February 20, 2008 -
In a remarkable coup for a game-oriented site, Laws of Play's Anthony Prestia had the opportunity to hang out with U.S. Supreme Court Justice Antonin Scalia - and used the time to ask Scalia how he might regard video game legislation, should it ever come before the Court.Scalia, the second most senior member of the Court, is a noted conservative. Prestia writes:
I asked [Justice Scalia] whether... he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment...
Justice Scalia replied that he did believe such legislation was constitutional. He began by explaining his belief that sound constitutional precedent holds that minors may be subjected to prohibitions that adults are not – he instantly drew the parallel to regulation of pornography sales...
Justice Scalia did not suggest that violent and/or sexual content in games rises to the level of unprotected speech. In fact, he did not even suggest that video games themselves are not protected by the First Amendment...
Scalia's remarks are especially noteworthy given the dismal track record of state-level video game laws in lower federal courts. To date, all nine laws to have gotten that far have failed. Prestia continues:
The implications of Justice Scalia’s answers are multi-dimensional. First, he suggests that upon appeal to the Supreme Court at least one of the nine justices [himself] would affirm state laws that ban the sale of mature-rated games to minors. Second, his remarks suggest Justice Scalia believes that video games not qualifying as obscenity... are protected by the First Amendment.
Essentially, this means that one of nine Supreme Court justices believes the sale of mature games to minors can be regulated, but that the overall regulation of the medium would most likely be unconstitutional...
Such a holding would not place a ban on parents buying mature games for their children; it would simply prevent minors from buying the games on their own and would leave parents to be parents...
Comments
As has been discussed in the pages of GamePolitics many times, these laws do in fact affect more than kids. It affects retailers, developers, parents, and potentially other forms of media.
“Games may not harm children, but neither does keeping games from them.”
Very true. So why do we need a law that keeps games from children?
“And the answer is standing at your local Target buying M-rated games while his parents either work too much or work too little to care where he is, why he’s there, and when he’ll be home.”
If that’s the case, who cares what game he’s playing? There are much bigger problems here such as parental neglect. Now tell me, how would passing a law that gives lazy parents even less of a reason to pay attention to their kids going to address that?
Andrew Eisen
"If that’s the case, who cares what game he’s playing? There are much bigger problems here such as parental neglect."
Perhaps you missed the point. Parental neglect is what I was trying to portray, not the child playing games.
"Now tell me, how would passing a law that gives lazy parents even less of a reason to pay attention to their kids going to address that?"
Maybe you've never worked a retail store before...parents do not need an excuse to ignore their children. But when a retailer asks a parent for their driver's license in order to purchase an M-rated game, they will definitely think twice about the game itself.
When Grand Theft Auto: San Andreas was released, I was working part-time at a local Target store. I carded many parents, and 9 out of 10 asked why, and promptly refused to buy the game when they were educated of the game's rating and content.
"When Grand Theft Auto: San Andreas was released, I was working part-time at a local Target store. I carded many parents, and 9 out of 10 asked why, and promptly refused to buy the game when they were educated of the game’s rating and content."
Great. Sounds like the system in place is already working just fine. No need for a law.
Andrew Eisen
"Great. Sounds like the system in place is already working just fine. No need for a law."
I completely agree. Unfortunately, that system is not enforced at all. Don't believe me? Go to Wal-Mart or Best Buy and buy an R-rated DVD or M-rated game. Most of them have tags that ask the cashier to card you.
If you watch, though, he/she will skip past the inquiry screen.
If everyone is okay with the system being there, then why the hub-bub if the government decides to enforce the system?
Why should the government protect parents against their own incompetence? Unless violent video games are actually harmful to minors, I see no justification for the government to assume the parent's role.
I will have no nanny state.
It's whether the government should step in and enforce it.
Right now, the rating labels and rules movies, music, etc. aren't actually government-enforced, but the industry is mainly responsible for governing themselves.
Videogamse being restricted by law seems to set a double standard for media, and frankly, shouldn't be necessary at all.
Seeing how many movies nowadays have a barely-legible rating on the back of the DVD (some not at all, even), I don't see how any somewhat competant parent could MISS THE HUGE STAMP ON THE FRONT COVER! Meh, I suppose it's a generation gap issue.
I skipped this quote in my haste...
