By: Jennifer Huddleston and Juan Martin Londoño

This year the E3 conference streamed live over Twitch, YouTube, and other online platforms—a reality that highlights the growing importance of platforms and user-generated content to the gaming industry. From streaming content on Twitch, to sharing mods on Steam Workshop, or funding small developing studios on services such as Patreon or Kickstarter, user-generated content has proven vital for the gaming ecosystem. While these platforms have allowed space for creative interaction—which we saw on the livestreams chats during E3—the legal framework that allows all of this interaction is under threat, and changes to a critical internet law could spell Game Over for user-created gaming elements.

This law, “Section 230,” is foundational to all user-generated content on the internet. Section 230 protects platforms from lawsuits over both the content they host as well as their moderation decisions, giving them the freedom to curate and create the kind of environment that best fits its customers. This policy is under attack, however, from policymakers on both sides of the aisle. Some Democrats argue platforms are not moderating enough content, thus allowing hate speech and voter suppression to thrive, while some Republicans believe platforms are moderating too much, which promotes “cancel culture” and the limitation of free speech.

User-generated content and the platforms that host it have contributed significantly to the growth of the gaming industry since the early days of the internet. This growth has only accelerated during the pandemic, as in 2020 the gaming industry grew 20 percent to a whopping $180 billion market. But changing Section 230 could seriously disrupt user-generated engagement with gaming, making content moderation costlier and riskier for some of gamers’ favorite platforms.

An increased legal liability could mean a platform such as Twitch would face higher compliance costs due to the need to increase its moderation and legal teams. This cost would likely be transferred to creators through a revenue reduction or to viewers through rate hikes—resulting in less content and fewer users. Further, restrictions on moderation could lead to undesirable content and ultimately fewer users and advertisers—leading to more profit losses and less content. Ultimately, platforms might not be able to sustain themselves, leading to fewer platforms and opportunities for fans to engage. Platforms such as Twitch already face these problems, but for now they can determine the best solutions without heavy-handed government intervention or costly legal battles.

The impact of changing Section 230 goes beyond video content and could impact some increasingly popular fan creations that are further invigorating the industry. For example, the modding community, composed of gaming fans that modify existing games to create new experiences, often uses various online platforms to share their mods with other players. Modding has kept certain games relevant even years after their release, or propelled games’ popularity by introducing new ways to play them. Such is the case of Grand Theft Auto V’s roleplaying mod, or Arma III’s PlayerUnknown Battlegrounds mod, the inspiration of games such as Fortnite and Call of Duty: Warzone.

These modified games are often hosted on platforms such as Steam Workshop, Github, or on independently run community websites. These platforms are often free of charge, either as a complimentary service of a bigger product – in the case of Steam – or are supported purely by ad revenue and donations. Like streaming platforms and message boards, without Section 230 these services would face increased compliance costs or be unable to remove excessively violent, sexually explicit, or hateful content. The result could be that these new twists on old favorites never make it to consumers, as platforms are unable to host these creations and remain viable as businesses.

Changing or removing Section 230 protections would upend the complex and dynamic gaming environment on display during E3. It took decades of growth for gaming to establish itself as the new king of entertainment and it has defended itself from a variety of technopanics throughout the years. Pulling the plug on Section 230 could mean “Game Over” for the user-generated content that brings gamers so much fun.

Adam Thierer, Senior Research Fellow at the Mercatus Center discusses his recent working paper with coauthor Brent Skorup, A History of Cronyism and Capture in the Information Technology Sector. Thierer takes a look at how cronyism has manifested itself in technology and media markets — whether it be in the form of regulatory favoritism or tax privileges. Which tech companies are the worst offenders? What are the consequences for consumers? And, how does cronyism affect entrepreneurship over the long term?

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Related Links

• A History of Cronyism and Capture in the Information Technology Sector, Thierer
• Video: A History of Cronysim and Capture in the Information Technology Sector, Thierer
• Adam Thierer Biography, Mercatus Center
• Adam Thierer on Anti-Tech Grump Evgeny Morozov, Thierer

Today, the U.S. Supreme Court will hear arguments in Schwarzenegger v. EMA, a case that challenges California’s 2005 law banning the sale of “violent” video games to minors. The law has yet to take effect, as rulings by lower federal courts have found the law to be an unconstitutional violation of the First Amendment.

There’s little doubt that banning the sale of nearly any content to adults violates the protections of Free Speech, including, as decided last year, video depictions of cruelty to animals.

But over the years the Court has ruled that minors do not stand equal to adults when it comes to the First Amendment. The Court has upheld restrictions on the speech of students in and out of the classroom, for example, in the interest of preserving order in public schools.

And in the famous Pacifica case, the Court upheld fines levied against a radio station for airing the famous George Carlin monologue that, not-so-ironically, satirizes the FCC for banning seven particular words from being uttered over the public airwaves.

The basis for that decision was that children could be negatively influenced from hearing such language. And children have easy access to radio and TV, while parents had no effective way to keep particular broadcasts out of the house.

In today’s argument, California’s legal arguments center largely on another case, the Supreme Court’s 1968 decision in Ginsberg. There, the Court upheld state restrictions on the sale of pornography to minors, even though the material was protected speech for adult purchasers.

In Schwarzenegger v EMA, California is urging the Court to extend Ginsberg’s reasoning to include content that meets it definition for violent video games. The statute defines “violent video games” as those “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted” in a manner that “[a] reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors,” that is “patently offensive to prevailing standards in the community as to what is suitable for minors,” and that “causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.”

Ginsberg, the state argues in its brief, upheld a ban the sale of sexual content to minors because such content is dangerous to their development. So too, they argue here, with violent video games. (Parents and other adults, of course, could still buy the games for minors if the statute were to go into effect.)

Indeed, the state argues that such material has as much if not more of a negative impact on the development of children than does sexual material.

That, of course, is a question open to considerable debate. After the fact, the state cites a number of academic studies that find a correlation between violent video game exposure (including games, such as Super Mario Brothers, well outside the the California definition) and anti-social behavior. But, as excellent reply briefs from the Entertainment Merchants Association and a joint brief from the Progress and Freedom Foundation and the Electronic Frontier Foundation point out, the methodology in these studies has been roundly criticized.

Moreover, California doesn’t seem to understand that the statistical significance of a correlation does not necessarily translate to real-world behavior—correlation is not the same as causation, no matter how strong the statistics. And even the authors of the studies most relied on by the state recognize that it isn’t clear in which direction the correlation moves—are children who play violent video games more likely to have violent thoughts because they played the game, or are pre-existing violent thoughts what attracts them to the games?

Why Video Games? Why Now?

The Court may focus on those studies in its decision, but I have a different question. Why are California and other states picking on video games, and why now? That, to me, is the more interesting problem, one that gets little attention in the briefs and, I would guess, in the Court’s eventual decision.

Perhaps the why is obvious: as EMA’s brief points out, similar attacks have accompanied the rise in popularity of every new form of media to emerge throughout U.S. history.

The California statute … is the latest in a long history of overreactions to new expressive media. In the past, comic books, true-crime novels, movies, rock music, and other new media have all been accused of harming our youth. In each case, the perceived threat later proved unfounded. Video games are no different.

The PFF/EFF brief goes farther, accusing California legislators of succumbing to “moral panic, as lawmakers have so often done when confronted with the media of a new generation.”

Examples as varied as Greek classics, the Bible, the Brothers Grimm and Star Wars all suggest, EMA points out, that extreme–even gruesome–violence has always been a favorite subject of literature, often aimed specifically at children. As federal appellate judge Richard A. Posner wrote in rejecting a similar Indiana law, “Self defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young.”

But why now? The answer is, not surprisingly, Moore’s Law. Laws regulating the content or distribution of video games are a classic example of the conflict I described in The Laws of Disruption.

As technology has made video game graphics more realistic and lifelike, they have captured the attention—and here the nightmares—of regulators in the real world who equate what they see on the screen with behaviors that would clearly violate laws and norms of the real world. They don’t like what they see in games including Grand Theft Auto and Resident Evil, and their impulse is to find a way, somehow, to stop it, even if it’s only a simulation.

It was not that long ago—in my life time, in any case—that video games were still in their Neolithic Era. Consider Pong, the first home video game from Atari in 1975. It would take an imagination greater than mine to think of the batting of a block of monochrome pixels by a bar of pixels to be violent enough to corrupt youth; likewise the breaking of a wall of pixels one at a time in the follow-on game Breakout.

But a few years later, consider the commercial (courtesy of YouTube) for Activision’s ice hockey game.

The game promises to be one of the “roughest” video games ever, “battling for the puck” with “fierce body checking” and “ruthless tripping.” Just watching the players fight it out drives a meek-looking Phil Hartman into a frenzy; within a few seconds he seems ready to attack the clerk who teases him that he’s not yet ready for it.

But despite an ad that explicitly suggests a connection between playing (or even watching the game) and becoming violent, the actual graphical quality of the violence is so disconnected from visual reality that it never occurred to any state legislature to ban or otherwise restrict it.

