Violent game bill debate sides with industry

Who was there: San Francisco's debate forum The Commonwealth Club on Thursday hosted a panel titled "Should Sales of Violent Video Games Be Restricted?" Common Sense Media founder and CEO James Steyer and Activision Blizzard executive vice president and chief public policy officer George Rose took opposing positions on the topic, and Stanford Constitutional Law Center director Michael McConnell also lent his legal expertise to the conversation.

Senator Leland Yee, who penned the controversial legislation at question, was initially scheduled to appear on the panel. However, due to unexpected events involving California legislature, the senator backed out of the debate shortly before it began.

What they talked about: The topic of the night's debate centered upon California Assembly Bill 1179, which was argued before the US Supreme Court in November 2010. The bill sought to ban the sale or rental of "violent video games" to children and was signed into law by Governor Arnold Schwarzenegger in 2005 but was challenged in court before it could take effect. A "violent" game was defined as a "game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being."

Under the law, retailers that sold such games would be subject to a $1,000 fine. The bill would also have required "violent" video games to bear a two-inch-by-two-inch sticker with a "solid white '18' outlined in black" on their front covers. That's more than twice the size of the labels that currently adorn game-box covers and display the familiar Entertainment Software Rating Board (ESRB) rating.

Steyer opened the session by saying that the situation is a very straightforward issue from a kids' standpoint. The issue at stake, he said, is that over the past decade, a small segment of game makers have created sexually explicit and hyperviolent games. Common Sense, his family advocacy organization, doesn't take issue with the creation of these games. However, they do have an issue with the sale of these games, potentially, to minors.

According to Steyer, there's no question that there is scientific evidence that these products can have a negative impact on children. Specifically, he cited the reputable Journal of Pediatrics as a scientific source that has correlated game playing with real-life violence and aggression. He also stated that games can have an extraordinary impact on children's psychological development.

"We believe developers have a total right to develop their games," Steyer said. "Our only issue is sale. This is a sanity, not censorship approach."

He went on to say that very few of these games that fit into his definition are made by Activision, but the publisher has felt compelled to defend this very narrow segment. However, just like the sale of alcohol and cigarettes to minors is regulated, Steyer said the same should be done for hyperviolent games.

Steyer then addressed the point of industry self-regulation, in this case led by the Entertainment Software Rating Board. He acknowledged that this board has become more careful, but at the end of the day, further regulation is needed. Further, he said, this regulation will not create a slippery-slope environment that will impact other forms of entertainment. For him, the offending segment is very narrow. The purpose of the law is to make sure the people who are buying this content are adults. It balances the best interests of kids against the desire of the gaming industry to sell these products to kids, he said.

Rose, who has held various positions at Activision, including chief legal officer and general counsel, then picked up the conversation. He began by noting that retailers prevent underage alcohol sales about 82 percent of the time, and that this figure is very nearly the same as kids' ability to buy Mature-rated games. He then stated that the gaming industry should not be punished for something it hasn't done--flagrantly violating underage sales policies--and that self-regulation has proven that it can work.

Making an allusion to the maxim "The road to hell is paved by good intentions," Rose said that the bill before the Supreme Court is a perfect example of legislation going out of control. The law, he said, is based upon "junk science." The people who provide these studies are the most quoted on the Internet, he said, and this is telling. Further, these studies have no foundation, and he pointed to the 82 scientists who signed the amicus brief in opposition to the law as a good example of dissenting opinions.

Rose also noted that the bill is "probably one of the most convoluted constitutional statutes ever assembled." It has so many holes, he said, that it's "not even Swiss cheese; it's a donut." Calling out some of these flaws, he said that the bill does not pass muster with the Equal Protection Act, nor does it lay out how to apply or enforce the components that deal with obscenity.

Thirdly, even if all of this is true, and "even if there were hordes of crazy teenagers running around," the statute is unnecessary. He said that it's good business to follow self-regulation. "We don't want to piss off the parents," he noted, saying that it is in Activision's interest to ensure games are rated appropriately and pressure retailers into enforcing age-appropriate sales.

"We spend countless hours trying to improve the rating system. The system has been described by the Federal Trade Commission as the example for everyone," he said.

