Over at National Review Online today, Peter Suderman has a good discussion of the current state of video game politics. As usual, a lot of politicians are playing games; political games, that is. Suderman notes that:
…attacking the video-game industry has long been a favored sport amongst politicians eager to shore up their credibility with the concerned parent crowd. At the state level, at least ten laws banning the sale of certain video games to minors have been brought to life. In California, Governor Arnold Schwarzenegger, a guy who made his name hacking and slashing his enemies to a bloody pulp on the big screen, apparently didn’t want high schoolers doing digital imitations: He tried to ban the sale of violent games to minors back in 2005. Oregon is currently considering a similar law, and New York Governor Eliot Spitzer recently stated that he intends to pursue one as well. But these laws go down like a final level boss once they hit the courts. To date, not one of the dubious proposals has stood up to a court challenge.
Some lawmakers can’t even be bothered to worry about anything so insignificant as considering whether a law is constitutional. Regarding one video-game ban, Minnesota state legislator Sandy Poppas shrugged off any such responsibility, saying, “Legislators don’t worry too much about what’s constitutional. We just try to do what’s right, and we let the courts figure that out.” The recurrent bashing of the game industry tends to resemble a major league team taking on a troop of t-ballers: Politicians get to knock a couple of balls out of the park in front of parents, but the whole thing is just a show.
Indeed it is. I made a similar argument in a piece for NRO last year as well as my big PFF study, “Fact and Fiction in the Debate over Video Game Regulation.”
The FCC has just issued its long-awaited report on Violent Television Programming and Its Impact on Children. Unsurprisingly, it recommends that the government should assume a great role in regulating the video content that comes into our homes. The agency concludes that: “We believe that further action to enable viewer-initiated blocking of violent television content would serve the government’s interests in protecting the well-being of children and facilitating parental supervision and would be reasonably likely to be upheld as constitutional.” (p. 15)
Ambiguity Defined
Ironically, however, the FCC’s report goes on to undercut its own argument for regulation again and again because of the stunning level of ambiguity surrounding everything they propose. For example, in the second paragraph of the report, the FCC notes that “A broad range of television programming aired today contains [violent] content, including, for example, cartoons, dramatic series, professional sports such as boxing, news coverage, and nature programs.” Is the agency saying such things could be regulated? They never tell us.
Or consider the endless number of questions raised by this paragraph on pages 20-21:
We believe that developing an appropriate definition of excessively violent programming would be possible, but such language needs to be narrowly tailored and in conformance with judicial precedent. Any definition would need to be clear enough to provide fair warning of the conduct required. A definition sufficient to give notice of upcoming violent programming content to parents and potential viewers could make use of, or be a refinement of, existing voluntary rating system definitions or could make use of definitions used in the research community when studying the consequences of violent programming. For more restrictive time channeling rules, a definition based on the scientific literature discussed above, which recognizes the factors most important to determining the likely impact of violence on the child audience, could be developed. For example, such a definition might cover depictions of physical force against an animate being that, in context, are patently offensive. In determining whether such depictions are patently offensive, the Government could consider among other factors the presence of weapons, whether the violence is extensive or graphic, and whether the violence is realistic. (p. 20-21)
Let’s try to unpack some of this because defining “excessive violence” is really the core of this debate.
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The Parents Television Council (PTC), a media activist group that routinely petitions Congress and the FCC for greater content regulation, recently released a new poll which they say proves that the V-Chip and parental control technologies have been a failure.
Their poll finds that only 11% of those surveyed said they used the V-chip or their cable box parental controls to block unwanted content from their television during the past week. And that result is virtually unchanged from a poll they took last September asking the same question. Therefore, the PTC concludes that recent efforts by broadcasters and cable companies to spend hundreds of millions of dollars educating families about these parental control tools have been a failure. And, unsurprisingly, the PTC feels that this again shows the need for government regulators need to step in and do more national nannying for us.
As I’ll make clear in a moment, the V-Chip and current television ratings are certainly not perfect. And I have no doubt that household usage of these tools is quite low for reasons I’ll get into. But let me first address what appears to be a rather glaring methodological deficiency of this PTC poll which makes it difficult to take seriously.
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This review is terribly late, but I finally got around to watching the DVD of Kirby Dick’s documentary “This Film Is Not Yet Rated,” which goes after the MPAA’s movie rating system. Dick tries to paint the MPAA’s private, voluntary ratings board as a “star chamber” that sits in judgment of visual arts and routinely “censors” content it finds at odds with the desires of the studios, government, the military, churches, and so on. But to me, the whole film is much ado about nothing and, worse yet, it fails to adequately address the very real risk of a government censorship popping up in the absence of a private ratings system.
By way of quick background, the MPAA’s familiar ratings system was created by former MPAA president Jack Valenti back in 1968. It was partially a response to the growing pressure for film censorship. Back then – – and this is one of many things Dick’s documentary largely ignores – – there were local censor boards who sat in judgment of films and decided if they could be shown in their communities. And there were ongoing efforts by many lawmakers at all levels to impose regulation on movies or at least strong-arm movie makers into changing content in certain ways.
