When I suggested in July that the Entertainment Software Ratings Board penalize developer Rockstar Games for violating the video game industry's sovereign rating system and subsequently inviting the vituperation of New York Senator Hillary Clinton, I appended the condition that a chastened Rockstar would yield the industry a more defensible position, and not a settlement.
What happened? A software company known well for its lurid products smuggled an X-rated, interactive sex scene into Grand Theft Auto: San Andreas, a game owned by a number of teenagers who — according to the ESRB, which rated San Andreas "Mature" — should not have played it until their seventeenth birthday. The offending sequence, "Hot Coffee," embarrassed the ESRB and the Interactive Entertainment Merchants Association, which by near-universal retail representation pledges to enforce the ESRB ratings. It also attracted the attention of Hillary Clinton and Joseph Lieberman, who with a coterie of senators introduced the "Children and Media Research Advancement Act," or CAMRA, legislation devoting $90 million to the five-year vivisection of an entire industry.
The ESRB and the IEMA were obeisant, effectively driving the game from the market. But that didn't placate Clinton, and a 2005 study conducted by the National Institute on Media and Family — condemning the video game industry's cordon sanitaire as downright porous — was part of the senator's November 29th press release heralding a companion bill to CAMRA.
As announced by Clinton's office, the proposed legislation would not only anneal ESRB ratings with the force of law by banning sale of games rated "Mature" to minors but conduct audits to verify retail proprietors' compliance with ESRB ratings, and federally scrutinize the ratings themselves. The bill would empower a Federal Trade Commission investigation of the possibility that Grand Theft Auto: San Andreas was not an outlier but a bellwether, and Clinton's Sense of Congress would invest in the legislature authority to punish the development industry itself.
Video game companies are already wary of the collective notoriety brought by the meretricious capers of Rockstar Games. A system assigning legal consequences has been protested by the industry on grounds of its chilling effect, and — with film, literature and art industries operating virtually unrestricted — rightly so.
What stuff of American life is sequestered from youth? Juvenile consumption of liquor and tobacco can, of course, be prohibited by Congress through the interstate commerce clause in Article I of the Constitution. Video games, as goods intended for sale between states, would be subject to the clause but for their status as artistic expression, which affords them consideration and protection under the First Amendment. In several states a minor's purchase of or contingent exposure to obscene communicative items has been outlawed, at both municipal and capital levels, relevant statutes upheld by the United States Supreme Court — first in the 1968 case Ginsberg v. New York and seven years later in Erznoznik v. City of Jacksonville. Well, now Hillary and Joe would like to try from Washington.
There are two obstacles. First, the legal definition of obscenity has been for thirty-two years "Prurient, patently offensive depiction or description of sexual conduct" that is without "serious literary, artistic, political, or scientific value." Prurience is central here, prurience an exclusive and sempiternal denotation of salacity. It just so happens that of the 957 games currently rated "Mature" by the ESRB, thereby judged unfit for sale in nine of ten retail stores to minors sixteen and under, only 39 ratings — 4 percent — were predicated on sexual content alone. Depictions of violence qualified the other 900-odd. Outside micrometric circumstances of fighting words and other incitement, lawmakers can neither silence nor restrict dramatized injury and death.
The Entertainment Software Association has reported that only 12 percent of all games sold in 2003 were rated "Mature" — increase that, for the sake of argument, to one-fifth, and the representation of potentially obscene games is still only tenths of a percentage. Prohibition for the one bawdy game per every gross? Out of the 1957 high court opinion deciding Butler v. Michigan in favor of a pulp peddler came a warning to legislatures that a sanction had better be proportional to the license it is designed to attenuate. Second, behind all this is the federal judiciary's insistence, shared from court to court, on "community standards" to determine what constitutes the prurient interest — which blocks federal override.
So? Clinton's twin bills are a hassle, not likely to be passed by Congress, signed by the president or accepted by the Supreme Court. Oh, but they are a hassle, and the industry ought to deprive Washington of an argument for expropriation in the public interest.
The advantage of choosing private supervisors over government regulators is that the freedoms of speech and press are expressly intended, and the free market best equipped, to provide a forum for the acceptance or rejection of expressions and productions. Video game makers and sellers can vindicate self-discipline. The Motion Picture Association of America's rating scheme, having endured for the balance of four decades, is an example of a reliable system when utilized by conscientious families, a standard to which the ESRB and the IEMA aspire — and can certainly reach.
What about non-governmental critics? The National Institute on Media and Family, entertainment industry gadfly, does not advocate censorship. Video gamers don't care for the Institute's statements about their pastime, and they resent the Institute's disapprobatory report being one of Senator Clinton's primary documents. Well, yes, it was rather convenient how one obliged the other, but popular antagonism is OK. If denigrating claims were by themselves cause for lawmaking Congress would long ago have interdicted every brand of paper towel that Rosie the Waitress proved wanting for capillary action.