Now fast-forward just a few short decades later to the imminent release of Xbox 360’s Kinetics and one of the games that takes advantage of it called Kinectimals.

Using Microsoft’s new sensor technology, realistically-rendered animals can be controlled simply by issuing voice commands or by mimicking the desired movements by standing in front of the images. It hardly seems possible that the same beings who invented Pong could have advanced to Kinectimals within the span of one human lifetime. But we did.

Coupled with new 3D technology and increasingly large, high-fidelity displays, video games have in the course of only a few decades and a few cycles of Moore’s Law, advanced to the point of challenging the cinematic qualities of movies. Indeed, games and films are converging, and now use much of the same technology to produce and to display. A new sub-genre of user-produced content involves taking the cinematic interludes within the games and using them to produce original films. After all, video game users today not only control game play but also lighting, camera angles, and point of view.

Why not? As Nicholas Negroponte would say, bits are bits.

So now that video games offer fidelity in imagery and movement that is comparable to film, the law has awakened to both their positive and negative impacts on those who interact with them. Since the First Amendment clearly doesn’t allow interference with the sale of violent content to adults, California focused on children. But it’s clear from the tone of the state’s brief that they just plain don’t like certain video games, just as they didn’t like certain movies and certain books in an early age of mass-market technologies. As before, they would like, if they could, to turn the clock back.

Of course that is always the response of the law to new technologies that challenge our conceptions of reality. The only difference between the comic book burnings of the 1950’s and the emotional responses of legislators today is the speed with which those new technologies are arriving. The killer apps come faster all the time. And with them, the counter-revolutionaries.

Frozen in Time, Lost in Relevance

Which is why the California statute suffers from another common and fatal flaw of laws attempting to hold back new technologies: early obsolescence. Even if the Supreme Court upholds the law, its effect will be minimal at best.

Why? Lost in the legal arguments (and reduced to a mere footnote in the EMA brief) is the impending anachronism of the California statute. It assumes a world, disappearing almost as quickly as it arrived, in which video games are imported into California as physical media in packages, and sold in retail stores.

Consider, for example, Section 1746.2:

Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18” outlined in black. The “18” shall have dimensions of no less than 2 inches by 2 inches. The “18” shall be displayed on the front face of the video game package.

But sales of video games in media form are rapidly declining as broadband connections make it possible for game developers and platform manufacturers to transport the software over the Internet. So even if the law is ruled constitutional, it will apply to an ever-shrinking portion of the video game market. There will soon be no “retail sale” and no “front face” of a “package” onto which to put a label in the first place.

These industry changes, of course, aren’t being made to evade laws like California’s. Digital distribution reduces costs and eliminates middlemen who add little or no value (the retailers, the packagers, the truckers). More to the point, they allow the companies to establish on-going relationships with their customers, which can be leveraged to selling add-on chapters and levels, on-line play, and the sale of related product and content, including films and movies.

The industry, in other words, is not only evolving in terms of sophistication and realism of the product. The same technologies are also scrambling its supply chain. And what is emerging as the new model for “games” is something in which California and other states have almost no regulatory interest.

So it seems an odd time to target legislation at a particular and disappearing version of the industry’s content and retail channels. Even if the Court upholds the California law, it will likely have little impact on the material at which it is aimed.

But that’s often the case with laws trying to manage the unpleasant social side effects of new technologies just as they become visible to the outside world. The pace of legal change can’t hope to keep up with the pace of technological change, making this law, like many others, out-of-date even before the ink is dry.

Which is not to say that the Supreme Court’s decision in this case won’t matter. Another feature of statutes like this, unfortunately, is a high likelihood of unintended consequences. The potential for the Court’s decision—pro or con–to do mischief in the future, however, to unrelated industries and dissimilar content, is legion.

For example? As the PFF/EFF brief points out, California and other states may try to extend the ban on sales to minors to online channels. But it isn’t so easy to determine the age of an online buyer as someone in your brick-and-mortar store. “Applying the law online would likely require mandatory age verification of all online gamers because the law prohibits any sale or rental to a minor,” PFF/EFF argues, “even if the vendor had no evidence that the buyer was a minor.” That feature of an earlier federal effort to control pornography online was the undoing of the statute.

But in the Supreme Court, and the lower courts who interpret its decisions, anything can happen, and usually does.

Who among us does not like the bitch about their least favorite journalists, or reporting that we find disagreeable? Indeed, we Americans are all armchair media critics at heart. That’s generally a healthy thing in a democracy, but how often do we step back and appreciate those who provide us with in-depth reporting and journalistic excellence? Not enough, I dare say. Perhaps my early pursuit of a career in journalism and a college degree in the subject has left me more sensitive to this, but I think it is important on occasion to send out a big “thank you” to those whose investigative reporting — especially on niche subjects — contributes greatly to societal knowledge and a better understanding of important issues.

In the case of journalist Dennis McCauley, long-time editor of Game Politics.com, I wish I would have gotten around to thanking him publicly sooner, because he has just announced his departure from Game Politics and the journalism profession in general. That’s a shame because Dennis was a trailblazer in a field that desperately needed attention from serious journalists.  Until Dennis came on the beat, no wait, strike that… until Dennis created the beat, most journalists just didn’t bother taking a serious look at “where politics and video games collide,” which is the motto of Game Politics.com (which is now part of the Entertainment Consumers Association). Before Dennis, most journalists looked a video games as a “kiddie” thing, and to the extent they reported on developments in this field at all, their stories where typically relegated to the back pages of most papers or magazines.  And there wasn’t much serious reporting by online sources either.

Dennis changed all that by taking a hard-nosed look at developments in this sector from multiple perspectives — the business side of video games, legal and political developments and perspectives, the consumer view on things, and so on.  For those of us who closely monitor developments in this sector — especially legal developments — Game Politics quickly became must-reading each day. It was, and remains, an indispensable resource.

Importantly, Dennis also kept editorializing to a minimum and stuck to reporting the facts first, only injecting opinions as an afterthought.  Although Dennis clearly loved the world of gaming as much as his readers, he always went out of his way to report all sides of the story, sometimes causing grief for game companies, developers, and even players because he did not shy away from asking tough questions of all of them.  That’s the hallmark of a great journalist.

Finally, and perhaps most amazingly, Dennis offered the world all this information, investigative reporting, and analysis at no cost.  I hope that’s not what drove him out of the field!

I do hope Game Politics continues on and remains strong, but they will have some very big shoes to fill with his departure.  Thank you Dennis McCauley for all that you did for the profession — and for your readers.  You will be missed.

The latest edition (Version 4.0) of my PFF special report on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now up.  For those not familiar with the report, it explores the market for parental control tools, rating schemes, education and media literacy efforts, and various other tools, methods, and initiatives aimed at promoting online child safety.  After evaluating that state of this market, I conclude: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”  Moreover, I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation.

Version 4.0 of the report is now over 250 pages long (up from 200 pages in Version 3.0) and it contains almost 70 exhibits (up from 50), 725 references (up from roughly 500), and numerous updates in all five sections of the book. Major updates have been made to the Internet, social networking, and mobile media sections, reflecting the growing importance of those sectors and issues. Other new sections or appendices have also been added to the report, including:

• a new section examining how many households really need parental control tools;
• a new appendix on the downsides of mandatory parental controls and restrictive default settings;
• a new section on the dangers of “deputizing the online middleman” solution as an approach to solving child safety concerns;
• a new appendix reviewing the findings of 5 past online safety task forces;
• … and much more.

I issue major updates once a year and 1 or 2 minor tweaks during the course of the year to reflect the evolution of the parental control and online child safety marketplace and debate. The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past couple of years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.

An interesting new survey has just been released by the Australian Communications and Media Authority (ACMA), which is the rough equivalent of the Federal Communications Commission here in the U.S., but with somewhat broader authority. ACMA’a latest report is entitled Use of Electronic Media and Communications: Early Childhood to Teenage Years and it takes a look at media technology usage among Australian youngsters in 5 age groupings (3 to 4 years of age, 7 to 8, 8 to 11, 12 to 14, and 15 to 17).

The survey also asked Australian parents “How easy do you find managing your child’s ___ use.”  They asked that question for four different media or communications technologies: TV & DVD; video games; Internet; and mobile devices.  They results, summarized in the table below, were quite interesting and seem to indicate that Australian parents find it much easier to manage their children’s media use than some of their elected leaders imagine.

After all, the Australian government has been contemplating (or already engaging in) some fairly significant content regulations for media, including fairly significant video game censorship, subsidized, government-approved PC-based filters, and now mandatory ISP-level content filtering.  But this new ACMA survey seems to suggest that parental responsibility is alive and well down under and that such content regulation is unwarranted.  As Michael Meloni of the excellent “Somebody Think of the Children” blog argues: “Maybe it’s time politicians stopped using that old excuse about how censorship is needed because parents don’t know how to manage their children’s access to the Internet and video games.” Indeed!

