GamePolitics.com points out that Minnesota will reimburse the video game industry to the tune of $65,000 for their attorneys fees it incurred when challenging Minnesota’s 2006 “fine-the-buyer” law. The Minnesota law was unique in that it sought to impose fines on the buyers rather than the sellers of games rated either “M” for Mature or “AO” for Adults Only under the industry’s voluntary ratings system. Other state and local laws that have been struck down in recent years imposed penalties mostly on game retailers who sold games rated M or AO to minors. In a scathing opinion handed down back in August 2006, James M. Rosenbaum, Chief District Judge of the District Court of Minnesota, struck down the Minnesota law as unconstitutional.
But here’s what’s really important about the fact that the industry recovered legal fees in this case and others. As the Entertainment Software Association noted in its press release about the Minnesota settlement: “The ESA [has] prevailed over similar unconstitutional laws in nine other jurisdictions [and] now has been awarded close to $2 million in fees and expenses spent in defending gamers, developers and publishers’ First Amendment rights.”
As I have noted previously, these cases make it clear that there is a significant opportunity cost associated with censorship efforts. That $2 million in recovered legal fees could have been plowed into educational efforts to help explain to parents how to use the excellent voluntary ratings systems or console-based parental control tools that are at their disposal. Moreover, that $2 million in recovered industry legal fees does not account for the resources that state and local officials put into these regulatory efforts. So, we are talking about a much greater deadweight loss for society and taxpayers.
Just think, what if government officials had spent that money on some PSAs during a major sporting event? Or perhaps more brochures and in-store displays to make the public better aware of the ratings and parental control tools at their disposal. Or even a direct mail campaign to homes with children making parents aware of these ratings and tools? (I must note, however, that surveys show parents are already very much aware of these ratings).
Some people would still complain that such government efforts were a waste of taxpayer resources. But such efforts would be entirely constitutional and likely be far more effective at encouraging parents to take steps to shield their kids from potentially objectionable content when they do not want it in their homes.
That’s where the ultimate decision belongs, after all—with the parent, not the government. But if government officials insist on “doing something” about games they do not like, the more constructive and constitutional approach is education, not regulation.