In my July essay on “Understanding The True Cost of Video Game Censorship Efforts,” I pointed out how outrageous it was that politicians continue to burn money on fruitless regulatory measures that are destined to be struck down as unconstitutional. I argued that the nearly $2 million in legal fees and expenses recovered by the video game industry after winning its legal cases against various governments could have been spent much better by public policy makers:

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.

Well, that opportunity cost / deadweight loss grew even higher today when the state of California reimbursed the Entertainment Software Association (ESA) $282,794 for attorney’s fees after losing a recent legal battle in the case Video Software Dealers Association v. Schwarzenegger. The ESA sent out a press release about the case today that dramatically points out the opportunity cost of such regulation:

The ESA noted that this payment comes at an especially troubling time for the state, calling to mind other pressing budgetary and legislative priorities and issues, including: * California is currently facing a $15-billion budget gap * More than 10,000 California state employees were laid off last week in light of the budget crisis * Governor Schwarzenegger is seeking to cut wages for nearly 200,000 state employees * The state already cut 10 percent to its Medicaid reimbursement rate and deferred payments to vendors “Caregivers are not well-served by court battles and legal fees. Rather, they would have been far better off if state officials worked together with our industry to raise awareness about video game ratings and the parental controls available on all new game consoles — both of which help ensure that the games children play are parent-approved.”

Indeed. And yet, the video game censorship bandwagon rolls on. Will it never end?

Each year the Entertainment Software Association (ESA), which represents the video game and computer game industry, produces a great little report entitled “Essential Facts About the Computer and Video Game Industry.” The 2008 edition is out and it has some interesting stats:

• 65 percent of American households play computer and video games;
• 38 percent of American homes have a video game console;
• The average game player is 35 years old;
• One out of four gamers are over age 50;
• Women age 18 or older represent a significantly greater portion of the game-playing population (33 percent) than boys age 17 or younger (18 percent); and,
• 41 percent of Americans expect to purchase one or more games this year.

Those findings make it clear that gaming really has gone mainstream. As I noted in an essay earlier this week, “gaming is now fully integrated into the fabric of my life and the lives of my children. It has become one of the most enjoyable media experiences for my generation and the generation of kids that we are raising.”

Some other important stats that have relevance for debates about public policy:

• 94 percent of parents are present when games are purchased or rented;
• 88 percent of parents report always or sometimes monitoring the games their children play; and,
• 63 percent of parents believe games are a positive part of their children’s lives.

Those are impressive numbers, and it makes it clear, as I have argued before, that parents are parenting! (And that reflects what is going on for television as well).

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.

Over at the popular gaming site 1up.com, a gentleman who worked briefly for the Entertainment Software Rating Board (ESRB) has posted a provocative article entitled, “How to Fix the Game Ratings System: An insider’s take on what’s wrong with the ESRB.” In the piece, Jerry Bonner, who worked at the ESRB for 6 months according to GamePolitics.com, argues that “Something desperately needs to happen [to reform the ESRB] because the alternative — a government mandated and controlled rating scheme — is a downright frightening concept.” He continues:

“let’s fix [the ESRB ratings process] before things really get out of hand and a new government-appointed ‘Secretary of Interactive Entertainment’ is making the decisions as to what we can and can’t play. I know I don’t want that. I know you don’t want that. And I know that the people at the ESRB don’t want that. Let’s all make damn sure it doesn’t happen, shall we?”

Well, I can certainly agree with Mr. Bonner that a “Secretary of Interactive Entertainment,” or any sort of extensive government regulation of video games, is a very frightening prospect. The problem is, the “solutions” he outlines in his essay could actual put us on that path.

Re-shuffling ratings & discarding labels

Consider his first recommendation:

the ESRB’s ratings system desperately needs to be updated.” .. “The ESRB should be flexible, ready to change quickly or move forward as fast as this rapidly evolving industry. They did adopt the E10+ rating in 2005 and hired six full-time raters this past spring. While these changes are nice, I believe they need to go a bit further.

Well, as he points out, the ESRB system has been updated occasionally, and it will almost certainly continue to evolve in the future as needed. But Mr. Bonner has two suggested changes that he says will immediately improve the system. First, he wants the “Adults Only” (“AO”) rating wiped out and the current ratings scale adjusted such that Mature (“M”) becomes the new AO:

My suggestion is this: Change the letter ratings to E(veryone), E(veryone)10+, T(een)13, T(een)16, and M(ature). AO goes the way of the dodo and Mature now becomes the top of the scale, recommending that players be 18 and older to purchase.

