Tonight, we join California Sen. Leland Yee and Blizzard VP/Chief Public Policy Officer George Rose, along with Michael McConnell, Director of the Stanford Constitutional Law Center, at the Commonwealth Club of California. Yee authored a bill banning the sale of “ultraviolent” video games to buyers under 18. Although the bill was passed into law, it was successfully appealed. The ultimate decision rests in the hands of the U.S. Supreme Court, expected to make a decision this spring.
First things first: Leland Yee isn’t here. He remained in Sacramento tonight to work on the budget proceedings. Instead, we have Jim Steyer, CEO of Common Sense Media, who is an advocate of Yee’s bill.
Jim Steyer: The issue is straightforward from a kids perspective. Over the past decade, there has been a segment of the video game media creating ultraviolent and sexually violent games. The only issue we care about is whether you can sell it to some 12-year-old kid, or whether the sale should be to someone over the age of 17. There is demonstrable evidence that [these games] have a very bad impact on children. We believe the creators and developers have a total right to make games; we support the right to create. Our only issue is with the sales.
George Rose: How many in the audience think it’s easier for a minor to buy a beer than to buy an ultraviolent game? (Show of hands). The industry, at this point, has done so much — it should not be punished for something it hasn’t done. It should be held up as a shining example of self-regulation. Yee’s law is a perfect example of “legislation out of control.” It’s based on junk science. Just about every court and scientist in the country, including 82 that signed a petition to the court, said there’s no foundation to anything that would show that playing video games, watching movies, watching rock and roll, would turn you into a monster and make you shoot somebody. The problem isn’t the First Amendment, the problem is the Second Amendment.
Yee’s statute is both under-inclusive and over-inclusive. It doesn’t describe how to apply it. Even if this were true that games make teens violent, the staute would be useless.
We don’t want to piss off the parents. We want to do it right. The stores themselves enforce the ratings. The system we have right now allows parents to know far more about the video games than any other form of media. The statistics show — 90% of the purchases of game sales are done in the presence of the parents. The law would fine the clerk who sold the game $1,000.
Under the definition of “ultraviolent” in the law, most of Activision/Blizzard’s games would qualify.
Michael McConnell: In 1968, under a precedent written by Justice William J. Brennan, Ginsberg vs. New York, it’s not inconsistent with the First Amendment to prohibit the sale of material obscene to minors. In the Ginsberg case it was “girly magazines.” It’s constitutional because the state had some reasonable basis for concluding that those materials are harmful. The SCOTUS is going to start with that precedent and see if it applies to video games. It will apply criteria:
1. Content: Does it make sense to say that the First Amendment protects the right of 16-year-olds to purchase ultraviolent games when they don’t have the right to purchase girly magazines? But it does seem that the argument would apply to many other media — movies, comic books, even Saturday morning cartoons. There’s a lot of violence in ordinary American culture. I think the SCOTUS will be worried about how big a hit this will make in American culture.
2. Audience: Minors. But 17-year-olds are very different from 11 year olds, but this law applies the same standard to both. I think the SCOTUS is going to be very concerned about that. My guess is they’re going to be worried about making a serious new law on the issue of when are minors subject to a different law under the First Amendment. Right now, we don’t know which constitutional laws apply to children.
3. Medium: California conceded that interactive media are considered speech, like print media. In video games, the gamer is engaging in simulated activity. They’re not just receiving messages, they’re acting out the story. The gamer is actually beating people, slicing off people’s heads, on a simulated basis, but it’s an activity in which the person is engaged in the extreme violence. It’s not obvious to me that this is the same as a comic book. I think the court is going to be wary that the same standard is going to apply to interactive media.
The vagueness of the law is very troubling. It’s about not maiming or killing an image of a person. Is a zombie a human? Is a character like Road Runner a human-like image?
The Supreme Court is not likely to say that this statute is constitutional. I think they’re going to strike it down. But I don’t think they’re going to go as far as say these types of statutes are unconstitutional — they might uphold more narrowly defended statutes in the future.
Moderator John Diaz: George Rose, how is the regulation currently enforced?
Rose: We get people fired for selling M rated games to minors.
Diaz: Jim Steyer, where do you draw the line? What would be illegal under this law?
Steyer: First, I don’t think the American Academy of Pediatrics is “junk science.” The breadth of the bill is challenging. The vagueness — that’s going to be the key issue that the justices will wrestle with. But I don’t think we can trust the video game industry to self-regulate when it comes to the best interests of kids. The goal is to find a way to respect free speech, to craft laws that are appropriate.
Diaz: Let’s get back to my question. What would be legal and illegal?
Steyer: [Sales of] very narrow category of games, and it should be. It would be really limited. The challenge is on the issue of how do you define it specifically. The author of the statute isn’t here. I think it’s for the court to decide.
Rose: But then it’s “I’ll know pornography when I see it,” and you spend the next 10 years arguing it.
Is Call of Duty [Activision] an ultraviolent game?
Steyer: It’s a very valid question. In Black Ops, there is a good possibility that they would say the sale of that game should be limited to those over the age of 17.
