Senator Hillary Clinton (D-NY) proposed new legislation on Thursday that would make it a federal offense for retailers to sell a minor a video game that includes violent or sexual themes. Her bill would impose a $5000 fine on any retailer that sold a youngster a game that was classified as mature or violent under the video game industry's voluntary ratings system.
The Clinton bill might best be thought of as a "hanging the industry with its own rope" regulatory scheme. That is, her bill would hijack the industry's voluntary ratings system and then use it against them (and retailers) should someone choose to sell a game with mature or violent themes to someone under the age of 18.
The problem with this regulatory scheme is that is will have two related unintended consequences. First, if federal officials threaten to use the industry's voluntary ratings scheme against them in this fashion, some developers might choose to abandon the voluntary scheme altogether. Second, if enough developers did abandon the voluntarily ratings scheme, it would likely lead to calls by Mrs. Clinton and others in government to impose a mandatory federal ratings scheme on this industry. And that poses serious First Amendment issues since the government (either the FCC or FTC, I assume) would be required to define what constituted "excessive violence" or "mature themes" in electronic games.
What makes this so troubling is that the video game's voluntary ratings scheme is outstanding and a real help to millions of parents like me. While most media sectors today have ratings systems of some variety, some of these ratings schemes are more descriptive than others. The video game industry's system is the best.
In 1994, the video game industry formed the Entertainment Software Ratings Board (ESRB), an independent ratings body for computer software and video games. It is, by almost all accounts, the most comprehensive and descriptive ratings scheme yet devised by a major media sector. ESRB ratings provide parents and consumers with six age-based ratings categories (Early Childhood; Everyone; Everyone 10+; Teen; Mature; Adults Only 18+), but then also go much further by providing more than 30 different "descriptors" explaining the precise type of content consumers will see in the game.
The movie industry's ratings system, while not as descriptive as the video game industry's, provides a well-known 5-part ratings scheme (G, PG, PG-13, R, and NC-17) as well as some content-specific descriptors that appear before a movie begins.
The television ratings system builds on this model with six age-based ratings (TV-Y (all children); TV-Y7 (for older children); TV-G (general audience); TV-PG (parental guidance suggested); TV-14 (not recommended for children under 14); TV-MA (for mature audiences only)). In addition, programs often contain four single-letter descriptors to specify whether the program contains intense violence (V), sexual situations (S), coarse language (L), or suggestive dialogue (D).
It goes without saying that these ratings schemes are probably not perfect, although one struggles to imagine how the video game industry's system could be any more detailed without becoming unnecessarily cumbersome. Some critics claim the age-based ratings employed by the movie and television sectors are not clear enough, or that they could be more descriptive like the video game industry's system. Efforts have been made to improve or update at least the movie industry ratings scheme over time. The television ratings system, which is still quite young, will probably evolve too, and pull-up, on-screen menus are already providing much additional information for cable and satellite consumers.
But, regardless of the current efficacy of any of these ratings schemes, the important question here is whether the government should have any say over how video programming is rated. Any attempt by government to impose a mandatory ratings scheme on industry would almost certainly run afoul of the First Amendment. Realizing this, many policymakers have long favored the hang-industry-with-their-own-rope approach. Again, the thinking here is that government would not seek to create its own, constitutionally-suspect ratings scheme but, instead hold the industry liable in some fashion for supposed failures to use their own ratings system properly.
Again, these ratings systems are a subjective, imperfect science. Clearly, some in government, and perhaps even many average citizens, believe that industry could "do more" to provide better ratings or information. But it does not follow that government should be the one "doing more" by taking the extreme step of regulating video programming or hijacking an industry's rating system. This is especially the case since regulatory efforts like the Clinton bill would almost certainly lead some developers to opt-out of their voluntary ratings scheme altogether to avoid the threat of legal liability.
Finally, while it is beyond the scope of this discussion (but will be the subject of my next major paper), measures like the Clinton bill ignore the reality of technological and media convergence and the special problem it creates for regulators. While these regulatory schemes may sound fairly straightforward to those in Congress, anyone who understands the nature of electronic networks, the Internet and interactive / adaptable media, realizes that such scheme could cast a much wider net than lawmakers realize. For example, if a random Joe develops a piece of freeware that involves a violent game of bloodsport of one variety or another (and this has been done many time on the Net already), how will this law cover it? And what about games that come bundled with some other piece of media, like a DVD or compact disc, and are on the same disc? Does that open up the movie or music to a ratings scheme too? If not, why not?
You get the point. The Clinton bill would open up a real Pandora's Box of enforcement difficulties for the feds. Of course, it will all likely be struck down as unconstitutional by the first court that gets its hands on it, so perhaps I'm just wasting my breath here.
Regardless, as a parent of two kids, and as a life-long gamer myself, I say keep your hands of my X-Box Hillary! My wife and I can decide for ourselves what is right and wrong for our kids. And if they buy a game we don't like at the store, we'll find out about it soon enough. After all, where are they going to get the money to buy that game?