His rationale is that the Adults Only rating has become the equivalent of the death penalty for some games since they cannot be played on major consoles or sold in store due to voluntary commitments. In one sense, that is a fair point. How can adults who want to play adult-rated games play them? The answer, of course is: on a PC. But there will be increasing pressure on console makers to change that policy to accommodate adult-only households.

But wouldn’t the better approach here be to just lobby console makers for some flexibility in that regard? Why screw with the ratings system? Indeed, the change Mr. Bonner suggests will invite far more pressure by critics and lawmakers for oversight or direct regulation of games since they will make the old “ratings creep” argument and say that the industry has done little more than water-down the upper ratings designations in an attempt to make AO-rated games more accessible.

Moreover, whether any of us care to admit it, the fact that AO-rated games are currently kept off the major consoles and off the shelves at some major retailers (ex: Wal-Mart and Target) is probably the most important thing holding back a full-on legislative assault on video games. Still, I think Mr. Bonner makes a fair point about finding a way to accommodate AO games, but his solution would lead to undesirable results in the form of even more pressure from critics and politicians on game makers and the ESRB.

Mr. Bonner also says that, “My other strong suggestion is to do away with the static content descriptors (“cartoon violence,” etc.) and use a more free-form approach like the Motion Picture Association of America, which tailors its descriptors for specific movie content.” I could not disagree more. The more than 30 content descriptors that ESRB applies to games provide consumers (especially parents) with highly detailed information about the games they are buying or letting their kids play. By simply glancing at the back of each game container, parents can quickly gauge the appropriateness of each title for their children. How can that be a bad thing? The more information the better, I say.

Play It All?

Mr. Bonner’s second recommendation is that “raters play the games to completion and carefully log their findings throughout the playtest.” He argues:

What the general public may not know is that the ESRB’s current pool of full-time raters (six people: three men and three women) does not actually play the games that they rate. They just watch submitted videotapes or DVDs of someone else playing the game. Now, when the switch was made from the use of a large pool of part-time raters to the current group of full-timers, the ESRB did decide to have the full-time raters actually play games as well, but these were rarely games that we dealt with in the rating process. They were just “random” titles from the vast ESRB archive, culled for busywork. And the raters were only required to play the games for four hours, anyway. For some titles, this is more than enough; for others, it is woefully inadequate.

Let’s get serious. Games are not linear media like TV shows or movies. Gameplay is highly unique and multi-dimensional, and often there is no clear “end” to the game. Raters would have to spend days–perhaps weeks–trying to “finish” some titles. This just isn’t practical. But Mr. Bonner anticipates this response:

I’ve already heard the ESRB’s argument on this one: “That’ll take way too long and it will compromise our turn-around time.” My solution to that is simple: Hire more people. The ESRB is a relatively small organization with about 30 full-time employees. This can be bolstered a bit, and I’m sure the developers and publishers can wait an extra week or so for their ratings if they know that a better, more thorough job is being done.

Mr. Bonner is underestimating the challenge at hand here. The ESRB would have to hire a small army of new, full-time raters to play ALL games ALL the way through, whatever that means. Who’s going to pay for all that manpower? Answer: Gaming companies. And they aren’t going to be very happy about it. Many developers are already seriously pissed off about having their artistic endeavors rated at all. This would make them even more angry. More importantly, it would likely slow down a system that is fairly responsive right now. Are game developers or gamers themselves going to tolerate weeks of delay waiting for raters to play a game “all the way through”? I don’t think so.

Transparency: The Unintended Consequences

It’s nearly impossible to be against transparency, no matter what the context. The more visibility about a process, the better. So, in one sense, it’s easy to sympathize with another of Mr. Bonner’s recommendations: Make the ESRB less secretive. He says:

I never understood why the board was so secretive about their modus operandi and why we, as raters, couldn’t be known to the general public or ever speak to a reporter. I finally asked about this and was told that it was for our protection, to ‘save’ us from unscrupulous publishers or journalists who might offer us money for a favorable rating or some inside information. The idea of it sounded absurd to me — people going to those shady lengths over game ratings? Seemed a bit excessive. Realistically, there is nothing to hide at the ESRB. Everything was above board as far as I could tell and all the employees are well-adjusted adults who can handle themselves in complicated situations. But by acting in a secretive, mysterious way, the ESRB creates an appearance of impropriety. This serves no purpose. And if the day does come when the ESRB drops the curtain, then the general public would be in a position to offer its own ideas on improving the system as well.