Rose also took issue with Steyer's statement that the law would affect only a tiny sector of the industry, before wrapping up by saying that the very definition of what constitutes a "virtual human being," as described by the bill, is vague, asking whether a zombie that metamorphoses into a monster counts.

McConnell was then given a chance to offer his opening remarks, and he led by saying that the justices will be thinking about this case in a different way than the other two speakers. After mentioning the 1968 case Ginsberg v. New York, which found that material not classified as obscene to adults can still be regulated with minors, McConnell laid out the three areas that the Supreme Court will focus its attention on: content, audience, and medium.

For content, he said, the court will ask whether there is some significant difference between the violence in games and the sexuality depicted in the "girlie magazines" at the heart of the Ginsberg case. However, he said that it won't be simple, because the bill has been framed so broadly. The framing has been further exacerbated, he said, by the "poor" way in which the state has defended the bill, which has been on an equally broad basis.

Namely, McConnell said that the way the state's arguments have been presented, it looks like the bill could easily extend to comics, cartoons, and other mediums. Mentioning Saturday-morning cartoons, he said, "If you think about what happens to Road Runner, there is a lot of violent material in our culture. They will be thinking about how big of a hit this will make on our culture."

Moving to the question of audience, McConnell said that there is a big difference between a 17-year-old and an 11-year-old, and this statute treats all of these age groups the same. He also noted that the Constitution is spotty as to the rights of children, considering that they can't drink, get married, be executed, or enter into contracts. "They, unlike adults, can be forced for eight hours a day to be exposed to information that we think they should learn," he mused.

McConnell said that the most interesting question for him lies in the question of the medium. The state did not present this situation very well by situating games in the same category as speech like books, newspapers, and so on, he said. What interests him, he said, is that this is an interactive medium. It's not a medium in which a message is presented and then received. Players are engaging in simulated activity where they are acting out the story.

"They are actually slicing people's heads off or beating them, or raping young girls on a simulated basis," he said. "It is not obvious to me, at least, that this is the same problem as a comic book. In a comic, you can see violent stuff, but in a game, they are the ones actually acting it out." He thinks that the court is going to be wary in saying that the same standards apply.

Because the statute is framed so broadly, he believes the court will be very concerned with how they decide. "The central feature is to not hurt the 'image of a person.' Is a zombie a human image? Is Road Runner a human image? There will be enormous difficulty here."

McConnell thinks the court is not likely to say that this kind of statute is constitutional. However, he also said that the court isn't likely to go as far as the entertainment industry has asked it to, which is to rule that all of these types of statutes are unconstitutional. They will strike this particular statute down, he said, and wait to find out if that "junk science" becomes real, so as to leave open the possibility that a different statute could be brought. They will keep their options open for the future, he said.

Opening remarks thus concluded, the session then turned into a discussion, with the moderator first asking Rose how, exactly, Activision has applied pressure to stores to enforce age ratings.

"We have had store clerks fired, and we have had particular stores improved. To be blunt about it, we had people fired," he said.

Steyer was then asked by the moderator what he viewed as being legal and not legal under the law. He began his response by first attacking Rose's argument that "junk science" is at play here, calling it insulting to say that the American Academy of Pediatrics is practicing junk science.

The other point to make, he said, is that it's absurd to let the gaming industry regulate itself, drawing comparisons to bankers and financial institutions and the Great Recession. "The idea that industry self-regulation will keep the interests of kids in mind is not a credible argument. The goal is to find a way to respect free speech, but to also protect the interest of kids," he said.

As to the moderator's original question, Steyer said that this category of games is very narrow and that it would be very limited. And the challenge, he said, will be to define that category. He believes that while it would be easy to construe this bill in broad terms, the court won't interpret it that way. In this sense, only about 1 to 2 percent of games would fall into this category, he believes.

Rose then asked Steyer whether Activision's top-selling Call of Duty franchise would fall into this category. Steyer said that the most recent release--Call of Duty: Black Ops, which has earned more than $1 billion for the publisher--would likely fall into the offending category. He also notes that debating Call of Duty is far more legitimate than "looking at something like Road Runner."

