Q&A: Leland Yee on Nov. 2 Supreme Court hearing

State Senator who penned law at center of high court case says he hopes "guidance" will emerge from justices' decision.

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Last week, Entertainment Consumers Association general counsel Jennifer Mercurio explained how the case of Schwarzenegger v. EMA will play out in the US Supreme Court on November 2. Being part of a pro-consumer organization, she also explained why she thinks the California law at the center of the case--which criminalizes sales of "ultraviolent" video games to minors--will be declared unconstitutional under the First Amendment.

California state Senator Leland Yee (D-San Francisco)
California state Senator Leland Yee (D-San Francisco)

This week, GameSpot caught up with the author of the law, California state Senator Leland Yee (D-San Francisco), to ask him what he thought about the looming hearing. He also shared his thoughts on why he believes the Entertainment Software Rating Board is a fundamentally flawed organization and why games require more content oversight than films.

GameSpot: So the US Supreme Court is going to hear the case of Schwarzenegger v. EMA next week, which will determine the constitutionality of the law you wrote. What do you hope their overall ruling is?

Leland Yee: Well I hope the US Supreme Court will sustain the bill, the law that would ban the sale of these ultraviolent video games to children. At the very least, I believe that the Supreme Court is going to provide some direction to legislators who are interested in limiting the sale of violent video games to children. That's because this law has been struck down twice already--there was an injunction on it which we appealed and lost. Then we went to the federal appeals court and we lost again. So I am hoping the Supreme Court will look at this issue and at least provide some guidance as to what might be possible within the framework of the law.

GS: Now I know you're aware of the ESRB, the ratings system the games use. What is your issue with that? Do you think the system just doesn't have enough teeth, that it just doesn't promote enough what ratings mean to parents, that it doesn't give enough information to let parents make decisions on what games to buy for their children? Or is it that children already have access to violent games and it doesn't matter what their parents do or say?

LY: No, I think the problem with the ESRB rating is that the ratings system itself is rather biased. The ESRB is funded by the industry, so it's like the fox guarding the henhouse. Clearly, they're not going to legitimately and appropriately place any markings on any video games, because it's in the interest of the video [game] industry to sell as many video games as possible. You never heard of an AO rating whatsoever, because that would limit your market share.

The other problem is, as you remember, a while back, when they had the Grand Theft Auto "Hot Coffee" [content] stuck in there, and the ratings system, the ratings board never found out about that. So I think you need to look at a different way of rating and [use] a different technology to figure out the content of these ultraviolent video games.

GS: Now the movie industry has a similar ratings system and almost never issues an NC-17 rating to a film. How come video games warrant the extra scrutiny--backed up by a law criminalizing sales to minors--and movies don't? Is there something in the film model that could be adopted to rating games?

LY: It's a different technology. You go to a movie and you just sit there for two hours and see everything. Within video games, content is so embedded that you are unable to look at all the content in one sitting. For parents, it's hard to really know what the content is as opposed to a movie. Parents can sit and watch a movie. Within a game, you have to be pretty sophisticated to get to a level to see some of the more atrocious [in-game] behavior.

Look, I'm a strong First Amendment person. This bill is drafted narrowly. It's not against all video games; it's not against all violent video games. It's only against this small section of ultraviolent video games. This bill will sustain anybody who wants to make more atrocious kinds of violent games--they can still do that, they can still sell that, they can still make them available to adults. Interestingly, kids can have access to these ultraviolent video games even under my bill. All you have to do is go to your parents, talk to your parents, and if your parents want to get it for you, they can go to the store and get it for you.

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