Rose: If that game were prohibited, Call of Duty would carry a restricted label, no store would carry it, and that game would never be made.
Diaz: Why would the law change stores’ willingness to sell these games?
Rose: Because of the “Scarlet Letter” sticker, and the $1,000 fine. Why would they risk selling something to a minor? It’s chilling not only my speech, but the speech of everyone else.
Diaz: Why would this rating be a “Scarlet Letter?”
Rose: Look at what happened to NC-17. Nobody wants to show them in mainstream theaters and nobody wants to carry them in WalMart.
Diaz: To Michael McConnell — the Roberts court has been fairly broad in its definition of speech. A recent example includes the demonstrations put on by the Westboro Baptist Church.
McConnell: It’s one of the strongest free-speech-protecting courts. They struck down a federal statute prohibiting the distribution of “animal crush” videos. There’s also the Citizens United case. If you had to be a betting person, my guess is that George’s side is going to prevail.
Diaz: An audience question regarding Bowling For Columbine. Are violent video games just a scapegoat for the culture of violence?
Steyer: To blame all the violence in the US on video games would be silly. The interactive nature of games is important. Very legitimate scientific data shows that games are different. The repetitive play contributes, but also becoming inured to violence.
Rose: This country is somewhat schizophrenic to begin with. If you look at sex, it’s quite OK to go out there and engage in consensual sex, but it’s not OK to show it on TV. In the case of violence, you can go to prison and be sentenced to death for the acts it’s OK to watch on TV. I’m more concerned about what my child sees on the nightly news, the real violence. I think my kid can recognize the difference between a virtual human being and a real human being. The people in Columbine were storing and stockpiling weapons in their bedroom. Their mother ignored loads and loads of ammunition and guns. That’s where the fault lies. It doesn’t lie with the state. Those kids would have done what they did, one way or the other.
I don’t agree that video games are special because they are interactive. The Bible is one of the most interactive works in history. People go to war over it. If that’s not interactive, I don’t know what is. What drove Charles Manson if it wasn’t the Beatles song? It’s a very simplistic way of looking at video games, and at art.
Diaz: An audience question. If this law survives the SCOTUS, what other precautionary laws might follow?
McConnell: Violence could become treated similar to pornography, which it never has been. Under another theory, minors are subject to more regulation with less constitutional protection. Under another theory, this interactive is considered as something less than pure speech. I can’t see it being treated as non-speech, but it could be subject to some lesser degree of protection under the First Amendment.
Steyer: Think Michael’s analysis is on point. This case had a positive impact on the video game industry. In the past 5-6 years it’s become much more responsible about the sale to minors, and that’s a very good thing.
The kids out in Hunter’s Point are buying these games in liquor stores. I don’t think the industry is getting clerks fired out there.
Diaz: Who is the average gamer?
Rose: The average gamer is 32. About 60% are male, 40% are female. Only 5% of games sold last year were rated M.
Violence among kids has steadily declined. I think it’s mostly thanks to good parental care. To say that all we’re doing is plotting how to sell our dirty little games to little kids, that’s pretty myopic.
Diaz: What about the sales at corner liquor stores?
Rose: Don’t know what liquor stores Jim hangs out in. We sell to WalMart, we sell to Best Buy, we sell to GameStop. The same liquor store that sells these games to kids is the one that would sell a 12-pack of beer to a minor.
Diaz: Which studies do you consider “junk science?”
Rose: One study asked kids the question, “Do you play video games?” “How often?” “Did you have a fight with your teacher?” “Are you depressed?” Is this how you want to decide how to restrict a whole class of people and deprive them of their constitutional rights? The statute is that broad. It’s not just about video games. It could be about anything.
McConnell: All of the studies show correlation and not causation. I don’t think that’s going to matter. You can’t show causation when you’re talking about human subjects. It’s virtually impossible to conduct the kind of study that would show causation because it’s unethical to subject people to certain stimuli. The SCOTUS is going to assume that this kind of game can or might cause harm. Then, given that assumption, they will look at whether the statute is constitutional. I don’t think they’re going to get into the question of the studies. Also don’t think they’re going to get into the issue of self-regulation.
Steyer: I think there’s clear evidence about correlation. There’s no question that there’s potential harm.
Diaz: Audience question: Why should the government get involved at all? Is this a failure of the industry or of parents?
Steyer: A major portion of the public and the medical profession feel there’s harm involved. At the end of the day, this is a nuanced case. It’s not all the video game industry’s fault. It’s not all the parents’ fault.
Post-debate analysis: It’s a little disappointing that Leland Yee couldn’t be there tonight, since so much of the debate focused on the vagueries of the bill and how, exactly, terms such as “ultraviolent” and “human figure” would be defined. His stand-in, Jim Steyer, does side with Yee on many points but wasn’t able to answer questions about the bill very well. I think one of the key — and most worrisome — aspects of this issue is one McConnell raised: What, exactly, are the constitutional rights of minors, particularly when it comes to the First Amendment? Should they be allowed to purchase violent video games in a country where they can’t legally purchase pornography? Or is this yet another category of media that the government is interested in “protecting” children from?