If Black Ops were given a restricted label under this statute, Rose said, then beyond the "scarlet letter" on the game's box, retailers would not carry it in their stores, and the game wouldn't have been made. The moderator asked Rose why this would be the case, and he responded by saying that there were about 5 million units of the game sold in California. With that much money on the line, it would not make sense, from a retailer's perspective, to risk having someone out there making mistakes, if each violation is a $1,000 fine.

He also brought up the NC-17 rating that is applied to movies. Upon conception, the rating would have allowed film makers to sell slightly more scandalous movies from, say, Europe, that had an art-house bent. However, in practice, these types of films don't show up in mainstream stores. As to Steyer's interjected point of industry self-regulation, Rose, who speaks with an Eastern European accent, said that letting the government regulate everything is "the country of Vlad. That's the Soviet Union. That is not the way America does business."

Rose was then asked whether America has a culture of violence and whether games are contributing to it. He believes that the US is "somewhat schizophrenic," in that it's permissible to engage in casual sex, but it's not OK to watch sexual images on TV. Rose said that he is far more concerned with the real-life violence depicted on the nightly news or in the Middle East. He thinks his kid is able to tell the difference between a real human and a virtual human, and it will ultimately make his kid a better human being.

The Activision executive also said that he took issue with the statement that games are somehow separate or different from other mediums. He said that all worthwhile works of art are interactive, from a mental perspective, calling the Bible one of the most interactive works in history. "How many wars were fought over it? If that's not interactive, what is? No video game can yet compare to works of art, literature, music."

As a non sequitur, the moderator asked each of the panelists whether they considered themselves gamers. In a somewhat abashed way, McConnell said that the only game he's ever played is Sid Meier's Civilization, noting that it was very addictive. Rose said that he'll play absolutely anything, ranging from Tetris to Grand Theft Auto. Steyer's game of choice is EA Sports' FIFA, he said.

Switching back to the statute, McConnell was asked what the implications of this law are, should it survive. One possibly theory is that all violence could be treated the same as obscenity or pornography, which it never has been, he said. Another theory is that minors are subject to less constitutional protection. Another theory is that this medium will be regarded as less than pure speech.

Steyer said that he believes the case will be limited to point of sale and that it will not be elevated to an argument over freedom of speech. Again, he conceded that McConnell's analysis is pretty spot-on. He also said that this case has had an unbelievably positive impact on the industry, in terms of regulating itself. However, he argued that if a person goes to Blockbuster, these places will follow the rules. However, if that person goes to a liquor store in Hunters Point (a notoriously dangerous area in San Francisco), that's where the problem sales will be.

Rose quickly interjected to that argument, saying that Activision sells games to Wal-Mart, Target, Best Buy, and GameStop, not liquor stores. Any game found in a liquor store, he said, is probably pirated, and if that establishment is going to sell a minor a violent game, then it is likely to defy alcohol and cigarette regulations as well.

The moderator then got back to Rose's assertion concerning junk science. Rose responded by bringing up the recent study published in Pediatrics by an Iowa State University professor. The study asked participants a series of "yes," "no," or "maybe" questions related to their game-playing habits and concluded that there was a link between pathological gaming and depression and anxiety in kids.

McConnell went on to note that the challengers of the law all concede to correlation in these studies, but not causation. "With human subjects, it's virtually impossible to conduct the kind of study that would show causation, because it would require control groups and subjecting people to potentially harmful material, and this is unethical," he said.

McConnell went on to say that the point is moot as it pertains to the Supreme Court decision, because they will likely operate from the assumption that these games can or might cause harm. He also said that the argument over industry self-regulation is immaterial, because the court will assume that "there are good apples and bad apples." What they will be looking at, he said, are questions of who the law applies to, what it actually means, and what the implications of it are.

Quotes: "Our only issue is sale."--Common Sense Media founder James Steyer

"If you had to be a betting person, my guess is that George's side is very likely to prevail."--Stanford constitutional law director Michael McConnell

"Is a zombie that turns into a monster the image of a human being?"--Activision chief public policy officer George Rose

Takeaway: All three panelists seemed to agree that CA 1179 will be struck down by the Supreme Court. However, what remains at question is how reaching the court's ruling will be and whether it will leave open the possibility of another, more narrowly crafted bill being brought that could regulate the sale of games.