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Christmas is coming, and with it comes the usual holiday-fueled frenzy of buying games for other people, particularly kids, be they yours or someone else’s. Kids tend to be somewhat more dependent upon the kindness of others than adults, and people are never more inclined to be both generous and completely lacking in discretion with their generosity than Christmas.

Which makes it a great time to clear up a few areas of confusion regarding everyone’s favorite North American videogame advisory agency, the Entertainment Software Rating Board. The ESRB has been around for almost 15 years now, and its bold, monochromatic warning labels are familiar to anyone who’s spent more than five minutes in their local EB or GameStop. Yet what the ESRB actually is, how it works, and why, despite all the grief it takes from both gamers and non-gamers, the group is very much a force for good, remains something of a mystery for many people.

A few simple questions, then:

Is it illegal to sell Mature-rated videogames to people under 17? No. This is one of the most common misconceptions regarding videogame ratings in the United States, that retailers are legally bound to enforce game ratings. They aren’t. The ESRB was established by the videogame industry as an independent watchdog, working with both publishers and retailers to establish and enforce a universal rating system for games in North America, and as such, compliance is entirely voluntary – although like so many “voluntary” things in this day and age, it’s all but mandatory for any game that wants to be sold off store shelves, as opposed to, say, out of the developer’s basement.

But if it’s not mandatory, why do publishers go along with it? In the early ’90s, the industry was facing something of a political crisis. The 1993 release of Doom, in particular, led to the perception of videogames as the mind-warping love-spawn of Satan and Hitler, even as they were growing increasingly popular. Naturally, there was a politically-expedient desire among many politicians to “do something” about them; what, or even why, was difficult to nail down, but these are politicians we’re talking about.

At any rate, the writing was on the wall. Collectively, the game industry realized that this populist stampede needed to be headed off at the pass, so it took steps to do just that, establishing (via a more drawn out process than we’re going to get into here) the ESRB. It was a win all around: The game industry made Congress happy while keeping it from rummaging through the dirty laundry, and Congress got to look like it was kicking some ass on the videogame front without finding itself balls-deep in a Constitutional quagmire.

A decade and a half later, publishers continue to play ball for a reason far more compelling than mere legislation: Money. Major retailers in the U.S. won’t touch unrated games, or even Adult Only games for that matter (hence the occasional spectacle of a publisher begging, pleading and cutting to get that crucial M) and if your game isn’t on the shelf at Wal-Mart and Best Buy, it ain’t gonna sell. Meanwhile, in the aftermath of the Hot Coffee debacle, which threatened to bring a whole new political firestorm down on the industry, the ESRB got tough: Publishers who jerk the board around regarding a game’s content now face fines of up to $1 million, and repeat offenders could find their games being refused a rating, which as mentioned is a virtual kiss of death for any game about to hit the market.

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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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