakers are like slow-fingered players who never find the key to the next level. Last week, a federal judge in San Jose placed a temporary hold on a new California law that would make it illegal to rent or sell certain types of violent video games to minors.
The courts have been unanimous on the issue, with U.S. District Judge Ronald M. Whyte’s ruling being the sixth to find such laws unconstitutional.
The issue is free speech. Courts have said consistently that manufacturers can be as violent as they want in their video games without fear of being restricted by the state.
The law’s sponsor, Assemblyman Leland Yee (D-San Francisco), got points from Whyte for crafting a bill that was not unconstitutionally vague -- a common problem when lawmakers try to regulate speech. Yee’s measure applied only to games that depicted killing, rape or maiming in a way that’s patently offensive or “especially heinous, atrocious or cruel” -- a standard clear enough in Whyte’s view for the industry to know which products would be regulated.
Nevertheless, Whyte granted a preliminary injunction against the California law because violence is different from sex, at least where the courts are concerned. The Supreme Court ruled in 1968 that states had a “rational basis” for barring shopkeepers from selling sexually explicit magazines to minors, regardless of the 1st Amendment. But the courts have never applied the same rationale to explicit depictions of violence.
The standard for laws against violent movies, lyrics or games is much higher: States must demonstrate that they have a compelling interest in limiting violent expressions, and that they’re using the least restrictive means to do the job. States cannot ban game sales to minors unless they can show a strong link between game playing and violent behavior, which has yet to be done to any judge’s satisfaction.
Why sex and violence are held to different standards is mystifying (although it may have something to do with the relative ease -- or difficulty -- of defining the two terms).
Given the courts’ approach, however, it’s time for lawmakers and game manufacturers to find another way to address the issue. The industry has a more detailed ratings system than Hollywood’s, as well as agreements with numerous retailers to enforce those ratings. And the next generation of game consoles will enable parents to use the ratings to limit which games their kids can play.
Ultimately, it is a parent’s duty to keep children away from inappropriate video games. Lawmakers who have tried to shift that duty to store clerks are now 0 for 6, and their average isn’t likely to improve -- no matter how many times they swing.