But let’s think this through a bit because there are actually some very good reasons for the ESRB–or any official rating system for that matter–to not be perfectly open as Mr. Bonner suggests.

With private, independent rating and labeling systems, those assigning ratings or labels are intentionally isolated from lobbying or other interest group pressures. If greater “transparency” meant forcing raters to be exposed to endless special-interest lobbying or other pressures, one wonders if that would really produce a better system. It would more likely produce a system that bowed to those pressures when they became intense enough.

For example, if those assigning video game ratings weren’t anonymous, they might be harassed by both game developers (who want to make them more lax) and game critics (who want to make them more stringent). This does not mean the raters ignore public input. To the contrary, most private rating boards and labeling bodies poll the public and monitor what critics are saying to adjust their systems occasionally. But if the ESRB was forced to make their ratings process completely open to anyone who cared to provide input (including the public policymakers themselves), it would result in a circus-like atmosphere and little content would get rated in a timely manner.

Think about it. Imagine if the ESRB was required to put out a public notice before the next installment in the “Grand Theft Auto” series was about to be rated. The raters would assemble in a public place and “play the game all the way through” in front of whoever cared to show up. Then they were to vote on their rating for the game. Can you imagine? You’d have Jack Thompson screaming bloody murder (literally!) from one side of the aisle while the guys from Take-Two would be going nuts on the opposite side claiming their First Amendment rights were under fire. Pro-censorship groups like the Parents Television Council would simultaneously be cranking their e-mail complaint generation machines into overdrive and flooding the raters with online petitions telling the them to “think of the children” or else they were all going to hell. Not to be outdone, gamers would unite with a vengeance and start sending the raters all sorts of irate messages and pasting the raters’ images into online shooting gallery games, or worse. Again, it would be a complete circus. Meanwhile, nothing would get done in a timely way. The assignment of ratings would get back-logged, especially for controversial games that “deserve more consideration,” as critics would certainly demand.

Moreover, calling for more transparency in the ratings process actually leads us right back to the grim prospect of increased government oversight of the ratings process in ways Mr. Bonner has not considered. The Federal Trade Commission or Federal Communications Commission would likely be asked by Congress to “rate the raters” using some subjective socio-political scale. And you’d have the raters hauled in front of regulatory commissions and into congressional hearing rooms to “account for their actions.” Sen. Brownback and Sen. Clinton would engage in a heated war of words about who really loved our children more, and then they would both lambaste the raters for “not doing a better job” (i.e, for not censoring games).

So let’s be careful about calling for “transparency” without thinking through the consequences.

Ratings “Competition”

Mr. Bonner wraps up by suggesting that what the ESRB really needs is some competition in the ratings business:

Who is to say that some upstart entrepreneurs couldn’t contest the ESRB’s status, especially now? Who says that the ESRB has to be the only game in town? The threat alone of a competing ratings entity would force the ESRB to take a long, hard look at how they are doing things and, in turn, make the necessary changes to move forward. Some may say that a competing system would just confuse things further, that it could invite government regulation because politicians could claim that the industry no longer has the ability to field a single, dependable regulating body. But what I’m suggesting here is capitalism at its finest — the American Way, if you will. Compete or perish.

Well, I’m about as rabid of a capitalist as you will find and believe passionately in a “compete or perish” market system. But capitalism also depends on standards. Many businesses and business methods get built upon standards that bring certainty to the occasional chaos of the marketplace. And when it comes to official industry rating systems, standards make a great deal of sense. If you hope to build acceptance and awareness about a voluntary rating system, you need a certain amount of stability and scale. Everything needs to be rated according to a widely understood benchmark and then branded accordingly. That’s how you get people to use it–both the industry, who must affix the ratings to every game, and the public, who ultimately need consistent, reliable information.

Importantly, however, I am just talking about official industry rating systems here. There is no reason that other private systems cannot develop to supplement the official rating system. And I’m happy to report to Mr. Bonner that there is a lot of competition out there already in this regard. As I reported in my book on “Parental Controls & Online Child Protection,” a wonderful and growing diversity of independent game rating services exist today. Organizations such as Common Sense Media, What They Play, Gamer Dad, Children’s Technology Review and MediaWise “KidScore” provide detailed video game reviews and information about the specific types of content that kids will see or hear in a game. Parents can use information from those sites and services to verify ESRB game ratings independently, or just to get more details about what might be in the games they buy their kids.