I’ve just had a new article published by the American Legislative Exchange Council (ALEC) in which I make the case against “techno-panics,” which refers to public and political crusades against the use of new media or technologies by the young. The article is entitled “Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics‘” and it appears in the July 2009 Inside ALEC newsletter.  This is something I have spent a lot of time writing about here in recent years (See 1, 2, 3, 4, 5) and I finally got around to putting it altogether in a concise essay here.  I have pasted the full text below. [And I just want to send a shout-out to my friend Anne Collier of Net Family News.org, whose work on this topic has been very influential on my thinking.]

“Parents, Kids & Policymakers in the Digital Age: Safeguarding Against ‘Techno-Panics‘” by Adam Thierer

A cursory review of the history of media and communications technologies reveals a reoccurring cycle of “techno-panics” — public and political crusades against the use of new media or technologies by the young.  From the waltz to rock-and-roll to rap music, from movies to comic books to video games, from radio and television to the Internet and social networking websites, every new media format or technology has spawned a fresh debate about the potential negative effects they might have on kids.

Inevitably, fueled by media sensationalism and various activist groups, these social and cultural debates quickly become political debates. Indeed, each of the media technologies or outlets mentioned above was either regulated or threatened with regulation at some point in its history. And the cycle continues today. During recent sessions of Congress, countless hearings were held and bills introduced on a wide variety of media and content-related issues. These proposals dealt with broadcast television and radio programming, cable and satellite television content, video games, the Internet, social networking sites, and much more.  State policymakers, especially state Attorneys General (AGs), have also joined in such crusades on occasion.  The recent push by AGs for mandatory age verification for all social networking sites is merely the latest example.

What is perhaps most ironic about these techno-panics is how quickly yesterday’s boogeyman becomes tomorrow’s accepted medium, even as the new villains replace old ones.  For example, the children of the 1950s and 60s were told that Elvis’s hip shakes and the rock-and-roll revolution would make them all the tools of the devil. They grew up fine and became parents themselves, but then promptly began demonizing rap music and video games in the ‘80s and ‘90s.  And now those aging Pac Man-era parents are worried sick about their kids being abducted by predators lurking on MySpace and Facebook. We shouldn’t be surprised if, a decade or two from now, today’s Internet generation will be decrying the dangers of virtual reality.

These techno-panics are almost always disproportionate to the real risk posed by new media and technology, which typically do not have the corrupting influence on youth that older generations fear.  Parents and public policymakers alike need to remember they were once kids, too, and managed to live through many of the same fears and concerns about media and popular culture. As the late University of North Carolina journalism professor Margaret A. Blanchard once noted: “[P]arents and grandparents who lead the efforts to cleanse today’s society seem to forget that they survived alleged attacks on their morals by different media when they were children. Each generation’s adults either lose faith in the ability of their young people to do the same or they become convinced that the dangers facing the new generation are much more substantial than the ones they faced as children.” And Thomas Hine, author of The Rise and Fall of the American Teenager, argues that: “We seem to have moved, without skipping a beat, from blaming our parents for the ills of society to blaming our children. We want them to embody virtues we only rarely practice. We want them to eschew habits we’ve never managed to break.”

The better response by both parents and policymakers is a measured and balanced approach to children’s exposure to media content and online interactions.  All-or-nothing extremes are never going to work.  In particular, techno-panics are hopelessly counter-productive. “Fear, in many cases, is leading to overreaction, which in turn could give rise to greater problems as young people take detours around the roadblocks we think we are erecting,” argue John Palfrey and Urs Gasser, authors of Born Digital: Understanding the First Generation of Digital Natives. What parents, educators, and policymakers need to understand, they argue, “is that the traditional values and common sense that have served them well in the past will be relevant in this new world, too.”

Most simply, we need to be willing to talk to our kids about the new technologies and cultural developments that shape their generation. When we as parents (or policymakers) do not fully comprehend or appreciate the new-fangled gadget in our kids’ pocket—or whatever they are playing, watching, or listening to on it—instead of engaging in demagoguery and driving a wedge between us and them, we should instead invite them to have a conversation with us about it.  Ask three simple questions to get that conversation started: “What is this new thing all about?”  “Tell me how you use it.”  “Why is it important to you?”  Once you’ve got them talking to you, good ‘ol fashion common sense and timeless parenting principles should kick in. “Do you understand why too much of this might be bad for you?” “Will you please come talk to me if you don’t understand something you’ve seen or heard?” And so on.

In sum, it’s about parental responsibility and rational, measured responses. The “techno-panic” mentality, by contrast, creates distrust and distance between our kids and us. As Anne Collier of Net Family News notes, techno-panics “cause fear, which interferes with parent-child communication, which in turn puts kids at greater risk.”

Parents and policymakers need to engage kids in an ongoing conversation about the technologies du jour—even when we don’t fully understand or appreciate them.

————— [printable Scribd version follows] —————

“Against Techno-Panics” by Adam Thierer, PFF (July 2009 – Inside ALEC) http://d.scribd.com/ScribdViewer.swf?document_id=17392730&access_key=key-2gdkqylyeu5h376buyyi&page=1&version=1&viewMode=

In an earlier post, I mentioned an important new online child safety task force report that has just been released from the “Point Smart. Click Safe.” Blue Ribbon Working Group. It’s a great report and I encourage you to read the whole thing. It was my great pleasure to serve on this task force, and as we started finalizing our conclusions and recommendations, I started thinking about how much of what we were finding and recommending was consistent with what past online safety task forces had also concluded.

By way of background, over the past decade, five major online safety task forces or blue ribbon commissions have been convened to study online safety issues. Two of these task forces were convened in the United States and issued reports in 2000 (“COPA Commission”) and 2002 (“Thornburgh Commission“). Another was commissioned by the British government in 2007 and issued in a major report in March 2008 (“Byron Review“). Finally, two additional online safety task forces were formed in the U.S. in 2008 and concluded their work, respectively, in January (“Internet Safety Technical Task Force“) and July (“Point Smart. Click Safe.“) of 2009. [And yet another task force — the Online Safety Technology Working Group — was recently formed and has now gotten underway.]

In a new PFF white paper, ” Five Online Safety Task Forces Agree: Education, Empowerment & Self-Regulation Are the Answer,” I walk through a chronological summary of each of these past task forces [click on covers of each report below to read them in their entirety] and highlight some of the similar themes and recommendations from them.

Altogether, these five task forces heard from hundreds of experts and produced thousands of pages of testimony and reports on a wide variety of issues related to online child safety. While each of these task forces had different origins and unique membership, what is striking about them is the general unanimity of their conclusions. Among the common themes or recommendations of these five task forces:

• Education is the primary solution to most online child safety concerns. These task forces consistently stressed the importance of media literacy, awareness-building efforts, public service announcements, targeted intervention techniques, and better mentoring and parenting strategies.
• There is no single “silver-bullet” solution or technological “quick-fix” to child safety concerns. That is especially the case in light of the rapid pace of change in the digital world.
• Empowering parents and guardians with a diverse array of tools, however, can help families, caretakers, and schools to exercise more control over online content and communications.
• Technological tools and parental controls are most effective as part of a “layered” approach to child safety that views them as one of many strategies or solutions.
• The best technical control measures are those that work in tandem with educational strategies and approaches to better guide and mentor children to make wise choices. Thus, technical solutions can supplement, but can never supplant, the educational and mentoring role.
• Industry should formulate best practices and self-regulatory systems to empower users with more information and tools so they can make appropriate decisions for themselves and their families. And those best practices, which often take the form of an industry code of conduct or default control settings, should constantly be refined to take into account new social concerns, cultural norms, and technological developments.
• Government should avoid inflexible, top-down technological mandates. Instead, policymakers should focus on encouraging collaborative, multifaceted, multi-stakeholder initiatives and approaches to enhance online safety. Additional resources for education and awareness-building efforts are also crucial. Finally, governments should ensure appropriate penalties are in place to punish serious crimes against children and also make sure law enforcement agencies have adequate resources to police crimes and punish wrong-doers.

The consistency of these findings from those five previous task forces is important and it should guide future discussions among policymakers, the press, and the general public regarding online child safety.  As I note in the paper, the findings are particularly relevant today since Congress and the Obama Administration — including 3 federal agencies (NTIA, FCC, & FTC) are actively studying these issues. So, in light of all that, I hope this short paper can shed some light on the collective wisdom of the past task forces. While more study of online child safety issues is always welcome — including additional task forces or working groups if policymakers deem them necessary — thanks to the work of these five task forces, we now have better vision of what is needed to address online safety concerns.

Five Online Safety Task Forces Agree [PFF – Adam Thierer] http://d.scribd.com/ScribdViewer.swf?document_id=17181137&access_key=key-z6cxfgrjkqaqtxbix&page=1&version=1&viewMode=

He Wants to Terminate Your First Amendment Rights

In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that “excessively violent” material — whatever that may be –“deserves no constitutional protection.” It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to “reasonable inferences” and “legislative judgments.”

The John Connor of Your First Amendment Freedoms

In other words, Corn-Revere notes, “the state is asking the Court simply to lower the bar so that protected speech may be regulated based on legislative whim.” He continues:

Thus, like the Terminator, no matter how many times you kill it, the government drive that motivates these laws keeps on going and going until it achieves its programmed goal. If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.

