A few days ago I posted an open letter to New York Gov. David Patterson about a measure that recently passed through the New York legislature and was awaiting his signature. The bill proposes a new regulatory regime for video games that would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry. Unfortunately—but quite unsurprisingly—Gov. Patterson signed the bill last night. And so I am certain that another legal battle will ensue regarding the constitutionality of the measure, and it will likely be struck down like every other measure on this front because it violates the First Amendment. Regardless, let’s talk a little more about what animates this specific legislative effort, because I think it is very important and foreshadows the heated debate to come over video games and all media in coming years.

The New York measure is notable in that, unlike most of the other state or local measures that had been stuck down in recent years that proposed penalties for the sale of games to youngsters which were labeled by the ESRB to be intended for an older audience, it simply proposed more “oversight” of the ratings process and parental control technologies by the state. Specifically, it mandated that all games be rated and that all consoles contain screening controls. The response to that proposal has generally been: “So what?” After all, all video games are rated already and all game consoles contain parental controls. The measure also mandated a 16-member oversight board to monitor the industry and this process. Again, that proposal was not regarded by many as a serious threat to the video games or free speech.

But I fear that many are missing the big picture here. The New York bill is actually far more important that many people suspect because of what it foreshadows: A day when politicians will claim that we can make rating systems more “scientific” by putting public health bureaucrats or university social scientists in charge of them. Indeed, last night on Bloomberg TV, this became the focus of a debate between me and Dr. Michael Rich, Director of the Center for Media and Child Health at the Harvard Medical School. After you watch the clip, I’ll have much more to say about this issue down below the fold.

As you heard in the clip, Dr. Rich favors a greater role for “science” and social scientists in the video game rating and labeling process. But let’s explore what that might mean in practice.

Over the past decade, I have heard many critics make the argument that media rating and labeling systems should be centralized in the hands of the government, some academic elites, a private (non-industry affiliated) rating organization, or some combination of all of the above. These critics often give lip service to private, voluntary rating systems but they then turn around and advocate that the entire process be run by people (usually closely resembling themselves!) who would somehow rate media according to more “scientific” criteria / variables.

The problem here is that media content is art, and art is fundamentally subjective. It’s not like there is some sort of Periodic Table of Media Elements that tells us what makes for good vs. bad art. Media ratings and labels, therefore, will always be based on 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.

Thus, even if a bunch of social scientists at Harvard were running the show, the media rating and content-labeling process will never be an exact science; there will always be something fundamentally subjective about it. Incidentally, exactly which “social scientists” would get a say in the process? Psychologists? Sociologists? Political scientists? Criminologists? Hey, what about art historians! I can almost see a joke in the making here: “How many Harvard social scientists does it take to rate a video game?”

But Dr. Rich and others like him would likely argue that some forms of media or art have unique influences on the development of the mind—especially the minds of children. They would argue, for example, that exposure to certain forms of violent media content will breed aggressive behavior in youth, or at least make them more desensitized and fearful of the world around them.

For the sake of brevity, I am not going to go into my typical long-winded discussion here about “media effects” vs. “catharsis effect.” Instead I will just reference the latest of my many essays on the topic (“Why hasn’t violent media turned us into a nation of killers?”) and I also recommend that you read my review of the excellent new book, Grand Theft Childhood: The Surprising Truth About Violent Video Games and What Parents Can Do,” by Lawrence Kutner, PhD, and Cheryl K. Olson, ScD, cofounders and directors of the Harvard Medical School Center for Mental Health and Media. (As you will see when you read the book, apparently not everyone at Harvard agrees with Dr. Rich! That also makes one wonder how much actual consensus there would be in the scientific community about the ratings and labels they would be imposing on artistic expression.)

OK, so let’s just imagine that those social scientists who espouse “monkey see, monkey do” theories of media effects somehow get a say in rating and labeling video games. Think about what that would mean in practice. Imagine how long it would take a game like “Halo,” “Gears of War,” or “Grand Theft Auto” to get through that review process. And imagine what the warning label on the box would look like once they were done! They’d probably affix a 10-page memo to each game carton and then a poison (skull-and-crossbones) logo for good measure. Or perhaps the label would come in form of a Surgeon General’s warning about the product being hazardous to one’s (mental) health?

In the end, the whole system would become an unworkable farce if mandated by government. Nothing would be getting rated and to market in a timely way. Game developers would be in open revolt against it. And industry lawsuits would be flying.