But if Mr. Bonner seriously believes that an entirely different, competing rating system is going to develop from within the industry as an official alternative to the ESRB, I think he’s dreaming. Developers would never tolerate it. And, as he suggests, it would lead to more pressure from critics and regulators for a single government regulatory standard.

Final Thoughts

What critics consistently forget—or perhaps intentionally ignore—is that media rating and content-labeling efforts are not an exact science; they are fundamentally subjective exercises. Ratings are based on value judgments made by humans who all have somewhat different values. Those doing the rating are being asked to evaluate artistic expression and assign labels to it that provide the rest of us with some rough proxies about what is in that particular piece of art, or what age group should (or should not) be consuming it. In a sense, therefore, all rating systems will be inherently “flawed” since humans have different perspectives and values that they will use to label or classify content.

Much ink is spilled over how rating systems can be improved. Everyone seems to have their own ideas about what “the best” system would look like. But, at the end of the day, someone has to (1) create a standard and (2) enforce it as broadly as possible so that (3) the public accepts and uses it.

The ESRB has done that quite effectively in my opinion. In fact, in many ways, although it is the newest of all industry content rating and labeling schemes, the video game industry’s system is in many ways the most sophisticated, descriptive, and effective ratings system ever devised by any major media sector in America. Is it perfect? Of course not. Improvements can always be made, but we should not lose sight of the fact that the ESRB system (1) is highly descriptive, (2) rates virtually all game content sold today, and (3) is widely understood and used by game consumers and parents today.

We should not underestimate that accomplishment. And in seeking to refine or improve the system, we should be careful not to upset the current balance of things and open the door to excessive interference by pesky politicians and censorial-minded gaming critics.

UPDATE: There’s a very interesting discussion taking place over at GamePolitics.com about these issues.

GamePolitics.com reports on a murder trial in Alabama in which the attorney for a disturbed teenager is blaming video games for his barbaric behavior:

The lawyer for a man being tried for murder is trying to convince an Alabama jury that the defendant believed he was acting out a video game when he murdered an 80-year-old man on Halloween, 2005. As reported by the Decatur Daily, Andrew Reid Lackey, 24, does not dispute that he stabbed, shot and gouged out the eye of his victim, Charlie Newman. However, Lackey’s attorney, Randy Gladden, is pointing the finger at video games. From the newspaper report:

Actions that led to a deadly confrontation between a defendant and an 80-year-old widower resembled a video game to the accused… [Attorney] Gladden described Lackey… as a computer geek who had immersed himself in video games and lived in “a different world than you and I.”

Tapes of a 911 call made by the victim during the fatal confrontation, however, indicate that old-school greed may have been the motive. Lackey is heard to demand of the victim, ”Where’s the vault?” seven different times. Charlie Newman’s grandson had previously told Lackey that the victim kept a large sum of money in a vault under the stairs. However, no such vault existed.

It’s just disgraceful–but perhaps not all that surprising–that this desperate defense attorney would employ tactics like this. Video games have become the universal excuse du jour for violent behavior. It’s absurd for all the reasons I have pointed out here before. It’s abundantly clear that old fashion greed and a disturbed mind motivated this particular crime, and if you think that sort of thing didn’t happen before video games came along, then you just haven’t read any history. Of course, they instead just blamed movies, comics, and books for the crimes back then! There’s always someone else or something else to blame. It’s the never-ending search for a universal scapegoat for irrational or criminal behavior. The twisted logic = Don’t blame the individual, blame the media.

Pathetic.

Anthony Prestia of Laws of Play, a blog dedicated to covering legal developments in the gaming industry, somehow got some face time with Supreme Court Justice Scalia and was able to ask for his feelings concerning the constitutionality of recent state video game legislation. “In particular,” Prestia says, “I asked him whether as an originalist he believed that state laws banning the sale of mature-rated video games to minors ran afoul of the First Amendment.” Here’s Prestia’s summary and analysis of Scalia’s answer:

In his most succinct reply of the day, 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. However, Justice Scalia emphasized that unprotected speech, such as obscenity–which he was unwilling to define for reasons that are immediately evident to any constitutional scholar–-can be prohibited from sale regardless of the purchaser’s age. I think the important thing to note here is that 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 despite his strict originalist beliefs.