Corn-Revere is right. The ramifications of this case could be profound. As I pointed out in my previous essay on this case:

California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century’s worth of First Amendment jurisprudence. The State wants the Court to equate violent media content with sexual content, which in certain limited cases can be regulated if deemed “obscene” or “harmful to minors” (”HTM”).   If you thought that business was messy and hopelessly arbitrary, just wait till we let the Federal Communications Commission or state regulators open this new Pandora’s Box of content regulation and go after “excessively violent” content.

I’ve sorted through some of those thorny issues before (1, 2, 3, 4, 5, 6) and there’s just no getting around the fact that it is remarkably difficult to come up with any sort of workable test for what counts as “excessively violent” media content.  And that may be one of the reasons that the courts have historically steered clear of bringing violent content under the HTM standard.

Says Epic Games founder and CEO Tim Sweeney. I wonder what the FTC will think about this prospect in the report Congress asked them to send this year about video games.  I think it’s safe to assume that the thought of life-like sex and violence will create a true technopanic.

California has asked the Supreme Court to review a Ninth Circuit Court of Appeals decision holding that a California video game statute was unconstitutional.  [Game Politics.com has complete coverage, and there’s more over at Ars and USA Today’s Game Hunters blog.]

Brief background: In late February, the Ninth Circuit upheld an August 2007 ruling by a California district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here], which struck down a California law, passed in October 2005 (A.B.1179), which would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.  After being challenged by the Video Software Dealers Association and the Entertainment Software Association and, the district court blocked the law arguing that it violated both the First and Fourteenth Amendments to the federal Constitution.

California’s decision to appeal the law up to the Supreme Court [petition is here] sets up a potential historic First Amendment decision (if they Court agrees to take the case, that is).  California is asking the Court to consider two questions:

1. Does the First Amendment bar a state from restricting the sale of violent video games to minors?

2. If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, under Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 666 (1994), is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors?

California is essentially asking the Supreme Court to engage in a constitutional revolution and upset a century’s worth of First Amendment jurisprudence.

The State wants the Court to equate violent media content with sexual content, which in certain limited cases can be regulated if deemed “obscene” or “harmful to minors” (“HTM”).   If you thought that business was messy and hopelessly arbitrary, just wait till we let the Federal Communications Commission or state regulators open this new Pandora’s Box of content regulation and go after “excessively violent” content.

I’ve sorted through some of those thorny issues before (1, 2, 3, 4, 5, 6) and there’s just no getting around the fact that it is remarkably difficult to come up with any sort of workable test for what counts as “excessively violent” media content.  And that may be one of the reasons that the courts have historically steered clear of bringing violent content under the HTM standard. As EFF noted in a filing to the FCC this week:

speech can only acquire HTM status as a result of sexual content. Courts have repeatedly held that nonsexual depictions of violence are not covered by the HTM doctrine and are just as constitutionally protected for minors (against state action) as they are for adults. A series of court decisions, for example, has repeatedly invalidated state attempts to regulate minors’ access to violent video games.

I’m not an expert at reading legal tea leaves, but I really would be shocked if the Supreme Court took this case because I doubt they are eager to “unsettle” this relatively settled body of law and bring about a First Amendment revolution in the process.

The full text of the California appeal follows below.

Calif Appeal of VDSA Case to Supreme Court http://d.scribd.com/ScribdViewer.swf?document_id=15694645&access_key=key-1kpkxx35dnffdodp2g81&page=1&version=1&viewMode=

As anyone who has spent time searching for comments on the FCC’s website can tell you, the agency doesn’t exactly have the most user-friendly website.  In the interest of making it easier for others to read the comments that came in last week in the agency’s “Child Safe Viewing Act” Notice of Inquiry, I have compiled all the major comments (those over 3 or 4 pages) and provided links to them below the fold.

Again, this proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  I filed 150+ pages worth of comments in this matter last week, and here’s my analysis of why this bill and the FCC’s proceeding are worth monitoring closely.

• Association of National Advertisers (ANA)
• AT&T
• Center for Democracy & Technology (Individual Comments)
• CDT (Joint Comments with other Public Interest Groups)
• Children’s Media Policy Coalition
• Coalition for Independent Ratings
• Comcast
• Common Sense Media
• Consumer Electronic Association (CEA)
• CTIA – The Wireless Association
• Cox Communications
• CustomPlay
• Digimarc Corp
• Digital Watermarking Alliance
• Digital Media Association
• Dish Network
• DirecTV
• Entertainment Software Association (ESA)
• Family Online Safety Institute (FOSI)
• Google (+ attachments A, B, C)
• Motion Picture Association of America (MPAA)
• Microsoft
• NAB + NCTA + MPAA (0n TV Guidelines)
• National Cable & Telecommunications Association (NCTA)
• Progress & Freedom Foundation (PFF)
• Sanyo
• Smart Television Alliance
• Sprint-Nextel
• TiVo
• TV Guardian
• TV Watch
• U.S. Telecom Association
• Verizon & Verizon Wireless
• Wi-LAN V-Chip Corp

Today I filed comments with the Federal Communications Commission (FCC) in its proceeding examining the marketplace for “advanced blocking technologies.”  This proceeding was required under the “Child Safe Viewing Act of 2007,” which Congress passed last year and President Bush signed last December. The goal of the bill and the FCC’s proceeding (MB 09-26) is to study “advanced blocking technologies” that “may be appropriate across a wide variety of distribution platforms, including wired, wireless, and Internet platforms.”  My colleagues will no doubt laugh about the fact that I have dropped an absurd 150 pages worth of comments on the FCC in this matter, but I had a lot to say on this topic!  Parental controls, child safety, and free speech issues have been the focus of much of my research agenda over the past 10 years.

In my filing, I argue that the FCC should tread carefully in this matter since the agency has no authority over most of the media platforms and technologies described in the Commission’s recent Notice of Inquiry.  Moreover, any related mandates or regulatory actions in in this area could diminish future innovation in this field and would violate the First Amendment rights of media creators and consumers alike.  The other major conclusions of my filing are as follows:

• There exists an unprecedented abundance of parental control tools to help parents decide what constitutes acceptable media content in their homes and in the lives of their children.
• There is a trade-off between complexity and convenience for both tools and ratings, and no parental control tool is completely foolproof.
• Most homes have no need for parental control technologies because parents rely on other methods or there are no children in the home.
• The role of household media rules and methods is underappreciated and those rules have an important bearing on this debate.
• Parental control technologies work best in combination with educational efforts and parental involvement.
• The search for technological silver-bullets and “universal” solutions represent a quixotic, Holy Grail-like quest and it will destroy innovation in this marketplace.
• Enforcement of “household standards” made possible through use of parental controls and other methods negates the need for “community standards”-based content regulation.

My entire filing can be found here and down below in a Scribd reader.  All comments in the matter are due tomorrow and then reply comments are due on May 18th.

[FCC FILING] Adam Thierer-PFF Re Child Safe Viewing Act NOI (MB 09-26) http://d.scribd.com/ScribdViewer.swf?document_id=14264143&access_key=key-2nrvjm96q9cl5vep567l&page=1&version=1&viewMode=

This week, the Ninth Circuit Court of Appeals struck down a California video game statute as unconstitutional, holding that it violated both the First and Fourteenth Amendments to the federal Constitution.  The California law, which passed in October 2005 (A.B.1179), would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.  It was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association and, in August of 2007, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. The Ninth Circuit heard the state’s challenge to the injunction last year and handed down it’s decision this week [decision here] holding the statute unconstitutional. The key passage:

We hold that the Act, as a presumptively invalid content based restriction on speech, is subject to strict scrutiny and not the “variable obscenity” standard from Ginsberg v. New York , 390 U.S. 629 (1968). Applying strict scrutiny, we  hold that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State’s expressed interests. Additionally, we hold that the Act’s labeling requirement is unconstitutionally compelled speech under the First Amendment because it does not require the disclosure of purely factual information; but compels the carrying of the State’s controversial opinion. Accordingly, we affirm the district court’s grant of summary judgment to Plaintiffs and its denial of the State’s cross-motion. Because we affirm the district court on these grounds, we do not reach two of Plaintiffs’ challenges to the Act: first, that the language of the Act is unconstitutionally vague, and, second, that the Act violates Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment.

The law’s lead sponsor, California Sen. Leland Yee, is encouraging the state to appeal the law to the Supreme Court.  No word yet from Gov. Schwarzenegger whether the state will pursue that course of action. If they do, this will become the first major First Amendment case regarding video game speech that our nation’s highest court will consider.  The video game industry has racked up an uninterrupted string of First Amendment victories, so it would be quite shocking if the Supreme Court took up this case and then held differently.  It would also be shocking in light of the many Internet-related free speech decisions that the Court has handed down since the mid-90s, which all favored greater First Amendment freedoms.  But you never know.

The Entertainment Consumers Association (ECA) is a group that does some good things to mobilize gamers to fight misguided regulation of video games. I greatly appreciate their tireless efforts to fight stereotypes and myths about games and gamers, and to specifically counter the hysteria about video games that we sometimes see in the press, and definitely see in political circles on a regular basis.  They’re a great ally in the fight for freedom of speech and artistic expression in this field.

