Two New Opinion Pieces Back Game Industry in SCOTUS Showdown

November 10, 2010 -

Yesterday we highlighted two editorials that backed California in its Supreme Court appeal over a law that would make it illegal to sell minors mature-rated violent games. Today we offer you a pair of views from people backing the game industry in its Schwarzenegger vs. EMA fight.

First up is President of the First Amendment Center Ken Paulson, who took to USA Today to offer his opinion that governing the intake of media should be left to a child’s parents or guardians.

The First Amendment Center, relatedly, recently published results of a study it undertook into who should be responsible for limiting such media intake; results of that poll can be found here.

A sampling of Paulson’s argument:

In the '50s, dime novels and comic books were pilloried as threats to the welfare of young people, with Batman and Robin characterized as unhealthy role models. Musical icons from Elvis to Eminem have been targeted as bad influences on young people. Pop culture always pushes the envelope, and well-meaning people concerned about children push back. Yet over time, industry self-regulation and parental involvement have proved far more effective than censorship.

Meanwhile, a similar opinion piece appearing on the University of Arizona Daily Wildcat website states that the issue of the California law “seems hardly debatable,” as “such a ruling would impinge on developers' First Amendment rights, forcing them to self-censor and speculate whether their games might provoke a federal case.”

The author continued:

Plain and simple, lawyers who don't play video games are trying to talk about them. And not just talk, but make hugely important decisions about their future. Either way, it's clear in the transcript of the hearing that not only does Morazzini have limited understanding of the real level of violence in video games, but the justices are also not experts.

That's to be expected to some degree, but when your argument is based off of a hypothetical game in which you can torture babies and "Postal 2," a 1997 game that was truly horrid, you don't have much. To be frank, while you can do some pretty twisted things in a small handful of games, it doesn't come close to infanticide.


Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

I find it strange that during the whole talk about an X rating in the oral arguments, they never brought up that there IS an equivalent ESRB rating.

It's just that there have only ever been 2 games given an AO rating for violence (the rest have been for sexual content).  And even better than the movie industry, the big 3 refuse licensing to games rated AO on their systems.

NC-17 movies are still shown in many theaters and I'm pretty sure not a single one of them has been rated that way for violence.

------- Morality has always been in decline. As you get older, you notice it. When you were younger, you enjoyed it.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

Unfortunately, though AO and NC-17 are based on the same basic concept, they don't have the same consequences. Because movies don't require licenses from platforms, an NC-17 movie can be played anywhere that chooses to show it. An AO game cannot be licensed on the major consoles, which is a devastating blow to the market value of the game.

Thus, while NC-17 and AO ratings can both be viewed as a soft ban by moviemakers and game developers, an AO rating is much more severe. I think the ESRB keeps that in mind when they make their ratings, which can skew the result.

On the other hand, since games must aim for marketability and the margin for error with a game release is much smaller than that for a movie release, publishers and developers already self-censor to make the game a more viable product.

The extra scrutiny from watchdog organizations who would believe that Postal 2 is par for the course for ALL gaming doesn't help matters, either.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

I think the ESRB keeps that in mind when they make their ratings, which can skew the result.

Are you seriously implying that the ESRB has an agenda when it decides a game is not suitable for play by anyone under the age of 18?

E. Zachary Knight
Oklahoma City Chapter of the ECA

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

I would argue that it was in both the case of Hot Coffee and Killzone 2.  (It was Killzone 2 that was originally rated AO, right?  Apparently my company's firewall blocks even WIKIPEDIA ARTICLES about games.)

The AO on San Andreas was a swift reaction to a controversy and an attempt to show that the industry had the situation in hand.  The AO on Killzone 2 was an attempt to tamp down controversy before it started.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

Evil Dead was rated NC 17 doe violence. :P Silly though since the blood is blue, green orange. XD Good point why didn't they bring up during the arguments the ESRB can basicly ban any game they deem as too violent/sexual from store shelves and every customer regardless of being an adult with the AO rating.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

The ESRB does not ban anything. Applying an AO rating to a game is not a ban but a rating that states that the ESRB found the game to not be acceptable for play by anyone under the age of 18.

E. Zachary Knight
Oklahoma City Chapter of the ECA

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

If the rating board gave my game a rating that no store/console maker will allow then I would pretty much say "Yea its been banned." Then would be forced to censor my work to get a rating that can be sold in stores and put on consoles. If it was a PC game I would see if Steam would allow AO games and see if I can have it put on that.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

Except that it is not the ESRB banning your game. That would be the consoles and stores who are banning your game from market places.

E. Zachary Knight
Oklahoma City Chapter of the ECA

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

It's the ESRB applying a rating that it knows fully well will prevent the game from being sold.

Technically the Comics Code Authority never handed down a single ban either, but that little bit of semantic hairsplitting doesn't make any difference in terms of real-life results.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

So you would rather the ESRB go against its stated purpose and assign ratings it does not fully believe a game should get? I think that would create more problems then it would solve. This would be like stating that the ESRB should not rate games as M and instead rate them as T to avoid the violence in games controversy.

I think anyone who rails against the ESRB for the "AO Ban" needs to redirect their ire to those who are actually responsible, console manufacturers and retailers.

The AO rating is a completely valid rating and there is no fault on the ESRB's part when a game is banned because of it.