More importantly, few people would likely use it. Many media critics seem to forget that there is trade-off between convenience and comprehensiveness in terms of rating and labeling systems. As Kutner and Olson note in their book: “The more complicated a system becomes, the less likely busy parents are to understand it and to actually use it.” We have to be careful not to upset this balance. In my opinion, the current ESRB game rating system pushes the labeling process just about as far as it can go on the comprehensiveness scale, but does so using easy-to-comprehend ratings (7 of them) and content descriptors (over 30 of them). When media critics and social scientists say they want to make the system even more “comprehensive” and “scientific,” therefore, I really have to wonder if they have thought through the practical implications of such a move. Exactly how many more ratings and labels are we talking about? Exactly how much more detailed could it be than the ESRB’s existing system, which already has 12 different content descriptors for violent content alone (from “cartoon violence” to “sexual violence” and everything in between).

Another point: The argument that government or “ratings by social scientists” would provide more objective ratings is also undermined by the grim reality of special-interest politics. Government officials or government-appointed commissions would be more susceptible to various interest group pressures as they were repeatedly lobbied to change ratings or restrict content based on widely varying objectives and values. Inevitably, as has been the case with the broadcast indecency complaint process in recent years, a handful of particularly vociferous groups could gain undue influence over content decisions. That possible outcome raises what the Supreme Court has referred to as the “heckler’s veto” problem since a vocal minority’s preferences could trump those of the public at large.

Now let me be perfectly clear about one thing: I have absolutely no problem whatsoever with folks like Dr. Rich and his colleagues devising some sort of “scientific” rating or labeling scheme for video games and other forms media content. But the fundamental question in this debate is: should such a system should be the law of the land?

In my book on Parental Controls and Online Child Protection, I spend a great deal of time in Chapter 2 talking about the importance of third-party ratings and pressure and I heap a lot of praise on the various independent, third-party content rating and labeling systems out there today. In particular, my wife and I absolute love Common Sense Media and rely on its ratings every week when we are consider what media to allow our kids to consume in our home. It’s a great system that is highly informative; and the feedback from average parents and kids on the site is very helpful too. Other great 3rd party rating and labeling services just for video games include: What They Play, Gamer Dad, and Children’s Technology Review, all of which provide detailed video game reviews and information about the specific types of content that kids will see or hear in a game. [Incidentally, the ESRB has a section on its webpage that highlights all these independent sites.]

So here’s the question for Dr. Rich and the folks in the social science community: Why not just create your own “shadow” ratings process or collaborate with these other organizations to serve a worthy “watchdog” role over the existing rating and labeling process? That’s the win-win solution here.

It would be a huge mistake to throw out the existing ESRB system. It is working very effectively and it is already widely recognized by the vast majority of parents. Surveys by Peter D. Hart Research Associates reveal that 89% of American parents of children who play video games are aware of the ESRB ratings and that 85% of them consult the ratings regularly when buying games for their families. That’s pretty impressive considering how young the ESRB rating system is.

Moreover, let’s not forget that every game console and computer system on the market today is geared to read the ESRB ratings metadata (digital tags) that are embedded in every game shipped to market. That’s how the parental controls are enabled. Should we toss all that work out the window and just start from scratch? I think that would be a huge mistake.

Again, there is nothing stopping Dr. Rich and his fellow social scientists from crafting their own system. In fact, I believe I speak for many parents when I say we would welcome it. But mandating it and asking that it serve as a replacement for the existing ratings and console controls is an completely different issue. It’s a non-starter in my opinion.

Now that the New York bill has passed, however, the door is open for this sort of proposal to see the light of day. If the measure is not struck down, watch to see who is appointed to the 16-member advisory committee and listen to hear which way they are going. I bet it ends up being something along the lines of what I have suggested above.

To: Hon. David Patterson, Governor, State of New York From: Adam Thierer, life-long gamer and Senior Fellow at the Progress & Freedom Foundation Date: July 17, 2008 Re: That video game bill (A. 11717/ S. 6401) you have been asked to sign

Dear Gov. Patterson:

I write today to ask a few questions about a measure that is currently sitting on your desk awaiting your signature. The measure (A. 11717/ S. 6401), which recently passed through the New York legislature, proposes a new regulatory regime for video games. It would include greater state-based oversight of video game labels and console controls as well as an advisory board to monitor the industry.

As a life-long gamer—and now the parent of two young gamers—this is a subject I care deeply about. I also come at this topic from an academic perspective as someone who analyzes the intersection of child safety concerns and free speech issues surrounding various types of media and communications technologies. I am the author of a frequently-updated book, Parental Controls & Online Child Safety: A Survey of Tools & Methods, which provides a comprehensive look at the many tools and methods on the market today that can help parents deal with concerns about objectionable media content.