That’s why I was so sorry to see the ECA launch a new campaign that encourages gamers to petition their congressional leaders and encourage them to regulate the high-tech economy more and waste more taxpayer dollars on inefficient universal service programs and subsidies:

Net Neutrality and Universal Broadband are not only great for America; they allow us to play the games we want at high speeds! … ECA believes that Universal Broadband and Net Neutrality are vital for the development of the national infrastructure, and believes that this bill is an important opportunity to let Congress know that you agree.

Sorry, but someone at the ECA will have to tell me how Net neutrality regulation will make my online Madden and Tiger Woods Golf experience move faster. If anything, such regulations would slow things down by making it more difficult for carriers and gaming networks to create more effective bandwidth management schemes and pricing plans such that my video game bits can get through faster. Is that called “discrimination”? You better believe it, and it’s a great thing. Go ask Microsoft why they signed up Limelight Networks a couple of years ago to help them make the Xbox Live experience more tolerable.  Empowering regulators to micromanage this process, by contrast, is just going to quash innovative approaches to the problem and invite more regulation of high-tech markets in general. That won’t help gamers in the long run.

Regarding the call for universal service subsidies… I suppose I could see the ECA’s logic if those schemes actually worked. But we have 70 years of experience with these pork subsidy programs and they have proven to be an abysmal failure. They are prone to extreme waste, fraud, and abuse and, worse yet, those inefficient subsidies have discouraged competition in rural areas. You’re not going to get more entry in the broadband business by subsidizing favored local operators all day long. And subsidizing risky new ventures isn’t much better since it just lets bureaucrats roll the dice with our tax dollars.  Bad idea.

Finally, there’s a more important principle matter at stake here: If you want to hold the line on future government attempts to regulate video games, it’s generally not a good idea to come to Congress asking for favors in the form of new regulation or spending. With one hand government giveth; with the other they (eventually) take away.

Many folks are discussing Christopher Ferguson’s latest paper on “The School Shooting / Violent Video Game Link: Causal Relationship or Moral Panic?” And with good reason. It’s an important look at how “moral panics” develop in modern society, in this case around video games. [Moral panics is a subject I have written on at length here many times before.  Alice Marwick’s brilliant article on “technopanics” is also worth reading in this regard].

As I’ve noted here before, Ferguson has penned many important articles raising questions about the claims made by some other psychologists (and politicians) that there is causal relationship between exposure to violent video games and youth aggression. Ferguson has shown there are reasons to be skeptical of such claims — both methodologically and practically-speaking. More on that down below.

In his latest piece, however, Ferguson, a professor at Texas A&M’s Department of Behavioral, Applied Sciences and Criminal Justice, is more fully developing moral panic theory, which he describes as follows: “A moral panic occurs when a segment of society believes that the behavior or moral choices of others within that society poses a significant risk to the society as a whole.”  To illustrate the various forces at work that drive moral panics, Ferguson uses this “Moral Panic Wheel”:

This image makes it clear that there is no one group or factor responsible for moral panics. Rather, it is the combination of many forces and influences that ultimately bring such panic about. Activist groups and agenda-driven researchers obviously play a part. Ferguson notes that:

As for social scientists, it has been observed that a small group of researchers have been most vocal in promoting the anti-game message (Kutner & Olson, 2008), oftentimes ignoring research from other researchers, or failing to disclose problems with their own research. As some researchers have staked their professional reputation on anti-game activism, it may be difficult for these researchers to maintain scientific objectivity regarding the subject of their study. Similarly, it may be argued that granting agencies are more likely to provide grant money when a potential problem is identified, rather than for studying a topic with the possibility that the outcome may reveal that there is nothing to worry about…

Ferguson points out that the media and politicians also play a key role in whipping up a frenzy:

The media dutifully reports on the most negative results, as these results ‘sell’ to an already anxious public. Politicians seize upon the panic, eager to be seen as doing something particular as it gives them an opportunity to appear to be ‘concerned for children’. Media violence, in particular, is an odd social issue with the ability to appeal both to voters on the far right, who typically are concerned for religious reasons, and on the far left, who are typically motivated by pacifism…

Importantly, Ferguson also notes that the generation gap fuels the fires of moral panics: “[T]he majority of individuals critical of video games are above the age of 35 (many are elderly) and oftentimes admit to not having directly experienced the games. Some commentators make claims betraying their unfamiliarity,” he says.

Now, let’s get back to Ferguson’s more general skepticism of what other psychologists or social scientists have said about violent video games causing real world violence. [I highly recommend this layman-friendly essay that Ferguson wrote as an introduction to his thinking on the topic]. In his latest piece, he summarizes what is wrong — both from a methodological and real-world perspective — with that research. Here’s some of what he has to say:

• “Seldom are actual physical acts of aggression examined” in that research
• “there are considerable difficulties in generalizing the results from laboratory tests of aggression to real world serious acts of aggression”
• “the generalisability of these results to real world acts of serious violence is dubious”
• “most correlational studies fail to take account of potentially confounding ‘third’ variables such as personality, family violence, or genetics. A few do, and consistently find that the link between video game violence and aggression is greatly weakened by the inclusion of ‘third’ variables.”
• “[there are] significant problems in the violent games literature related to the use of unstandardized, unreliable aggression measures, as well as publication bias.”
• “the empirical link between violent gameplay and serious acts of aggression or violent behavior appears to be slim at best.”
• “In at least one recent court case, it was pointed out that even some social scientists have cherry-picked data that support the panic view, ignoring unsupportive research.”

Next, Ferguson does something I have been trying to do in all the papers and essays I have penned on this subject in recent years: Introduce real-world data! After all, if there is anything to the ‘monkey see-monkey do’ theory of media effects, then the lab research should be showing up somehow in the data we have about actual societal trends. Of course, when you do look at real-world data you find the exact opposite story, as Ferguson illustrates:

as violent video games have become more prevalent, violent crimes have decreased dramatically. This is true both for police arrest data, as well as crime victimization data. Similar statistics for reduced crime have been found in Canada, Australia, the European Union, and the United Kingdom using both arrest and victimization data. This is certainly not to say that violent video games are necessarily responsible for this decline, even partially. However, this certainly cuts away the basis of any belief that violent games are promoting societal violence. The correlation (an astonishing r = -0.95) is simply in the wrong direction. This would be akin to lung cancer decreasing radically after smoking cigarettes was introduced into a population, which is simply not the case.

(Sources: C.F. Ferguson, ESA, Childsats.org)

I highly recommend Prof. Ferguson’s latest paper and hope that it can contribute to the shaping of a new dialogue about youth and media. We do need to be good stewards of our children and be mindful of watch they watch, listen to, download, and play. [I’ve written an entire book about how to do so.]  But we first need to bring this moral panic over games to an end so we can get on with a serious, level-headed conversation about how to better mentor our kids in an age of media abundance.  The current hysteria is not helpful.

My Kid is the Man of Steel! ... in his mind.

Regular readers will recall my great interest in video games and the public policy debates surrounding efforts to regulate “violent” games in particular. One thing I bring up in almost every essay I write on this subject is how fears about kids and video games are almost always overblown and that kids can typically separate fantasy from reality. Nonetheless, kids have active imaginations and adults sometimes fear that which they cannot understand or appreciate.  Friendly mentoring and open-minding parenting can go a long way to encouraging kids to make smart choices and understand where to draw lines, whereas efforts to demonize video games and youth culture almost always backfire.

Anyway, what got me thinking about all this again was an entertaining column in today’s Washington Post by Ron Stanley (“Who Needs a TV to Play Video Games“), which describes the author’s experiences with his nephew when they played out video game-like scenarios using traditional toys and household items. It’s a wonderful piece worth reading in its entirety, but here’s the key takeaway that I’d like to discuss:

There was no evidence that television and video games had stifled the kids’ creativity. Nor was there any evidence that technology had made them smarter than earlier generations. They simply had a different frame of reference, one that included video games and computers as well as ponies, pet stores and sword fights. Children play with the tools at hand, and they’re great at thinking metaphorically — at imagining that a landspeeder is a sentient robot or that a stick is a gun or that salt-and-pepper shakers are a bride and groom or that a card table is a horse’s stable. They’re also geniuses at figuring out simple mechanics. My 6-year-old nephew had to explain to me that miniature low-rider cars don’t roll very well on carpet and will flip over more than if racing on hardwood floors. Novice that I was, I was choosing cars that looked the coolest. And they are geniuses at intuiting rules and systems, and at re-creating these rules and systems in their own play. Children who play lots of card games will invent their own card games. Children who play lots of board games will invent their own board games. And children who play lots of video games will invent their own video-game-like games when they don’t have access to the game controllers.

What Stanley was discovering with his nephew is that (1) kids have rich imaginations and love play-acting and just being creative, and (2) video games have become part of the new narrative of adolescent play-acting and creativity. Kids adapt and learn to cope with new cultural and technological realities; often much quicker than their parents. More importantly, much of their play-acting, including that in which they play out “violent” scenarios, is an entirely natural part of childhood.