That’s an interesting response in that Scalia’s latter comments imply that even older, more conservative judges are coming around to understanding how video games are a form of artistic expression deserving the protection of the First Amendment. But Scalia’s earlier suggestion that state laws banning sales of certain video games to minors maybe constitutional deserves a response.

Scalia is certainly correct that states have passed laws banning the sale of pornographic material to minors, but their are two important differences between those bans and a ban on the sale of video games to children. One is obvious: No video game has ever been defined as “obscene to minors.” Now, it may be the case that some game will be defined as such in the future. But for now, the primary concern about video games to sales has related to the violence in video games, not the sexual content. And violence has never been equated with obscenity, although Kevin W. Saunders of Michigan State University has been making the argument for many years that the two should be equated in an effort to ban violent video game sales. And there are others who agree with him. But no legislature or court has yet agreed with that reasoning. So, that’s the first difference that Scalia ignores.

The second difference Scalia ignores is the mechanism of controlling the sale of video games to children. Every legislature that has so far sought to regulate the sale of video games has proposed that the bans been linked to the sale of games rated a certain way by the game industry’s private rating body, the Entertainment Software Rating Board (ESRB). And every one of those measures has been struck down by the courts as unconstitutional. One of the reasons the laws have been overturned is because other court precedents have held that the state may not give a private, voluntary rating system the force of law.

Again, when state governments regulate obscenity, they are not doing so by co-opting some private industry rating system. In the case of video games, however, the states would seek to use “AO” (Adults Only) or even “M” (Mature) ratings that were assigned by the ESRB as the trigger for the law to kick in. That’s generally been forbidden by the courts when some states in the 1970s and 80s sought to use the movie industry’s private rating system (the MPAA system) to regulate or ban the showing of certain movies or their sale. The reason the courts have blocked such enactments is not just because it would be misguided to allow a private labeling code to become a tool of public censorship. The other reason is actually more compelling: As I pointed out in my big PFF study on video game regulation, if a state sought to use a voluntary rating system to ban certain types of content, it would likely kill voluntary rating systems:

why would game developers continue to voluntarily rate their content if the threat of fines or prosecution looms overhead? Fearing such liability, there is a real risk that many in the industry would likely stop rating games altogether since there would be no penalty for refusing to label content. If this were to occur, parents and all game consumers would lose valuable information about the age appropriateness and content of the games that they are thinking of buying.

So, these are just a few of the factors that Justice Scalia and the Supreme Court would need to consider if a case came before them dealing with the constitutionality of regulating video game sales to minors. This is not to say anyone is in favor of actually selling mature or adult-oriented games to minors. It’s just to say that there are more sensible (and constitutional) ways of handling this problem. Parents have many less-restrictive means of dealing with underage access to potentially objectionable games—such as the industry’s private rating and labeling system, third-party ratings and info, console-based controls, and the fact that they don’t have to buy the games in the first place! [See my study and parental controls book for more details on all these things.]

One of the things I find most interesting about calls to regulate “excessively violent” content on television, in movies, or in video games is the way critics make massive leaps of logic and draw outrageous conclusions based on myopic, anecdotal reasoning. I was reminded of that again today when reading through an interview with Sen. Jay Rockefeller (D-W.Va), one of the most vociferous critics of all sorts of media content and a long-time proponent of regulation to censor such violent content in particular (however it is defined). (I have written about his past regulatory proposals here and here).

Here’s what he recently told the editorial board of The Register-Herald of West Virginia:

Violent content has a way of desensitizing impressionable minds, he said, alluding more than once in the interview to school shootings, especially the horrific massacre at Virginia Tech. To buttress his point, the senator told of an 80-year-old World War II veteran who visited him at home and described his wartime experiences, how he helped blow up German troop trains. “He said that he just got numb, that he lost any feeling,” he said. “One thing was that he couldn’t see them. And that’s also true with troops on the ground. It gives them post-traumatic stress disorder.” Then the senator borrowed a line from Gen. George Patton’s obscenity-laced rallying speech to troops, about making the other man die for his country — except Rockefeller omitted the salty-tongue warrior’s allusion to the enemy’s paternity. “That is the point — you get immune to it,” he said.

