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!