E. Zachary Knight
Oklahoma City Chapter of the ECA

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

I support the AO rating.  There's nothing inherently wrong with its use.  Although, retailers and console developers do overreact to it.  When the ESRB and the ESA first came into being back in the early 90s, yeah, I can understand why they chose not to support or carry games with an AO rating.  Games were still misunderstood and something of a niche hobby, and older people were even more scared of them than they are today.  But the climate has changed, and I think there's a place for an AO market.  Microsoft, Sony, and even the fussy Nintendo could allow liscensing to AO games.  I mean, most stores already card minors 81% of the time, so it's not like porno games are going to fall into every 8 year old's hands overnight.  And with digital distribution, we're already seeing an immerging market of (admittedly amaturish) adult computer games.

So no, don't blame the ESRB.  Blame the consoles and retailers for stalling adult entertainment.

(although, we should admit that the ESRB does flub their own rules a bit.  Sure, gambling with real money gets and AO, and onscreen sex does as well, or games that focus heavily on sexuality, like that abismal Leisure Suit Larry game a few years back.  But the third AO requirement, long-sustained super gorey violence, is often given a "pass" for an M rating.  There are a few games that are pretty hardcore violent, but they don't get the AO stamp.)

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

The way I see it, the ESRB goes against its stated purpose by continuing to use the AO rating.  The ESRB says it rates games to inform consumers of a game's content so that they can make informed purchasing decisions.  Using the AO rating completely circumvents that goal.


Andrew Eisen

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

I don't see how that circumvents their stated goal. They give it an AO rating and provide the descriptors for the game. At that point it is in the hands of the game developer to weigh their options. If those developers are bound by the licensing terms of their console of choice who bars the licensing of AO games, they are screwed.

I just see no way the ESRB can solve the AO problem on their own. They can do any of the following:

1) Stop giving any game an AO rating, but this will lead to even more outrage by people in power who are looking for any fault in the ratings process. They would leap for joy to find out that the ESRB is rating games they know should be AO as M.

2) They could change the top levels of ratings to shake up the industry, but what is to stop Nintendo, Sony and mIcrosfot from denying a license to any games that get the new highest rating? What is to stop retailers from refusing to stock the new highest rating?

3) Continue as they are and the situation does not change.

Those are the ESRB's only options when it comes to AO rated games. Neither one solves the problem.

So again I say that anyone who is blaming the ESRB for the problems associated with the AO rating need to redirect their ire and place it on the consoles and retailers.

E. Zachary Knight
Oklahoma City Chapter of the ECA

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

"I just see no way the ESRB can solve the AO problem on their own."

That's true.  They would need support from retailers and console manufacturers.  And probably major publishers too.

But they're absolutely in a position to SEEK that support.  They have a bully pulpit; they could have this conversation.  They choose not to, and the dole out what effectively amount to bans and shrug and say it's somebody else's problem.

There's also the issue of being opaque and often not explaining their decisions.  As I've said before, I still don't believe Hot Coffee should have been the difference between an M and an AO; it's less graphic than late-night Cinemax and wouldn't be the difference between an R and an NC-17 if it were film.  And did they ever explain the changes that brought, what was it, Killzone 2 down from an AO to an M?

The issue is that they're making decisions for me, and I don't agree with all their decisions.  I'm not saying they shouldn't give out AO's, but I'm saying if they're going to, they need to work with the industry to ensure AO is not a kiss of death.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

I circumvents its stated goal because when they assign a game an AO, I can no longer make an informed purchasing decision.  I have no choice at all.

The AO rating is not working the way its supposed to.  It's supposed to inform me about a game's content.  What it actually does, is keep me from playing that game (at least as the developer intended it).

Is this the ESRB's fault?  No.  However, that doesn't mean it doesn't share blame.  The ESRB is not blind or stupid.  It knows what an AO means.  It knows what happens when it assigns one.  Using that rating does not accomplish its mission statement.  In fact, it does exactly the opposite so I fail to see why it continues to employ it.

Does the ESRB have to do anything?  No, but it would be nice if it did.

My suggestion?  Get rid of the AO rating and replace it with more content descriptors such as "prologed scenes of intence violence" or "graphic sexual content."  That would be much more informative anyway which is the entire point of the system in the first place.


Andrew Eisen

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

Ratings work differently in different contexts. In a direct business-to-consumer relationship, ratings help the individual buyer or end user determine whether to purchase the item.

However, retail is very different. In retail, individual buyers purchase from the retailer's inventory which is sold to them by a publisher/distributor. Retailers are effectively middlemen with their own markets, their own unique customer bases. They tailor their offerings to their local markets, in order to maximize revenue from each location. Ratings help retailers, who are the buyers in the transactional relationship with publishers/distributors, determine their inventory. In this sense, ratings work perfectly, because they inform buyers and customers of those buyers supposedly benefit from their keen insights into their local markets.

Retailers are completely within their rights to determine what they offer in their stores, but consumers are also completely within their rights to determine where they shop. ESRB has no control here; they don't tell anyone how to run their companies.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

Console manufacturers and retailers won't touch AO games, not because they give a damn about the content (that's been shown repeatedly) but because the rating has a stigma attached to it.  Both seem to think they will suffer some public backlash or tarnishing of their image if they offer games so branded.

The problem is the AO rating itself and how its viewed.  Something has to change because the rating is not serving its intended purpose.

To be fair (and because I'm sensing that some of you might be thinking I'm putting sole blame on the ESRB), the console manufacturers and retailers need to either drop their BS "we offer games for all ages" or actually abide by it.


Andrew Eisen

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

If everyone knows the trouble of the AO rating why can't they come up with a new one that is not going to be banned from stores/consoles? Use that and retire the AO rating.

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

Because a turd by any other name is still a turd.

E. Zachary Knight
Oklahoma City Chapter of the ECA

Re: Two New Opinion Pieces Back Game Industry in SCOTUS ...

Postal 2 came out in 2003 not 1997.

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