Except that you don’t–at least not entirely, and Sen. Rockefeller’s examples prove that point. How is it, after all, that these brave soldiers witnessed and endured unspeakable acts of violence during those years and yet came home and became known as “The Greatest Generation”? They rebuilt post-war America and turned us into the greatest economic powerhouse on Planet Earth. But if we are to believe Sen. Rockefeller’s logic, they should have instead come home and turned America into a nation of murders, thieves, and thugs. After all, it’s “monkey see, monkey do,” right? If you witness violence, you will later perpetrate violence, or so the theory goes.

But, again, they didn’t. Why is that? It’s a really interesting question and it is one that many folks continue to ask with regards to exposure to violent media content in movies, TV shows or video games. After all, many people find something intuitively appealing about “monkey see, monkey do” explanations. Namely, it provides one possible and simplistic explanation for why some people do engage in violent behavior.

In reality, however, most humans possess a sort of moral compass or moral check on their behavior. They can witness something extremely violent–whether it is real or just a dramatization–and process that information in a rational way. Millions of soldiers throughout history have witnessed (and many have been forced to engage in) horrific acts of violence on a battlefield, and yet they would never think of carrying out those same acts on a public sidewalk. Similarly, millions of average folk have watched countless acts of violence in plays, movies, TV shows and games, and yet would never consider carrying out those same acts in public. Simply stated, most people can separate fantasy from reality–even children as they come to understand social norms about acceptable behavior.

I hate to use anecdotal reasoning here but I’m going to since I think my case is not unique. I grew up watching plenty of movies and TV shows jammed packed with senseless violence. In fact–and some people with think this is sick–my Dad and I used to have a fairly impressive horror movie collection on VHS tapes and would often discuss which “slasher movie” was better or had more blood. A little sadistic? Perhaps, but we found it all quite funny. The important point is that neither of us ever picked up a machete or a chainsaw and decided to take a stroll down to a summer camp to chop up teenagers! Same goes for the millions of other people who grew up enjoying those movies.

And where do I even begin to summarize how much violent video game content I have seen through the years? From my Atari 2600 in the late 70s to my current Xbox 360 and Sony PS3, I have probably played just about ever type of violent video game imaginable. The “Resident Evil” series was a favorite and I have played every one of them start to finish, but I enjoyed most of the popular “first-person shooter” games as well. Again, there are millions of others like me out there and somehow the vast majority of us grew up, got good jobs, created the Internet, so on and so forth. We didn’t take to the streets and start murdering each other just because we played a lot of Duke Nukem or Doom.

So, while the world isn’t perfect, it isn’t the hell-hole that the “monkey see, monkey do” media critics say it is either. Matter of fact, the world seems to be getting better in many important ways–and ways that it should not be if we are to believe all those “world-is-going-to-hell” critics. Just look at the facts about leading social indicators. A new article in Commentary magazine by Peter Wehner and Yuval Levin entitled “Crime, Drugs, Welfare—and Other Good News” points out that just about all the important social indicators (murder, rape, robbery, etc) have witnessed steady decreases. (I provide all the supporting statistics in this paper, starting on page 20). They point out that:

In attitudes toward education, drugs, abortion, religion, marriage, and divorce, the current generation of teenagers and young adults appears in many respects to be more culturally conservative than its immediate predecessors. To any who may have written off American society as incorrigibly corrupt and adrift, these young people offer a powerful reminder of the boundless inner resources still at our disposal, and of our constantly surprising national resilience.

Again, how can this be happening if violent media spawns violent minds and violent acts?! After all, there’s just as much violent media content out there today as there was in the past; some critics claim much more exists now than in the past. So how is it that the kids are alright? Why are things getting so much better when the “monkey see, monkey do” theorists tell us they should be getting so much worse?

The critics, like Sen. Rockefeller, have no answer. They just continue to arrogantly ride around on their moral high horses and tell us that were are all just ignorant sheep who are being programmed to be killers by the media that we enjoy.

In the real world, of course, the rest of of us just yawn, turn off the TV or video game, go to bed happy, and wake up the next day to live a normal, productive lives. Sen. Rockefeller and his fellow media critics should try doing the same thing and leave the rest of us alone.

The video game industry’s string of unbroken First Amendment court victories continued this week with a win in the case of Video Software Dealers Association v. Schwarzenegger. [Decision here.] In this case, the VSDA and the Entertainment Software Association brought a suit seeking a permanent injunction against a California law passed in October 2005 (A.B.1179), which would have blocked the sale of violent video games to those under 18. Offending retailers could have been fined for failure to comply with the law.