"It affects retailers, developers, parents, and potentially other forms of media."
It is the developer's decision and the retailer's decision to create and carry M-rated games. It is unfair to consumers to have to accept gore and violence as a "feature" that adds sensationalist value to the game.
Personally, I'd rather that my $60 was awarded to a developer that can create a Game of the Year without the exploding heads and carjackings.
It's amazing that on the same website, some people will cry foul when a news program will sensationalize its reports for ratings, and yet Hollywood and video game studios constantly include controversial material just for the sake of notoriety.
Either you agree with sub-moral methods, or you don't. But either way, it should be up to the ADULT in each situation to invite the media into their home, be it hooking up a TV without blocking certain channels, or buying M-rated games for their children.
What I continue to wonder is why are computer games being focussed on, other than their 'newness', and I can't help thinking that the ESA was, until this year, the only major Media format that did not lobby politicians, despite their multi-billion income.
I must admit, I do quite a lot more than 'spend all day and night' in my room, and at 35, my parents are unlikely to tell me to come down for dinner or clean my room, though my wife does moan at me about the office.
My problem will always lie not with the idea of legally enforced ratings, but with the singling out of Video games for no definite or pre-defined reason other than than some horribly mis-quoted studies.
"If everyone is okay with the system being there, then why the hub-bub if the government decides to enforce the system?"
Because the system doesn't need to be enforced. It's not necessary. The policy is the choice of a private retailer. If I don't like it, I can shop somewhere else. But the gov't shouldn't tell Target "you cannot sell games of this type to children" without a really good, compelling reason.
At the end of the day there is no reason to restrict the sales of games to minors. If private stores want to enact a voluntary policy to refuse sale of M-rated games to kids, fine. It’s their choice even if there’s really no reason for it.
Andrew Eisen
"Why should the government protect parents against their own incompetence? Unless violent video games are actually harmful to minors, I see no justification for the government to assume the parent’s role.
I will have no nanny state. "
Okay, maybe you need to educate ME on this...
Does a "nanny state" forbid adults to buy games for their children or not? Because I've never seen proposal that would do so.
That is a very sweeping generalization. Only 8% of games released last year were rated M. Very few of those were controversial for controversy sake. Of those they were developed by a handful of developers.
Most game developers want to make great games that stand out because they are good. Not because they get media whore attention.
"It is the developer’s decision and the retailer’s decision to create and carry M-rated games. It is unfair to consumers to have to accept gore and violence as a 'feature' that adds sensationalist value to the game."
Consumers don't have to accept gore and violence at all. The person with the money has the power to decide the kinds of games he buys. No developer or retailer can possibly force you to play games you don't wish to play.
"Because the system doesn’t need to be enforced. It’s not necessary."
You didn't seem too concerned when I mentioned that retailers were enforcing it...
This is where the problem lies: a lot of Americans don't want their convenience threatened, and even more Americans are obsessed with making sure that someone else is ALWAYS liable.
The bottom line is that if you're any kind of decent parent to your kids, and if you take responsibility for yourself and your family, then none of this will matter.
Let's stop attacking the government for taking too long to get water to the Superdome and for restricting game sales to minors, and let's take responsibility, eh?
“It is unfair to consumers to have to accept gore and violence as a “feature” that adds sensationalist value to the game."
Who says the consumer has to accept gore and violence? The consumer can buy something else.
Not every game is GTA and Manhunt.
Andrew Eisen
"Consumers don’t have to accept gore and violence at all. The person with the money has the power to decide the kinds of games he buys. No developer or retailer can possibly force you to play games you don’t wish to play."
Thank you for pointing out my error. I didn't meant that exact wording without the context around it. My point was that many developers put more effort into games that they know will garner political and controversial attention.
And you're right -- he with the money wins. Which is another reason to worry about the young'uns who are headed down to the store to help tip that scale.
To string my thoughts together:
That is a very sweeping generalization. Only 8% of games released last year were rated M. Very few of those were controversial for controversy sake. Of those they were developed by a handful of developers.
Most game developers want to make great games that stand out because they are good. Not because they get media whore attention.
“You didn’t seem too concerned when I mentioned that retailers were enforcing it…”
Yeah, that’s because the retailers were enforcing their own voluntary policies, not the gov’t’s. As I said before, if I don’t like that policy, I can shop somewhere else.
