The Clinton-Lieberman-Bayh bill will impose fines up to $5000 on store managers, "selling or renting a Mature, Adults-Only, or Ratings Pending game to a person who is younger than seventeen" (funny, as an "AO" rating, as defined for the ESRB, means "18+"), and will allow the Federal Trade Commission (FTC) to play an active role in analyzing game ratings and perform random "audits" of video game stores to "monitor enforcement and report the findings to Congress." In other words, this bill gives the FTC the ability to federally regulate artistic taste and send secret "agents" into stores who will report back to Congress with their findings.
Wow, it sounds like such a program is going to cost the taxpayers of this country A LOT of money, particularly when it's challenged time and time again for its constitutionality, which is inevitable, because it's an unconstitutional law.
In the closing of Clinton's FEPA press release (below), it states, "Illinois, Michigan, and California have all passed state laws to prohibit the sale of violent video games to minors." This is true. However, it's also true that, in each and every one of these states, the law is being challenged.
Federal Judge George Caram Steeh has prohibited the state of Michigan from enforcing its violent video game law because, "Plaintiffs have demonstrated that the Act is unlikely to survive strict scrutiny, and that irreparable harm follows from the loss of First Amendment freedoms."
In Illinois U.S. District Judge Matthew Kennelly ruled that the state's ban on the sale of mature video game to minors was unconstitutional and barred the state from enforcing the law, which was to go into effect on January 1st, 2006. Judge Kennelly cited the law would violate the First Amendment, and dismissed the state's evidence which pointed to a connection between violent video games and violent behavior.
Finally, in California, where Arnie signed the Violent Video Game bill into law just a couple of months ago, The Video Software Dealers Association has already filed suit against the state, declaring the Violent Video Game Law unconstitutional. We are still waiting on judgement in that case, but we're fairly certain California will follow in the path of Michigan, Illinois and, the unmentioned, Washington state (which also passed such a law that was later found to be unconstitutional).
Since this is the pattern of violent video game legislation, I find it odd that Clinton* cited California, Michigan and Illinois in her press release, and I find it odd that she thinks this law will solve the problem of kids getting their hands on video games. Once again, we know how the vast majority of kids get their hands on these games, and that's by having adults buy these games for kids, which this law doesn't (and shouldn't) address.
In fact, this law does not address this issue of children and violent video games at all. Instead, it focuses on a sensational finding by the less than honest National Institute for Media and Family, that "kids as young as nine" can buy M-rated games from certain stores. I've never believed these stats. First, "as young as" is a trap, as one nine year old buying a M-rated game makes it sound like an epidemic of nine year olds playing "GTA". Also, I find it very, very hard to believe that a store clerk sees a 9 year old alone in a store and just accepts the $50 that nine year old hands over. How did that 9 year old get there, and where did that nine year old get $50? I'd imagine there was an adult with that 9 year old, which is why the clerk went ahead with the transaction.
If you want to stop kids from getting their hands on games, you must stop confusing the issue. Stop making bills that confuse the ESRB ratings (is an "AO" 17+ or 18+?), and stop acting like the ESRB ratings aren't trustworthy. Stop making this a debate of constitutionality, and, instead, deal with it in a way that doesn't threaten 1st Amendment rights at all.
The solution to the problem is easy and cheap: Public service campaigns and support of the ESRB. Teach parents about the kind of material found in violent video games, so they don't blindly buy these games for their kids. Also, support the ESRB. They are a great organization, and if government supported them, they could be a lot more powerful. I want to see an ESRB that can tell a company like Take-Two that they won't rate their games for a certain amount of time if they ever pull a "Hot Coffee" stunt again, knowing full well, that most large retail chains don't carry games without ratings.
The solution is in front of us. It's relatively cheap, it's relatively easy, and it's definitely constitutional. It just won't get Clinton, Lieberman nor Bayh the kind of attention they're seeking as we get so much closer to the 2006 and 2008 elections.
*I point to Clinton as she's a very smart woman and politician whom I respect, I know nothing about Evan Bayh, and I have no faith in Joe Lieberman to do anything right).
From the Office of Senator Hillary Rodham Clinton
December 16, 2005
Senators Clinton, Lieberman and Bayh Introduce Federal Legislation to Protect Children From Inappropriate Video Games
Washington, DC ? With just over a week left in the holiday gift shopping season, Senators Hillary Rodham Clinton, Joe Lieberman and Evan Bayh, joined by parents, advocates and experts, introduced legislation designed to prohibit the sale of inappropriate video games to children. In unveiling the bill, the Senators underscored that video game content is getting increasingly violent and sexually explicit, yet young people are able to purchase these games with relative ease and parents are struggling to keep up with being informed about the content. The Senators emphasized that their legislation will put teeth in the enforcement of video game ratings, helping parents protect their children from inappropriate content. They were joined in making the announcement by April DeLaney, Director of the Washington Office for Common Sense Media; Norman Rosenberg, President and CEO of Parents Action for Children and Dr. Michael Rich, Director of the Center on Media and Child Health at Children's Hospital in Boston and Assistant Professor of Pediatrics at Harvard Medical School, in a show of support for the legislation.
?The holiday season is a particularly important time to raise awareness of this issue. Video games are hot holiday items, and there are certainly wonderful games that help our children learn and increase hand and eye coordination. However, there are also games that are just not appropriate for our nation?s youth,? said Senator Clinton. ?This bill will help empower parents by making sure their kids can?t walk into a store and buy a video game that has graphic, violent and pornographic content.?
