The Needles

The Needles
A Crash Course in ESRB

Andy Chalk | 18 Nov 2008 21:00
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Why the hell aren't game ratings legally binding, anyway? This one is a bit trickier, particularly for non-Americans who have legislated game ratings in their own countries and wonder what all the fuss is about. It comes down to the First Amendment to the United States Constitution - that's the one about free speech, among other things. Simplistically put, which is about all I'm good for, the First Amendment severely restricts the ability of state and federal governments to regulate personal or artistic expression, be it in books, music, television, movies or, so the courts have decided, videogames.

Some legislators, and a wackjob former lawyer or two, have attempted to have videogames declared exempt from such protection, much like hardcore pornography, but the judiciary in several states across the country have repeatedly called bullshit and refused to differentiate videogames from any other medium. Without compelling evidence that videogames are harmful material - and despite what videogame critics may claim, there is no such evidence - that situation is unlikely to change.

Outside observers need to bear in the mind that the U.S. Constitution is sacrosanct; it forms the basis for the entire system of laws and government in the country, and Americans, generally speaking, take it very seriously. Putting even the most well-intentioned restrictions on First Amendment-protected material would be... well, it would be big. Really big. And it could potentially have major repercussions beyond just videogames.

It's the old "slippery slope" argument. If games can be regulated, then why not other media? Why not music, or movies? (The Motion Picture Association of America's rating system is also voluntary, by the way.) Supreme Court Justice Thurgood Marshall wrote in 1969, "If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds." The First Amendment exists because of that "rebellious heritage," and its existence is precisely why the government has not - and, in the eyes of lawmakers across the country, cannot - criminalize the sale of even M-rated videogames to minors.

Ultimately, what difference does it make to gamers? That depends on how likely you think it is that a developed western democracy will descend into tyranny if some "common sense" limitations are placed on the creation and sale of entertainment products. The American Way may strike outsiders as a tad extreme, perhaps bordering on paranoid ("From my cold, dead hands" springs to mind) but the undeniable truth is that the system has worked pretty well so far. Videogame developers and publishers do face limitations, imposed by both the industry itself as well as external market forces; and while critics may say a self-policing system is too lax to be adequate, I think it's more accurate to describe it as flexible, able to adapt to changing markets and social mores in ways that codified legislation simply cannot. If that's important to you, then a properly functioning system of self-regulation is definitely in your interests - and it's definitely worth knowing a little about.

Andy Chalk doesn't even live there.

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