Andrew Eisen
"That is a very sweeping generalization. Only 8% of games released last year were rated M."
But how many were awarded honors by magazines and webzines? For the last two years, four out of the five games that were generally considered completely worthy of the price point were M-rated.
I'm talking quality, not quantity.
A nanny state might, but it makes little difference. You expect the government to step in and do the job that presumably lazy parents aren't willing to do, yet provide no good reason for such a policy. Those are the actions of a nanny state, and I don't like it.
"Yeah, that’s because the retailers were enforcing their own voluntary policies, not the gov’t’s. As I said before, if I don’t like that policy, I can shop somewhere else."
Yeah, I figured you fell in the "underage" category, and you're all but confirming it. Nothing against you, but underage children have a different agenda than an adult would when it comes to this debate.
"A nanny state might, but it makes little difference. You expect the government to step in and do the job that presumably lazy parents aren’t willing to do, yet provide no good reason for such a policy. Those are the actions of a nanny state, and I don’t like it."
Just curious, then: what was your stance on the Katrina disaster? If you thought that the government was in NO WAY obligated to help evacuate, clothe, and shelter the victims, then you're in the minority (as am I).
We either want the government's intrusion, or we don't.
Sorry, but I don't see the logic in this analogy.
And according to game rankings, 11 of the top 20 best rated games are M-rated. Of course, Orange box is on their twice. It’s rated T-M. Half-Life 2 is on there so basically the same game is hogging 3 of the spots. Resident Evil 4 is on their twice. So is BioShock.
I don’t think anyone’s going to argue that Half-Life 2, Resident Evil 4, and BioShock aren’t indeed, fantastic games and not just gross exploitations of gore for gore’s sake (although there’s nothing wrong with that).
Andrew Eisen
So...when do we start executing teens for capital offenses?
The government's job is to do for the people what they cannot do for themselves. To draw a connection in government intervention in Katrina and vidoe games is really reaching for it.
The people after Katrina were homeless jobless. They could not be expected to provide for themselves.
Parents are well within their ability to keep M rated games or any other game or media they find offensive out of the hands of their children. This in no way is on the same level as Katrina.
Oh, I get it...kind of a more justified Welfare system, right?
Let me ask you this: if you were asked to volunteer an additional 3% of your paycheck to fund future FEMA endeavors, would you?
You seem rather fond of straw man arguments.
http://en.wikipedia.org/wiki/Straw_man
It is not about securing adult rights for children, it is about preserving the parents' right to raise their own children.
When the government steps in a forces stores to stop selling M rated games to minors, they are basically telling me as a parent that I am incapable of performing my job. I find that very offensive.
I take it that you don't have children.
I am already taxed to support FEMA.
But as for your "rebuttal", FEMA is meant to help people get back on their feet. Not to sustain them for life.
In reality, the welfare system is supposed to be the same. But they have a hard time removing those who abuse the system.
...and apparently, it's also about sticking it to the man instead of prompting parents to actually MAKE a decision.
"When the government steps in a forces stores to stop selling M rated games to minors, they are basically telling me as a parent that I am incapable of performing my job. I find that very offensive."
And here comes the essence of the dilemma. It's not practicality, it's principle. This country can burn to the ground, but by jove, it will do so without offending anyone.
Give me a break.
I didn't think so.
So you felt that all of FEMA's previous actions were adequate in assisting [those who chose not to evacuate when instructed to]?
So…when do we start executing teens for capital offenses?
...
And here comes the essence of the dilemma. It’s not practicality, it’s principle. This country can burn to the ground, but by jove, it will do so without offending anyone.
Give me a break.”
Okay, you’ve completely lost me? What are you talking about?
Andrew Eisen
It's stupid for the government to do the parents job for them.
If the parents want to be lazy fucktards, let them but also penalize them for being a lazy fuck.
Let the parents parent. It is NOT the governments job to raise their kids!
Prompting parents to make a decision by forcing stores to decide for the parents? That makes no sense.
It isn't about the rights of children it is about making laws that are pointless and unneeded. There is no proof that there is a need for a law against the sale of violent videogames to minors. So why do you want one?
Again, if they try to issue restrictive legislation on M rated games, I expect there to be legislation on R rated movies in the same package.