Henry Jenkins has done some brilliant work on this front, and the new book Grand Theft Childhood by Kutner and Olson is also essential reading in this regard [my lengthy review is here]. But the best thing every written on this subject is Killing Monsters: Why Children Need Fantasy, Super-Heroes, and Make-Believe Violence, by Gerald Jones. It is a masterpiece, and I wish every parent and policymaker in America could read it before they propose the regulation of video games. As Jones correctly notes, “Video games are most threatening to adults who have seen images of them but never tried to play them.” He continues:

One of the functions of stories and games is to help children rehearse for what they’ll be in later life. Anthropologists and psychologists who study play, however, have shown that there are many other functions as well–one of which is to enable children to pretend to be just what they know they’ll never be. Exploring, in a safe and controlled context, what is impossible or too dangerous or forbidden to them is a crucial tool in accepting the limits of reality. Playing with rage is a valuable way to reduce its power. Being evil and destructive in imagination is a vital compensation for the wildness we all have to surrender on our way to being good people.

And “playing with rage” is exactly what we old farts were doing as kids too when we played (politically incorrect) games like “Cowboys and Indians” or countless other games that involved toy guns, cap guns, slingshots, bows-and-arrows, and the like. Of course, my generation gradually traded in our BB guns and slingshots for digital equivalents as video games came on the scene. And that was probably a good thing since, as Ralphie’s mom always warned us, “You’ll shoot your eye out” with those things!)

Bottom line: Cultures and the nature of childhood play-acting fantasies may change, but what will never change is the fact that kids need their fantasies. This is why I get down on my knees every night with my two kids and “play monster” with them. I stuff pillows in my shirt and let them bop me good as my dog and I chase them around and try to put them in “the dungeon” (which is usually a laundry basket or cardboard box). The X-Mas season is always great because we have a ton of those left-over cardboard tubes from wrapping paper, which still make the best toy swords. The game typically ends after Dad gets tired of getting bopped and plays “dead” so that the kids can declare victory and return to their castle and go to bed. But lately we’ve been playing video games together that play out in similar ways. (Lego Star Wars and Little Big Planet are big hits in our house currently.)

In the end, it’s just a different sort of fantasy. And they need all of them to become well-functioning adults. As Judge Richard Posner argued in his tour-de-force opinion in the 2000 case of American Amusement Machine Association v. Kendrick:

“Self-defense, protection of others, dread of the ‘undead,’ fighting against overwhelming odds—these are all age-old themes of literature, and ones particularly appealing to the young.” … “To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.” … “People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.”

Exactly. Why can’t others see this?

Incidentally, I should mention that I just bought my son his first set of boxing gloves and a punching bag for a Christmas present. I’m going to let him beat up the bag a little to give my belly and head a rest!

My good friend Jim Dunstan will be speaking to the “Games Gateway” meet-up group for the U.S. Mid-Atlantic Region on Dec. 2 at 6:30 pm about the legal issues affecting video game developers.

Did you know that enabling gamers to talk via voice while in a virtual world may subject you to FCC regulations? Or that the Child Online Privacy Protection Act under the FTC must be followed for game sites that knowingly include children under the age of 13? Whether you are a developer of console, PC or online games and worlds, there are legal issues which you need to keep in mind. Many of them are surprising, so join us to hear James Dunstan, partner at Garvey Schubert and Barer, an expert in video game and telecommunications law, discuss the ins and outs of interesting legal issues, what you as a game developer need to keep in mind, and steps to take as you develop your next game.

Besides being a space/Internet/communications lawyer (my alter ego!), Jim’s a video game programmer himself and has spent years advising video game clients.  RSVP here.

A new study (which is actually based on an old study) by Dr. Craig Anderson of Iowa State University and two other researchers is making news today because it suggests a link between violent video games and real-world aggression. I have written extensively about such studies here in the past, and have included a list of relevant links down below. But let me just use the opportunity to restate the fundamental problem with the way the press reports these things.

1. First, the press typically accepts the assertion made by authors of studies like these that the social “science” is unanimous in support of such a link between exposure to violent video games and real-world aggression. there is another side the story, but the press usually doesn’t report on it.
2. Second, reporters almost always fail to ask about how the researchers define “violent” games and the resulting “aggression” found in these studies.
3. Third, reporters almost never ask about how strong the correlation is or, more importantly, what other variables might have had an influence on the the subjects who were studied. (For example, did they factor in real violence in the home or at school?)
4. Finally, the reporters almost never query the researchers about the biases they bring to the task of studying this issue (namely, do these researchers have strong feelings about the content in the games they review such that they think they should be regulated in some fashion?).

Luckily, other social researchers are willing to point out these deficiencies. (See, for example, my reviews of the recent books by Drs. Kutner & Olson as well as Dr. Kourosh Dini.)  With reference to the new study reported in the press today, Texas A&M researcher Dr. Christopher Ferguson has challenged the study on many of the grounds I listed above. Specifically, in a letter to the journal (Pediatrics) in which the Anderson study appeared, Dr. Ferguson argues:

In the literature review the authors suggest that research on video game violence is consistent when this is hardly the case. The authors here simply ignore a wide body of research which conflicts with their views. A bibliography of research studies finding either null results for video game violence or results that suggest that violent game play reduces aggression is appended to this review. The authors fail to control for relevant “third” variables that could easily explain the weak correlations that they find. Family violence exposure for instance, peer group influences, certainly genetic influences on aggressive behavior are just a few relevant variables that ought either be controlled or at minimum acknowledged as alternate causal agents for (very small) link between video games and aggression. Overall results are very weak with effect sizes ranging from (.07 to .15). Video game exposure overlapped in this study approximately half a percent to 2% with the variance in aggression, which is as close to zero as one can get without being zero. If anything it is remarkable how little effect that violent games had on trait aggression, considering that other relevant variables were not controlled. Likely if other variables had been better controlled, such small effects may have vanished. Lastly the authors link their results to youth violence in ways that are misleading and irresponsible. The authors do not measure youth violence in their study. The Buss Aggression measure is not a violence measure, nor does it even measure pathological aggression. Rather this measure asks for hypothetical responses to potential aggressive situations, not actual aggressive behaviors. […] the authors appear to generalize their results to youth violence, but offer no compelling reason why this should be, particularly in light of the weak results they achieve. The authors also fail to note that during the period in which violent video games became increasingly popular, youth violence has plummeted approximately 66% to levels not seen since the 1960s (childstats.gov, 2008; FBI, 1951- 2007). Although I suspect the authors would simply try to argue that this does not matter, such arguments are disingenuous, particularly as they raise the issue of youth violence themselves. In short, given the weak effect sizes, the lack of control of relevant variables, and the failure of the authors to acknowledge data and research which contradicts their hypothesis, I am left with little confidence that the results of the current study provides much meaningful information on the impact of violent games.

It’s that fourth point he mentions above about defining “youth violence” or “aggression” that I think is most important. When you read through many of these studies that claim to find a link between violent games and real-world aggression, the definitions of “aggression” or “harm” are often a scandalous stretch of the imagination.  (One study I read two years ago referred gossip among peers and siblings as a form of aggression!)  More importantly, as Ferguson rightly notes, at some point the research needs to be compared against real-world data if we are going to take this “monkey see, monkey do” theory of media effects seriously. Of course, when you do look at real-world data, you find the exact opposite story: Juvenile crime rates have plummeted even as exposure to video games has exploded. I have documented this in my big paper on “Fact and Fiction in the Debate Over Video Game Regulation” as well as some of the essays I list down below.

Bottom line: There is another side to the story and the press needs to dig a little deeper to find it. At a minimum, they need to stop blindly accepting every assertion and assumption made by the authors of these studies and instead start asking some tough questions about the details. Most simply, they should (1) start by asking whether how the researchers account for other variables that influence human behavior and then (2) make them account for why their theories do no match up to real-world data.

Anyway, you can find Dr. Ferguson’s own work on the matter here and in his letter to Pediatrics he references some other literature on the subject you should be reading for the other side of the story. Also, here are my relevant blog entries on the subject from past years:

• Why hasn’t violent media turned us into a nation of killers?
• Are All Video Games Violent?
• Do video games create cop killers?
• Let’s Consider the Facts Before We Call In Government to Regulate Video Games
• review: Kutner & Olson’s “Grand Theft Childhood”
• review: Dr. Kourosh Dini’s “Video Game Play & Addiction”
• Jenkins on new Pew report about “Teens, Video Games, and Civics”

GamePolitics.com reports that there are strong signs the protracted legal battle over video game regulation in California might soon be headed to the Supreme Court. The ongoing battle deals with a California law passed in October 2005 (A.B.1179), which would have blocked the sale of “violent” video games to those under 18 and required labels on all games. Offending retailers could have been fined for failure to comply with the law.