"The content of many cutting edge games is becoming more and more vivid, violent, and offensive to our most basic values," Lieberman said. ?We are not interested in censoring videos meant for adult entertainment but we do want to ensure that these videos are not purchased by minors. Our bill will help accomplish this by imposing fines on those retailers that sell M-rated games to minors, putting purchasing power back in the hands of watchful parents."
?Many parents are being stretched thin trying to provide a good life for their children while protecting them from a coarsening culture,? Senator Bayh said. ?Our legislation will give parents a hand by requiring retailers to abide by the ratings that are meant to keep children from purchasing violent video games.?
The Clinton-Lieberman-Bayh bill, the Family Entertainment Protection Act, prohibits any business from selling or renting a Mature, Adults-Only, or Ratings Pending game to a person who is younger than seventeen. On-site store managers would be subject to a fine of $1,000 or 100 hours of community service for the first offense; $5,000 or 500 hours of community service for each subsequent offense. The bill also requires an annual, independent analysis of game ratings and requires the Federal Trade Commission (FTC) to conduct an investigation to determine whether hidden content like in Grand Theft Auto: San Andreas is a pervasive problem and take appropriate action. In addition, the bill will help ensure that consumers have a mechanism to file complaints with the FTC and that the FTC will report these complaints to Congress. Finally, the bill authorizes the FTC to conduct an annual, random audit of retailers to monitor enforcement and report the findings to Congress.
Senator Clinton was motivated to take action on this issue when it was revealed in July that Rockstar Games had embedded illicit sexual content in the video game Grand Theft Auto: San Andreas. This game had received a Mature rating from the Entertainment Software Ratings Board (ESRB), which was unaware of the embedded content. When the content was revealed, Senator Clinton called on the FTC to investigate the source of the content and announced that she would work to develop legislation to address this problem. Senator Lieberman wrote to Rockstar games asking them to come clean on whether the material was embedded in the game. Rockstar Games subsequently recalled the game.
Representative Joe Baca (CA), who has introduced legislation in the House to improve the video game ratings system, praised Senator Clinton for her involvement in this issue. ?I applaud Senator Clinton for introducing this legislation, and I look forward to working with her to help parents protect their children from exposure to inappropriate and harmful images.?
Illinois, Michigan, and California have all passed state laws to prohibit the sale of violent video games to minors.
The following is a summary of the Clinton-Lieberman-Bayh legislation.
Summary of The Family Entertainment Protection Act SENATORS CLINTON-LIEBERMAN-BAYH
Consider the following scenario: You have been captured by a demented film-maker who drops you into a gang-infested slum. While the gangs think they are hunting you, they don?t know the real plot: that you are hunting them, while the director records each act of murder on film. Since you are outnumbered and could easily be mobbed, you cannot just jump in and fight everyone. Rather, you must be silent and patient, tracking your prey so that you can strike from behind. You strangle a villain with a sharp wire, and a finely-rendered mist of blood sprays from his severed carotid artery?. ? First Person Account of Manhunt from Time Magazine, 2003
Video game content is getting more and more violent and sexually explicit, yet young people are able to purchase these games with relative ease. In its 2005, 10th Annual MediaWise Video and Computer Game Report Card, The National Institute on Media and the Family found that retailers were more lenient in their selling practices this year compared to last. Boys as young as nine were able to purchase Mature-rated games 42 percent of the time. At the same time, a majority of parents are feeling increasingly victimized by a culture of violence that makes it difficult to protect their children against influences they find to be inappropriate. This bill would help empower parents by putting them back in the driver?s seat. It would ensure that children can?t buy games the video game industry itself has determined to be inappropriate for them.
I. Prohibition on Selling Mature and Adults Only video games to minors
The centerpiece of this bill is a prohibition against any business for selling or renting a Mature, Adults-Only, or Ratings Pending game to a person who is younger than seventeen. On-site store managers would be subject to a fine of $1,000 or 100 hours of community service for the first offense; $5,000 or 500 hours of community service for each subsequent offense. This provision is not aimed at punishing retailers who act in good faith to enforce the Entertainment Software Ratings Board (ESRB) system. That?s why retailers would have an affirmative defense if they were shown an identification they believed to be valid or have a system in place to display and enforce the ESRB system. Similar prohibitions have become law in the last several months in California, Michigan, and Illinois.
II. Annual Analysis of the Ratings System
Since the bill relies on the video game industry to continue rating the appropriateness of games for minors, this bill requires an annual, independent analysis of game ratings. This analysis will help ensure that the ESRB ratings system accurately reflects the content in each game and that the ratings system does not change significantly over time.
III. Authority for the Federal Trade Commission (FTC) to Investigate Misleading Ratings
Part of the genesis of this bill was the revelation that the makers of Grand Theft Auto: San Andreas had included, through embedded code that was discovered and made accessible to the public, sexually explicit content inconsistent with the game?s Mature rating. This bill requires the FTC to conduct an investigation to determine whether what happened with GTA: San Andreas is a pervasive problem. It also includes a Sense of Congress that the Commission shall take appropriate action if it determines that there is a pervasive problem.
IV. Authority to Register Complaints
This bill requires the Bureau of Consumer Protection (BCP) of the FTC to ensure that consumers can file complaints if they find content to be misleading or deceptive and requires the BCP to report on the number of such complaints to Congress.
V. Annual Retailer Audit
This bill authorizes the FTC to conduct an annual, random audit of retailers ? sometimes referred to as a secret shopper survey ? to determine how easy it is for young people to purchase Mature and Adults Only video games and report the findings to Congress.