And so the MPAA ratings system was born. A crucial feature of the MPAA system was that those doing the ratings would be anonymous. The reason this was done was to protect them from being pressured by both those who made the films (who obviously want less restrictive ratings) and those in government or the public who critique the films (many of whom would want stricter ratings).
But keeping raters and the rating process secretive has always had one obvious downside: The system lacks transparency. Why is it that two films with very similar content get two different ratings? Sometimes it’s obvious, other times it’s not. And this is what has Kirby Dick, and the many directors or film critics he interviews in the documentary, up in arms.
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In Part 1 of this series, I argued that the Democratic Party seems to be gradually abandoning whatever claim it once had to being the party of the First Amendment. Regrettably, examples of Democrats selling out the First Amendment are becoming more prevalent and the few champions of freedom of speech and expression left in the party are getting more difficult to find.
For example, in my previous essay, I documented how Democratic politicians were leading the charge to reinstitute the so-called Fairness Doctrine. In today’s entry I will discuss how Democrats are now working hand-in-hand with Republicans to orchestrate what would constitute the most significant expansion of content regulation in decades–the regulation of “excessive violence” on television.
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The idea that the Democrats are the party of free speech and the great protectors of our nation’s First Amendment heritage has always been a bit of a myth. In reality, when you study battles over freedom of speech and expression throughout American history you quickly come to realize that there are plenty of people in both parties would like to serve as the den mothers of the American citizenry. That being said, it is generally true that there have been a few more voices in the Democratic party willing to stand in opposition to governmental attempts to regulate speech in the past.
But I’m starting to wonder where even that handful of First Amendment champions has gone. Sadly, examples of Democrats selling out the First Amendment are becoming so common that I’ve decided to start a new series to highlight recent examples of Dems actually leading the charge for increased government regulation of speech and expression. I want to stress that I’m not trying to pick on Democrats here, rather, I’m just trying to point out that–unless there is a sea change in their approach to these issues by Democrats in coming months and years–both parties now appear to be singing out of the same pro-regulatory hymnal. This constitutes an ominous threat to the future of free expression.
Today, as part of this new series, I’ll be focusing on the Democratic-led efforts to revive the hideously misnamed “Fairness Doctrine.”
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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.
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On Monday, October 9th, Sen. Joe Lieberman (D-CT) delivered a major address about Internet content and online child safety that was intended to serve as a sort of call-to-arms for policymakers, parents and industry to get more serious about the issue.
In his wide-ranging remarks, Lieberman bemoaned the relentless pace of technological change and how the Internet and digital media technologies were making it increasingly difficult for parents to protect children from objectionable material or, worse yet, child predators. “The Internet is a wondrous, revolutionary medium,” Lieberman said. “But there is too often a thin line between the awe-inspiring and the simply awful, and with each new technological breakthrough, it seems that the opportunities for our children to fall into that awful gap grow greater and graver.”
In this essay, I will dissect Sen. Lieberman’s manifesto and provide a detailed response to his assertions and proposals. I feel this is necessary because his address touches on many of the major themes and proposals that are framing the debate over Internet regulation that is taking place in America today.
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I’ve just released a new paper entitled “Fact and Fiction in the Debate over Video Game Regulation.” At the state and local level, over 75 measures have been proposed that would regulate the electronic gaming sector in same fashion. More importantly, another new federal bill was introduced recently that would establish a federal enforcement regime for video games sales and require ongoing regulatory scrutiny of industry practices. S. 2126, the “Family Entertainment Protection Act” (FEPA), was introduced last December by Senators Hillary Clinton (D-NY), Joe Lieberman (D-CT), and Evan Bayh (D-IN) to limit the exposure of children to violent video games.
In my essay, I address several of the most common myths or misperceptions that are driving this push to regulate the electronic gaming sector. My general conclusions are as follows:
>> The industry’s ratings system is the most sophisticated, descriptive, and effective ratings system ever devised by any major media sector in America.
>> The vast majority of video games sold each year do not contain intense violence or sexual themes.
>> Just as every state law attempting to regulate video games so far has been struck down as unconstitutional, so too will the FEPA.
>> The FEPA could derail the industry’s voluntary ratings system and necessitate the adoption of a federally mandated regulatory regime / ratings system.
>> No correlation between video games and aggressive behavior has been proven. Moreover, almost every social / cultural indicator of importance has been improving in recent years and decades even as media exposure and video game use among youth has increased.
>> Video games might have some beneficial effects–especially of a cathartic nature–that critics often overlook. And, contrary to what some critics claim, violent themes and images have been part of literature and media for centuries.
I encourage you to read the entire paper for more details. It can be found online here: http://www.pff.org/issues-pubs/pops/pop13.7videogames.pdf
Senator Hillary Clinton (D-NY) proposed new legislation on Thursday that would make it a federal offense for retailers to sell a minor a video game that includes violent or sexual themes. Her bill would impose a $5000 fine on any retailer that sold a youngster a game that was classified as mature or violent under the video game industry’s voluntary ratings system.
The Clinton bill might best be thought of as a “hanging the industry with its own rope” regulatory scheme. That is, her bill would hijack the industry’s voluntary ratings system and then use it against them (and retailers) should someone choose to sell a game with mature or violent themes to someone under the age of 18.
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