For the Children

In my parents’ generation, it was rock and roll that threatened Our Nation’s Youth

It seems that this justification for restricting the sale and rental of violent video games is tenuous at best. While there are studies that indicate the assertions of the Illinois General Assembly are true, there are also studies that indicate the exact opposite. Additionally, the definition of violent games seems a bit ambiguous when viewed from the perspective of a person who has experience with video games. The Act describes violent as human-on-human violence. However, what about games that have humanoid characters? Is an elf or an orc sufficiently human to trigger the statute’s restrictions? What about games like Devil May Cry? Do vampires count? What about Resident Evil? Do games like Madden 2005, where players can be maimed as part of the game play, fall under the umbrella of this statute? Will games that should be regulated slip through the cracks, or will too many games be regulated because the definition is too vague?

Questions like the ones above are why content-based regulations of speech must be narrowly tailored to be Constitutional. In its zeal to protect children from violent video games, it seems that the Illinois General Assembly has failed to consider these factors. Although protecting minors from objectionable content is important, the purported failure of the ESRB system does not necessarily justify creating a secondary ratings system. In addition to the ESRB stickers that are currently on games, violent video games sold or rented in Illinois must also display an “18” sticker. Failure to label the games exposes retailers to criminal penalties. While this system certainly makes it plain which games are restricted to people eighteen years of age and over, it seems like an overly restrictive means to achieve the end of protecting children.

From a public policy perspective, when government seeks to regulate the content of speech, the least restrictive means is always the best. The findings of the Act beg the question, “If the ESRB system is not enforced, why do we need a whole new system?” A less restrictive method for achieving the Illinois General Assembly’s goal would have been to simply codify the ESRB ratings, requiring retailers to follow the age restrictions established by an industry-based regulatory agency. Certainly, the ESRB’s definitions are designed by people who understand video games and the industry better than elected officials. This would also make regulation simpler, especially if other states follow Illinois’ example and enact their own Safe Game statutes.

One risk of the Illinois model is that if each state creates its own definition of “violent,” it will be difficult for retailers to guarantee that their stores are in compliance with the law in every state they do business. Another risk is that online retailers will have to stop selling restricted games to residents of Illinois or create an age verification system in order to comply with the law. While a credit card was once an effective method for age verification, debit cards and their use by minors makes the task more difficult. A well-planned challenge of the Illinois bill would not only argue that it was an unconstitutional restriction on speech, but also claim that the Act interfered with interstate commerce. The United States Congress is the only legislative body in the nation that has complete power to regulate commerce between the states. It is possible that the impact this legislation could have on online retailers and game rental services runs afoul of Congress’ commerce powers.

While it is important to protect children and provide parents with a trustworthy system for determining whether a video game is appropriate for their family, legislation like the Illinois Safe Game Act could create more problems than it solves. If one of the main reasons for its creation is the fact that retailers did not enforce the ESRB ratings and not the inaccuracy of the ESRB’s rating system, why throw the baby out with the bathwater and draft a new rating system? In fact, if the ESRB system is so flawed as to require a legislative solution, then why does the Act use the fact that a game was rated EC, E10+, E or T by the ESRB as an affirmative defense against criminal charges brought under the Act? If a retailer can trust the ESRB rating to tell him whether to sell the game to a minor, why not simply codify the existing system? As it is drafted, the Safe Game Act seems more likely to cause confusion than the current system. It is highly doubtful that retailers will be able to accurately label their stock to reflect the requirements of the statute. Since they are exposed to criminal liability for failing to accurately label games, forcing them to interpret the Illinois General Assembly’s definition of violent is an unacceptable burden.

The law also does little to prevent a minor from obtaining a violent or sexually explicit game because it provides a loophole for retailers who sell the game to a family member of the minor. The statute includes siblings in its definition of family members, which means that all a minor needs is a permissive older sibling to buy the game for him or her. While parents should be allowed to purchase the regulated games for their children if they see fit, allowing siblings the same latitude is highly counter-intuitive if the statute is to effectively achieve its stated goals.

The Illinois Safe Game Act is an example of legislation that is poorly tailored to its stated purpose. It seems to have clear First Amendment issues and may be an unconstitutional regulation of interstate commerce. Its definition of “violent” is ambiguous and vague, and placing the burden of interpreting the statute on retailers will most likely cause them to over-label their games. If retailers develop a rule of, “if in doubt, restrict the sale,” some otherwise acceptable games will be affected. A more efficient method would be to pass legislation that requires retailers to follow the age restrictions indicated in the ESRB rating system for games rated “M” and “AO.” While some may argue that the ESRB is ineffective in the wake of the “Hot Coffee” scandal, the fact that it raised the rating on Grand Theft Auto: San Andreas to “AO” from “M” shows a responsiveness that would be hard to match via legislative and judicial means. Codifying the ESRB system also guarantees uniform standards that are designed by experienced members of the industry. Ultimately, parents should be the ones to regulate what game content their children can access. If we, as a society, wish to pass laws to assist parents in that endeavor, it is our duty to craft effective, efficient and Constitutional statutes. In the rush to legislate “For The Children!” we cannot lose sight of simple, yet effective solutions.

Matthew ‘CmdrSlack’ Hector is a licensed attorney in the State of Illinois. He is currently writing for Real Name Gamers.