But mostly I write you today from the perspective of someone who just enjoys games. Actually, let me clarify that: I am utterly infatuated with video games. Gaming has been a life-long passion of mine and something I have enjoyed with friends and family since I owned my very first PONG and Atari 2600 systems in the 1970s. Since then, I have owned virtually every major video game console sold in the United States. Even today, as I approach 40 years of age, I find myself sitting down many nights to enjoy games with my son and daughter on the Xbox 360 and Sony PS3 consoles that we have in our home.

Like millions of other Americans, 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. And, although I am certain that the New York legislature had the best of intentions in mind when passing this bill, I believe I speak for a great number of those other American gamers when I say that the measure on your desk is somewhat of an insult to our intelligence. Let me explain by raising a few questions about this bill, which I will argue is unnecessary, unworkable, and unconstitutional: •
Why does this bill impose mandatory labeling requirements when all video games sold at retail are already clearly rated and labeled? The bill demands that every game bear labels describing its content, but such a labeling scheme already exists. As any parent or game buyer can tell you, every video game container has detailed content descriptors on the cover that clearly tell you what you can expect to see or hear in the game. These ratings and labels, which are created and enforced by the Entertainment Software Rating Board (ESRB), are highly specialized. The ESRB applies seven different rating symbols and over 30 different content descriptors to every game it rates. Since the New York bill is particularly concerned about the labeling of violent content, you should be aware that the ESRB has over a dozen descriptors just for violent forms of content. That makes it perfectly clear to the parent if the game contains merely “mild violence” or “cartoon violence” or, at the other extreme, “intense violence” or “sexual violence.”

Does the New York legislature imagine that parents are unaware of these ratings or labels? Frankly, I don’t see how anyone could miss them. Again, they are on every game box and can be found online via the ESRB’s website or other gaming sites and media watchdog sites. And survey data shows that parents are aware of these labels. Surveys by Peter D. Hart Research Associates reveal that 89% of American parents of children who play video games are aware of the ESRB ratings and that 85% consult the ratings regularly when buying games for their families. And those numbers have risen every year for the past decade. The Federal Trade Commission has also praised the industry for those ratings and descriptors and for the industry’s efforts to make the public more aware of them.

In light of these facts, why does the New York legislature believe any additional labeling requirements are necessary?

•
Why does this bill require mandatory parental controls when every gaming console already includes them? The bill also requires that every new video game console be equipped with technology that can allow parents to block access to certain video game content. Well, Governor, I have good news to report… those tools already exist! Every new console (Microsoft Xbox 360, Sony PS3, and Nintendo Wii) recognizes the ESRB’s digitally embedded ratings in games and offers blocking tools that allow parents to prevent games rated above a certain designation from being played on the system. These tools are quite sophisticated, and parents can even employ additional controls to block online purchases and interactive chat while their kids are gaming.

Again, does the New York legislature imagine that parents are unaware of these controls? That’s equally hard to fathom in light of how easy it is to find and set up these controls. Moreover, the industry has spent a great deal of time and money promoting these controls and making the public aware of them.

•
Isn’t the New York legislature aware of the fact that parents spend good money on consoles and games? In my book on Parental Controls & Online Child Safety, I note that the ultimate parental control tool is the “power of the purse” that parents can exercise when their kids come to them asking for money for new media titles or technologies. Although this isn’t a fact that the video game likes to advertise about itself, one of the reasons that its ratings and parental controls have been so much more effective than the systems that preceded them is because the price tag is so much higher than other media! New consoles cost hundreds of dollars, and most new game titles retail for $40 to $60.

Few parents would blindly hand their children that sort of money and leave their kids free to purchase whatever they desire. Thus, when kids ask for gaming consoles or game titles that cost that much, it creates a heightened sense of interest or concern by parents about what it is that their child is consuming. Again, in light of this fact, why does the New York legislature feel it must act in loco parentis?

•
Why an “advisory council” just for video games? The bill also calls for a 16-member “Advisory Council on Interactive Media and Youth Violence” that would study whether there is a relationship between gaming and youth violence. It’s tough to be against anyone “studying” anything, but one wonders if the body would become a politicized mess with endless in-fighting about a topic that has already been exhaustively researched and debated in other venues. Moreover, if we are simply hoping for still more “study” of this issue, let’s not forget that some of the nation’s finest universities reside in the State of New York! Why not just let one of them convene events or task forces to study this issue?

More importantly, why is it that video games are being singled-out for oversight by a state-run commission when other media providers have no similar overseers? Why not an advisory council for books, for example? After all, they can be checked out of any library free-of-charge, and there are plenty of titles in most libraries that include violent themes.

Finally, what sort of authority does this advisory council possess? Will it become a taxpayer-supported platform for anti-gaming activism that is masqueraded as social science? Will it seek to compel game developers to self-censor content that many in the gaming public demand? Will the focus and powers of this advisory entity grow over time? What is to prevent that from happening?