The law was immediately challenged by the Video Software Dealers Association and the Entertainment Software Association.  In August of last year, a district court decision in the case of Video Software Dealers Association v. Schwarzenegger [decision here] enforced a permanent injunction against the law. And today in Sacramento, a 3-judge panel of the 9th U.S. Circuit Court of Appeals held a hearing in to hear additional arguments about the law. The San Jose Mercury News reports that judges seemed skeptical about the State’s effort to overturn the lower court ruling and get the law enforced:

While the 9th Circuit judges did lend some support to the state, they were generally skeptical the law can survive. “What you are asking us to do is go where no one has gone before,” Judge Consuelo Callahan said to the state’s lawyer. “Admittedly, they are disgusting. But aren’t you just trying to be the thought police?”

The judges also realize that every other state or circuit court that has considered the constitutionality of similar video games laws has found them unconstitutional. As I noted in my piece last year on the California law, the current legal score is “Gamers 11, Censors 0.”  If the Ninth Circuit does keep the injunction in place and California appeals the law up to the Supreme Court as some predict, we could be in for a historic First Amendemt case, and the first to deal with video game speech. Stay tuned!

So I was just finishing up this excellent new Pew report on “Teens, Video Games and Civics,” and was about to post some thoughts about it when I saw in my RSS feed that the brilliant Henry Jenkins had beat me to it in an essay entitled “Video Game Myths Revisited.” Prof. Jenkins summarizes the major findings of the Pew report as follows (note: He elaborates on each finding in his essay):

• At the most basic level, game playing has become more or less universal.
• The Pew research may also force us to rethink once again the assumption that there is a gender gap in terms of who plays games.
• The Pew Data complicates easy generalizations about the place of violent entertainment in the lives of American teens.
• The Pew Data further challenges the idea that game playing is a socially isolating activity.
• The Pew Research does indicate some areas where parents should be concerned about the gaming lives of their sons and daughters.
• The Pew Research also challenges the prevailing myth that most parents are worried or alarmed about their young people’s relations to games.

Anyway, make sure to read Henry’s write-up and the entire Pew report.  Good stuff.  [And here’s the point where I once again shamelessly plug my old paper on video game myths and some of my other essays like “Dear Gov. Patterson… Regarding that Video Game Bill You Are About to Sign,” “Understanding The True Cost of Video Game Censorship Efforts,” “Do video games create cop killers?” and “Why hasn’t violent media turned us into a nation of killers?”]

I’m pleased to announce the publication of A Manifesto for Media Freedom, which I co-authored with Brian C. Anderson of the Manhattan Institute. Brian serves as editor of Manhattan Institute’s excellent City Journal and he is the author of best-selling books like South Park Conservatives and Democratic Capitalism and Its Discontents.

In this little manifesto, we highlight one of the central ironies of the Information Age.  Namely, that despite “the breathtaking abundance of new and old media outlets for obtaining news, information, and entertainment…”

many people hate this profusion, and never more than when it involves political speech. The current media market, they charge, doesn’t represent true diversity, or isn’t fair, or is subject to manipulation by a small and shrinking group of media barons. They want the government to regulate it into better shape, which just happens to be a shape that benefits them. Doing so… would be a disaster, a kind of soft or not-so-soft tyranny that would wipe out whole sectors of media, curtailing free speech and impoverishing our democracy.

In other words, instead of celebrating the unprecedented cornucopia of media choices at our collective disposal, many policymakers and media critics are calling for just as much media regulation as ever. We itemize these threats in our chapters and they include: efforts to revive the “Fairness Doctrine”, media ownership regulations, “localism” requirements, Net neutrality mandates, a la carte regulations, cable and satellite censorship, video game censorship, regulation of social networking sites, campaign finance-related speech restrictions, and so on.

In each case, we advance a pro-freedom paradigm to counter the advocates of media control. What do we mean by the “media freedom” that we advocate as the alternative to these new regulatory crusades? Here’s how we put it in the book:

For media consumers, it’s the freedom to consume whatever information or entertainment we want from whatever sources we choose, without government restricting our choices. For media creators and distributors, it’s the freedom to structure their business affairs as they wish in seeking to offer the public an expanding array of media options, for both news and entertainment. And for both consumers and creators,media freedom is being able to speak one’s mind without restraint and without the threat of FCC or FEC bureaucrats telling us what is “fair.”

It doesn’t seem like much to ask until you realize how many people in Washington and academia today are calling for these various flavors of media regulation.  Of course, it doesn’t help that media-bashing has always been a bipartisan sport.  Indeed, depsite the fact that most of these efforts are lead by the Left, our book highlights how some folks on the Right are still guilty of joining some of these misguided regulatory crusades.

Republican presidential candidate John McCain, for example, has sponsored “a la carte” mandates for cable and satellite operators and sponsored the draconian campaign finance law that will forever bear his name, McCain-Feingold. He has also proposed a follow-up law: McCain-Feingold II. Although it did not pass, McCain’s measure would have required broadcasters to run 12 hours of “candidate-centered and issue-centered programming” in the six weeks prior to primary and general elections — without giving broadcasters any control over those 12 hours (half of which would have had to run during prime time). The bill would have created a voucher system for the purchase of airtime for political advertisements, financed by an annual spectrum-use fee on all broadcast license holders. In sum, the legislation would have forced broadcast stations to pay a tax to the federal government that would in turn finance a pool of funds that politicians could turn around and spend to run ads on those very stations!

Others on the Right have favored the Fairness Doctrine in the past, and more recently, some have joined the Net neutrality effort. And many conservatives have long been in favor of various forms of media censorship.

That being said, the most serious threats to media freedom today arise from the Left and our book serves primarily as a response to the many Leftist efforts to regulate media today. As we argue in the introduction:

The left seems certain that a media problem ails our society; it just can’t decide what that problem is. Some contend that real media choices are as limited or biased as ever, while others argue that our democracy is imperiled by too many media choices, making it hard to share common thoughts or feelings. What unites these two types of critics is their elitist presumption that they know what’s best for the rest of us. They would love to rewrite regulations to tilt the media in the direction they prefer; and if they are allowed to do so, what is shaping up to be America’s Golden Age of media could come to a sudden end.

The Left’s obsession with reinstating the Fairness Doctrine is particularly telling in this regard. [You can read our history of the Fairness Doctrine here] But, as we go on to note:

Some liberals suggest that even a new Fairness Doctrine wouldn’t be enough to correct a “structural imbalance” in the media marketplace. They want tightened ownership regulations, mandates ensuring “greater local accountability” over radio and TV broadcasters, and a significant ramping up of subsidies for public radio and TV stations. One leading leftist proposal would even force private broadcasters to fund public broadcasters! These proposals expose the left’s true goal: to regulate private media outlets comprehensively and drive out those owners who dare to offer right-leaning alternatives.

This movement is being driven by a wide variety of Left-leaning think tanks and advocacy groups, especially Free Press, Media Access Project, and the New America Foundation. These organizations will likely have a strong voice in an Obama administration regarding media law and Internet policy issues. And we fear that means that new regulatory shackles will be placed on the media and free speech as a result. That’s why we penned this manifesto at this time. As we conclude in our book:

Motivated by the naked desire for political control, a reactionary fear of the new, or genuine if misguided views on equality and fairness in the media, [these liberal media activists] threaten to enact regulations that will strangle or at least cripple this social development before it can begin to reach its potential. Those on the right are not free from these impulses, either. But they, as the prime beneficiaries of media abundance — of all the conservative and libertarian talk shows and websites that would suffer in a media landscape remade by the Democratic Party and liberal activists — should embrace, defend, and expand the freedom that made it possible.

Anyway, if you care about free speech and media freedom, I do you hope you will consider giving the book a look. The main page for our book is here. And you can find it on Amazon here.

Just FYI, the latest update of my booklet on “Parental Controls and Online Child Protection: A Survey of Tools & Methods” is now live. The new version, Version 3.1, provides minor updates to all sections of the book and a new appendix of relevant research in the field. I issue major updates early each year and 1 or 2 tweaks during the course of the year to reflect the evolution of the parental control and online child safety market and debate.

For those not familiar with the report, it explores the market for parental control tools, rating schemes, education efforts, and initiatives aimed at promoting online child safety. I believe that the parental controls and content management tools cataloged in the report represent a better, less restrictive alternative to government regulation. As I conclude after evaluating that state of the market: “There has never been a time in our nation’s history when parents have had more tools and methods at their disposal to help them decide what constitutes acceptable media content in their homes and in the lives of their children.”

The report is available free-of-charge on the PFF website, and the previous editions of the report are housed there too in case you want to see how it has evolved over the past two years. For those interested in taking a quick look at the report, I have embedded it down below the fold as a Scribd file. Finally, as is always the case, I encourage readers to send me updates and suggestions for how to improve the report and I will incorporate them into future versions.

The Washington Post reports today on a trend that I thought we all knew about, but one I’m glad the mainstream media is finally realizing.  It turns out that people who play video games are not just virginal teenage boys with acne problems.  No, even 20-something, attractive women play video games.

The Post’s Mike Musgrove reports on the mother and daughters of the Burguieres family of Bethesda, Maryland.  Of course in good journalist fashion Musgrove uses the Burguiereses to illustrate a larger point, he even points to the relevant stats:

It used to be that this all-woman crew wouldn’t fit the standard image of the video game consumer. But the perception of gamers as being mostly young guys isn’t so true anymore. Women and girls make up 40 percent of the gamer population, according to the Entertainment Software Association.