The court’s decision overturning the law was written by Judge Ronald Whyte and it echoed what every previous decision on this front has held, namely:

• “even though mere entertainment, are nonetheless protected by the First Amendment.” (p. 5) “[T]he Act is a content-based regulation and it is presumptively invalid.” (p. 12)

• “Neither the legislative findings nor the evidence submitted by [the State] suggest that the expression in violent video games is directed to inciting or producing imminent lawless action…. In addition, neither the legislative findings nor the evidence shows that playing violent video games immediately or necessarily results in real-world violence.” (p. 6) “[A]t this point, there has been no showing that violent video games as defined in the Act, in the absence of other violent media, cause injury to children.” (p. 15)

• “The State has also not shown that the Act will accomplish its goal of protecting the physical and psychological well-being of minors more effectively than the existing, narrower industry standards.” (p. 14) “To pass the strict scrutiny test, therefore, the state must demonstrate that the industry labeling standards, either alone or combined with technological controls that enable parents to limit which games their children play, do not equally address the state’s interest in protecting the physical and psychological well-being of children. The State has not demonstrated that the Act is narrowly tailored to address its purpose. Therefore, the Act cannot pass strict scrutiny.”

So, for those policy makers who have not been listening, let’s make it abundantly clear what this decision and the 10 slam-dunk decisions that came before it have ALL concluded:

(1) Video games are a form of expression protected by the First Amendment.

(2) Not a single court in America has supported the theory that a causal link exists between exposure to video games and real-world acts of actual violence.

(3) Parents have many less-restrictive means of dealing with underage access to potentially objectionable games–such as the industry’s private rating and labeling system, third-party ratings and info, console-based controls, and the fact that they don’t have to buy the games in the first place! [See my paper and book for more details on all these things.]

And, so, I’ll again ask the question that I have posed in every essay I write on this topic: When are state and local lawmakers going to stop wasting taxpayer dollars with unnecessary regulatory enactments and fruitless lawsuits aimed at censoring video games? After all, as I calculated before in this essay, the video game industry has recovered roughly $1.5 million in legal fees and that number doesn’t include all the money that state and local governments have wasted litigating these cases through the courts. All that money 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.

[As always, for the best coverage of this recent decision and its impact, check out the reports over on GamePolitics.com, like this, this, this, and this.]

Some lawmakers at the federal, state and local level have advocated video game industry regulation in the name of protecting children from potentially objectionable content, usually of a violent nature. In my opinion, the better approach–and one that doesn’t involve government censorship or regulation of games–is to empower parents to better make these decisions for their own families. And the key to that effort is an effective rating / labeling system for game content that parents understand and use.

Luckily, there are good signs that the video game industry’s voluntary ratings system–the ESRB (the Entertainment Software Rating Board)–is doing exactly that. The game industry established the ESRB in 1994 and it has rated thousands of games since then. (The ESRB estimates it rates over 1,000 games per year). Virtually every title produced by major game developers for retail sale today carries an ESRB rating and content descriptors. Generally speaking, the only games that do not carry ESRB ratings today are those developed by web amateurs that are freely traded or downloaded via the Internet.

The ESRB applies seven different rating symbols and over 30 different content “descriptors” that it uses to give consumers highly detailed information about games. Thus, by simply glancing at the back of each game container, parents can quickly gauge the appropriateness of the title for their children.

So, how effective is this system, as measured by parental awareness and usage of the ESRB ratings and labels? Since 1999, the ESRB has asked Peter D. Hart Research Associates to study that question and conduct polls asking parents if they are aware of the ESRB ratings and if they use them. As this chart illustrates, the results are impressive with both awareness and use growing rapidly since 1999:

Better yet, all gaming platforms and most PCs can read these ratings and labels and allow parents to block games rated above a certain level they find unacceptable. But the real strength of the ESRB’s ratings system lies in the content descriptors, which give parents plenty of warning about what they will see or hear in each title. That way, parents can talk to their kids about those games or just not buy them for their kids until they think they are ready.

The game industry deserves credit not only for creating such an excellent content rating / labeling system, but also putting significant resources into public education / awareness efforts to ensure parents know how to take advantage of it. So then, why are lawmakers continuing to waste millions of taxpayer dollars litigating unneeded regulatory efforts?

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.”

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!