•
Isn’t the New York legislature aware that federal oversight already takes place? For over a decade, the Federal Trade Commission has been monitoring the video game industry’s practices. The FTC has also issued a reoccurring report, Marketing Violent Entertainment to Children, which surveys the marketing and advertising practices of major media sectors. As mentioned, the video game industry has been praised by the FTC for its improved efforts to curb underage access to objectionable materials. Why, then, is state-level regulation necessary? And will New York’s effort spawn additional state-based “oversight” efforts leading to a patchwork of conflicting state standards or expectations about game content or game industry behavior?

•
Do we really need another constitutional catfight? This measure will almost certainly be litigated. A dozen federal courts have ruled that video game content represents constitutionally protected speech and that efforts to regulate that speech will be subjected to strict scrutiny. The concerns I have raised above each present an issue or angle that could be challenged in court. So, get ready for another lengthy, unnecessary legal battle. The state will likely lose and then also be on the hook for the industry’s attorney’s fees. Which begs a final question…

•
Aren’t there better ways to spend the money? Every dollar spent by both industry and government litigating these issues is a dollar that could have been spent on something else. Similarly, every dollar spent by the advisory council is a dollar that could have been spent elsewhere. Here’s an idea: Instead of wasting the money on litigation and advisory councils that will accomplish nothing, how about a commitment by both industry and government to redouble their efforts to make consumers more aware of the excellent parental controls and labeling system already at their disposal?

In recent years, the game industry has been partnering with federal and state lawmakers to run public service announcements of that variety. And the industry has also stepped up the production and dissemination of promotional materials to build awareness of parental control tools. The more of that the better. That is the constructive, constitutional solution. Education—not regulation—is the path forward.

Gov. Patterson, I do hope you will take these facts under consideration as you sit down to contemplate signing this measure. Countless gamers, and even gaming parents, are growing tired of the seemingly endless witch hunt surrounding video games. The moral panic and rush to regulate on this front is all too reminiscent of past battles over comic books, rock-and-roll music, cinema, and so on. If we learned anything from those episodes it is this: Moral panics and regulatory responses are never the best way to respond to concerns about objectionable content or child safety.

Instead, we must be willing to talk to our kids in an open, understanding and loving fashion about the realities of this world, including the distasteful bits. And, to the extent curbs on underage consumption of potentially objectionable media are necessary, that process should be driven by voluntary, not compulsory, efforts. That includes industry self-regulation, voluntary content labeling efforts, a variety of parental control tools, and education and awareness-building initiatives. Most importantly, we should trust parents to do the job of rearing their children and not expect the State of New York to serve as our national nanny.

Time Warner, Verizon, and Sprint will restrict access to tens of thousands of Newsgroups in order to stem illegal child pornography as part of an agreement with New York State Attorney General Andrew Cuomo announced yesterday. Although ISPs have no obligation to provide newsgroup access, and there are plenty of alternative methods for users to browse Usenet discussion groups, the agreement raises serious Constitutional questions.

The agreement is supposedly “voluntary,” but this doesn’t necessarily resolve all First Amendment concerns. Hans Bader, CEI’s Counsel for Special Projects, posted a good overview on the Constitutional implications of the New York announcement over at OpenMarket.org:

“In truth, the settlement blocking access to newsgroups is not really “voluntary.”  It’s the coercive result of threats of litigation from the New York Attorney General’s office.  Supposedly “voluntary” settlements can constitute government regulation that violates the constitution.   The Supreme Court has said that even a State’s “contractual condition” is subject to constitutional scrutiny (See South-Central Timber Dev. Co. v. Wunnicke, 467 U.S. 87, 97 n.10 (1984)), and federal appeals courts have observed that the fact that a state official and a business “have entered into an agreement does not necessarily insulate it from scrutiny under” the Constitution.  (See Automated Salvage Transport, Inc. v. Wheelabrator Ent’l Sys. Inc., 155 F.3d 59, 78 (2d Cir. 1998)).  And a “voluntary agreement” incorporated into a consent decree can constitute state regulation that is preempted by federal law, as the Supreme Court observed in 1981.  (Ridgway v. Ridgway, 454 U.S. 46, 47, 53 (1981)).

This isn’t the first time Andrew Cuomo has pressured firms to engage in online censorship. Back in October 2007, I discussed how Facebook “voluntarily” agreed to censor user content to reduce the chances that minors would encounter obscene images.

Mr. Cuomo seems awfully effective at persuading providers to curtail user speech–perhaps he made an offer the ISPs couldn’t refuse.