The most interesting point brought up in the article on this demographic trend—one that most gamers realize has been happening for quite some time—is Musgrove’s observation that women once were not naturally accepted members of the gaming community.  It’s a great point, but one that can be extended to tech community in general.

It’s not only cool for girls to play games on the Wii, more and more women and becoming full-fledged uber nerds.  Morgan Webb, Veronica Belmont, and Molly Wood have become big voices in the tech community—they’re serious commentators and understand the industry as well as their male counterparts.  Hopefully they’re inspiring more girls to get geeky.

As much as free market or libertarian types sometimes believe that culture is an irrelevant backdrop, it’s not.  Cultural norms matter.  Popularizing and making tech appealing amongst women is crucial.  If some of our best minds were deterred from tech in the past because Bill and the Steves were its most visible avatars, that hurts all of us.  What’s accepted socially can sometimes create a barrier to entry that’s as significant as what’s allowed legally.

Video games specifically have benefited tremendously by their more diverse audience.  Games aren’t just tailored to the desires of teenage boys, but are targeted at an older, more sophisticated audience.  Contemporary games show the value the market places on character development and storyline, along with the usually shoot ’em up and gore.

Politicians were once able to demonize video-games as the opiates of the teen and twenty-something male masses.  These violence-soaked diversions were deviant behavior producing machines.  This misconception, thankfully, is no longer tolerated in Washington.  The gaming demographic not only includes more ladies, it includes more fogies.  As the Pong generation ages, we see more middle aged folks playing games—Adam can attest to this.  This helps safeguard video games from would-be First Amendment violators like Hillary Clinton, Sam Brownback, Fred Upton, Jack Thompson, and the many others who would uproot the ESRB system that works so well.

As much as Mosgrove may be late in catching this trend, it’s an important one to point out.  Everyone needs to feel accepted in the tech community.  A larger talent pool is never a bad thing, not to mention the bigger voting block.

I was a HUGE fan of Mattel handheld games back in the late 70s, and I played “Football I” and “Football II” for countless hours with friends. And now you can get it on the iPhone!

Sure it’s probably still primitive as hell — you could only run the ball in Football I ! — but I bet it’s still a lot of fun.

I still have the old Football II handheld at my house and have been trying to teach my kids how to play it. (Colleco’s handheld Football game was actually better but I don’t have that one anymore). My kids don’t quite get the fun in frantically mashing buttons to move little red LED hashes across the screen. They are spoiled I tell you!

The Battlestar Galactica game was just awesome too. Video games have come a long, long way since then, but these old handheld games were addictive in their own right.

How much platform competition is too much competition? For example, what is the optimal number of mobile operating systems or video game consoles that will spur competition and innovation in those respective sectors?

It is an interesting business question, but it also has some policy implications since some might propose laws or regulations to remedy a perceived lack of platform competition in various sectors. After all, many people would answer the above question by saying that there is never such a thing as too much competition. The more platforms the better. But there can be costs associated with too much competition. Let’s consider those two case studies mentioned above: mobile operating systems or video game consoles.

Mobile Operating Systems As my colleague Berin Szoka has pointed out, we are witnessing the rapid proliferation of mobile operating systems, especially on the open source front. So, we’ve got Apple’s iPhone platform, Microsoft’s Windows Mobile, Symbian, Google’s Android, the LiMo platform, and OpenMoko.

One one hand, all this platform competition sounds great. But as Ben Worthen of the Wall Street Journal’s “Business Tech Blog” points out in a piece today:

there’s a new platform war being waged, but this time the battleground is mobile devices. The bad news for businesses looking to standardize on a winner: The most likely outcome is multiple survivors. […] In fact, rather than consolidating, the number of platforms for which developers can write mobile-device software keeps growing, says Benjamin Gray, an analyst at Forrester Research. That’s a challenge for businesses, in part because workers increasingly want to be able to choose the device that they think is the best fit for their life. In the PC world, the answer would be simple: Write software that people access over the Internet through a Web browser, which isn’t dependent on an operating system. But most devices can’t connect to the Internet at the speed necessary to run such software, Mr. Gray says. And besides, screen size varies from device to device, meaning that software that looks good on one might not on another. Add it all together and it means that businesses need to pick and choose their battles. It’s probably wise to let workers who only need to access email or software that runs on multiple mobile platforms use whatever device they choose. But it probably won’t be cost-effective to give the same choice to workers who have to access custom-developed software through their devices — not unless a business wants to spend the time and money developing a version of the software for every platform out there.

This is the other side of the platform competition coin that many people never consider, especially in the policy arena. At some point, increased mobile OS competition is going to impose serious costs on application developers looking to push their innovations our far and wide, and as quickly as possible.

Consider a really exciting new mobile application like Loopt, which I have written about here before. Loopt is a great little mobile app that allows users to instantly geo-locate each other and network in ways unimaginable just a few years ago. Loopt has been working hard to make its service available on as many platforms as possible, but the company has to deal with dozens of handsets and a growing number of OS platforms used by multiple carriers. A friend of mine who works with Loopt was telling me this week how this is really making it difficult for Loopt to push its technology out as far and wide as they would like. With each new handset, carrier, and OS standard, the company faces formidable development costs. Essentially, Loopt needs an in-house development team for each standard.

Thus, it is possible to reach a point of diminishing returns in terms of platform competition. While few would call for an mobile operating system monopoly, a world of dozens of competing standards could hurt product development and diffusion.

Video Game Consoles The same principle applies to video game console competition and its effect on innovation. Some would say that there is already far too much platform competition in this field. Consider the platforms or consoles that game developers must code for just here in the United States: Microsoft Xbox 360 and the older Xbox, Sony PS3 and the old PS2, Sony PlayStation Portable, Nintendo Wii, Nintendo DS, sometimes the Mac, and finally the good old PC platform. Large developers have the scale and resources to develop new games for most of those platforms. (For example, EA’s latest “Madden 08” football game is being developed for all of those platforms. But most developers don’t have the resources to match Electronic Arts and can’t develop for all those platforms.

It is ironic, therefore, that EA has actually been making waves lately by calling for a single gaming platform or standard. Gerhard Florin, a senior executive at EA, told BBC News last year that proliferating platform competition has made life harder for developers and consumers. “We want an open, standard platform which is much easier than having five which are not compatible,” he argued.

So, when even Electronic Arts is saying there’s too much competition in this regard, you know something is up. After all, it would be in their competitive advantage to absorb the costs associated with multi-platform development since smaller competitors can’t match that sort of multi-platform capital outlay.

How steep are those development costs? And what does it mean for both developers and consumers of games? I think Matt Peckman over at PC World has done a pretty good job summarizing the costs:

Just remember, having too many choices can be just as onerous as having none. I don’t know about you, but I play games, not hardware. An open-standard approach to the engine under the hood sounds like it’d give me more choices in terms of software and peripherals long term, not fewer. […] A unified game hardware architecture would make life for software studios dramatically easier. It levels the playing field and simultaneously increases competition by pitting more developers against each other. It says “Everyone has access to the same toolset, so you can stop complaining about how hard X is to code for or worrying about allocating resources to different teams for different platforms, and instead simply focus on making really, really, really mind-bending stuff for one system.”

Of course, there is another side to the story. Video game platform competition has yielded remarkable innovations at the console level. I can think of at least three ways this is true:

(1) The race to constantly increase processing power: Just look at the competition between Microsoft and Sony to produce state of the art graphical capabilities by packing massive processing power into their the new machines. (2) Unique innovations in console peripheral devices: If we only had one gaming console or standard, would we have ever seen Nintendo’s amazing motion sensitive controller for the Wii? (3) The race to develop consoles that are not just gaming devices, but are full-blown integrated entertainment hubs. I use my XBox 360 and Sony PS3 to download all sorts of movie and TV content — especially high-def movies and new movie trailers. I can also use those consoles to ship my media around my house from computer to computer.

But do such benefits outweigh the costs? Would it be the case, as Matt Peckman suggest above, that reallocating resources to single platform development would result in “really, really, really mind-bending stuff for one system”? The problem with that logic is that we already have some really mind-bending stuff being developed for the multiple platforms these days. Think “Gears of War” (exclusive to XBox), “Metal Gear Solid” (exclusive to PS3), and “World of Warcraft” (exclusive to PC). Then again, why should we need to own 3 different platforms to play these 3 wonderfully innovative games?

In sum, there are profound trade-offs at work when we think about platform competition, whether we are talking about video games or mobile operating systems. There is no right answer to the question of how many platforms is too many. Markets decide these things in an evolutionary way over time. I think it is exciting that we are lucky enough to live in a world where intense platform competition is possible and new entrants are free to jump in the game at any time. That being said, I am equally comfortable with the fact that markets might eventually settle for fewer platforms — perhaps even a single standard — at other times. So long as that process is the result of natural market evolution, and not artificial government choices, I am fine with it.

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?

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.

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).

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.