HOWEVER, AO Rated games, or unrated games from... to pick a country at random, Japan... that are obviously pornography; these things have no business being played by anyone under 18.
AGAIN, games are a MEDIUM. This means that if he says that some games should be illegal for children to purchase, it doesn't mean he is anti-free speach or anti-gaming.
It all depends on where the line is drawn. If he says, it's illegal for children to buy Halo 3, I take issue with that. If he says it is illegal for children to play Hentai Oppai Odyssey VII: The Made up Name, he probably has a point.
As for the nay sayers out there talking about free-speech, you need to see what CAN be done with games before you start saying that all of them are protected by free speech. There are games out there that would make you cover your childrens eyes with a copy of Hustler to keep them from seeing. Obcene doesn't start to cover it.
If the government regulated game sales to MINORS, then the stores would NOT decide for the parents -- they would decide for the MINORS.
You keep getting wrapped up in the thought that this would be a bad thing for parents (regarding freedoms, not sales), but in truth it would only affect minors.
As I said earlier, such legislation would affect more than just minors. Retailers would obviously be affected. They could be fined or jailed for selling a game. They might stop carrying certain games just to be on the safe side.
Developers, knowing that retailers are panicky about which games they can and cannot sell, start censoring themselves.
Censored games affect adult consumers because we don't get to play games as the creators intended (see: Manhunt 2).
Parents are affected because they loose potential parenting options. For example, I trust my son. I like giving him responsibility so I send him to the store with $60 + tax and the knowledge that he can't have certain games. If he comes home with one of those games, he and I are going to have a talk. Talks such as these are incredibly valuable.
It affects minors because they can't buy games their mom or dad said they could. Who wants mom or dad standing behind them at the register? Especially when they’re teenagers.
Andrew Eisen
That's a matter of opinion.
http://books.google.com/books?id=wlgqHQAACAAJ
I wonder if you know that a minor is anyone under the age of 18. This is not just elementary school age, we are also talking about high school age. Imagine that you have to go with your 17 year old child (if you have one) just so he or she can buy an M-rated game. Imagine being that 17 year old that has to have his or her parents with them. Imagine being a 17 year old with a job, unrestricted driver's license, and a 4-point GPA that can't buy a game like Halo without your parent(s) at the register. I even know people who got their high school diplomas when they were 17. Imagine having a high school diploma at that age, but can't buy God of War without the parents with you.
In case you want to know, I'm 23 years old.
For private organizations, both the MPAA and the ESRB do pretty good jobs in the US. The ESRB actually has a clearer, more understood set of descriptors as to why something got a rating, but in the US, the MPAA's movie ratings are more well-known and established. However, neither of these organizations are connected to or related to anything with the government, it is industry self-regulation. And, it works despite whatever a wacky Miami attorney might claim.
I agree with the interpretation of what the Justice said that EZK offered earlier in the thread. IF games were made that fell under the obscenity tests/laws, then they could be regulated. But, they aren't, so they can't.
Meanwhile the kid’s parents, oblivious and uninvolved, won’t ever find out that their kid is playing Manhunt at their best friend’s house. "
What is your suggestion, then?
We seem to agree that there is a problem, but are quite comfortable shooting down everyone else's solution.
“I don’t know about everyone else, but I have no idea where these kids are buying their M-rated games.”
I’m glad you brought that up. Another thing about these laws that is so ridiculous is that fact that it’s trying to prevent from happening something that’s incredibly rare to begin with (and not a problem anyway).
Let’s look at the facts:
-According to the ESA, a parent is there at the point of sale 91% of the time. Add a few percentages for grandparents, aunts, uncles, older cousins, siblings or friends and you’re looking at a very small percentage of games being sold to children by themselves.
-According to the NPD, M-rated games make up only 15% of sales (2006). So, of the very few kids purchasing games, it looks like the majority of them are purchasing E – T-rated games anyway. The few that are buying M-rated games are probably 15 – 17-years-old.
At the end of the day, kids buying M-rated video games is incredibly uncommon.
The FTC said that over 50% of the time, minors were refused an M-rated game at the point of sale. But that’s over 50% of the kids who were given money, transportation, and explicit instructions to purchase an M-rated game. I’d be much more interested to see the results of an month long observation of several retailers. See how often kids trying to buy M-rated games actually occurs.
Andrew Eisen