It is too early to say for sure but there are some encouraging signs that our public policymakers are finally starting to get the point went it comes to the sensibility (and constitutional futility) of trying to regulate video game content. Just yesterday, for example, lawmakers in the District of Columbia passed legislation that establishes a program to educate consumers about existing video game ratings and console-based controls. This represents a major shift away from the regulatory approach originally floated by incoming D.C. Mayor Adrian Fenty. While serving as a D.C. Councilman, Fenty introduced a bill that would have proposed the old regulatory combo of mandates and stiff fines on game retailers who didn’t enforce the city’s approved regulatory scheme.
But the new version of the bill, entitled the “Consumer Education on Video and Computer Games for Minors Act,” takes a very different approach. The bill requires the city to “Develop a consumer education program to educate consumers about the appropriateness of video and computer games for certain ago groups, which may include information on video and computer game rating systems and the manner in which parental controls can enhance the ability of parents to regulate their children’s access to video and computer games.”
In a phrase, D.C.’s new approach is “education, not regulation.” And while some might object to the idea of government promoting education efforts about video game ratings or console controls, that approach is infinitely more sensible (and constitutionally permissible) than government censorship.
What makes D.C.’s turnabout particularly noteworthy is that is comes just a week after the 7th Circuit Court of Appeals decision in Entertainment Software Association v. Blagojevich, the Illinois case I discussed here last week. In that decision, judges once again held a state law unconstitutional for attempting to regulate video game speech. Specifically, the Circuit Court argued that the statute in question in the Illinois case was not narrowly tailored and did not represent the “least restrictive alternative” available to serve the interest of protecting children from potentially objectionable content. The Court noted that the industry’s voluntary ratings systems works quite effectively and that if the state wanted to adopt a less restrictive approach it could have simply could have adopted an educational approach. Noting that the parents are involved in well over 83 percent of their children’s video game purchases, the Court went on to argue that:
“If Illinois passed legislation which increased awareness of the ESRB [Entertainment Software Rating Board voluntary ratings] system, perhaps through a wide media campaign, the already-high rate of parental involvement could only rise. Nothing in the record convinces us that this proposal would not be at least as effective as the proposed speech restrictions.”
Again, such an approach has the added benefit of likely remaining within the boundaries of the Constitution and the First Amendment since government would not be seeking to restrict speech but simply inform and empower parents regarding the parental control options already at their disposal.
Let’s hope other lawmakers heed this advice before they waste more money litigating video game cases through the courts. According to the Electronic Software Association (ESA) which represents the video game industry and defends its rights in court, state lawmakers have had to shell out over $1.5 million in legal fees to the video game industry after losing cases in the following five cities or states:
Illinois–$510,000 Washington State–$344,000 St. Louis (8th Circuit)–$180,000 Indianapolis (7th Circuit)–$318,000 Michigan–$180,000
To be clear, that’s $1.5 million taxpayer dollars that have been squandered on fruitless efforts to censor video game content after several courts had already held similar efforts unconstitutional. And that’s $1.5 million that could have been plowed into educational efforts to help explain to parents and kids how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal.
Say it with me, state lawmakers, and repeat it 3 times so you don’t forget it:
“Education, Not Regulation.” “Education, Not Regulation.” “Education, Not Regulation.”
It’s the right answer, and the less expensive one!