The Political Game: A brief history of video game legislation

Each week Dennis McCauley will contribute The Political Game, a column on the collision of politics and video games:

A well-known philosopher – I think maybe it was Doug Lowenstein – once said, "Those who do not learn from history are doomed to repeat it."

How true.

Since this a brand-new column about the politics of video games, it seems like a good idea to kick things off with a short history lesson on video game legislation in the USA. That way, if I get canned, some geek can collect these columns for the Wikipedia and they'll have a logical starting point (today's column) and a logical ending (a future Joystiq e-mail with the subject line, "You're fired").

So, pay attention. This means you, Jack Thompson.

Although the specter of legislation was initially raised in the mid-90's by Sen. Joe Lieberman, the video game industry was able to hold the Connecticut Democrat at bay by creating the Entertainment Software Rating Board as the keystone of its new voluntary compliance system. The theory was that the ESRB would rate the games. Parents would pay attention to the ratings and not buy their ten-year-old an M-rated game full of carjacking, bloody murder and hooker sex. Stores wouldn't sell the naughty games to kids. Didn't always work out that way, through no fault of the ESRB.

Fast forward to 2000. Just-elected Indianapolis Mayor Bart Peterson decided that regulating kids' access to the coin-op arcade gore fest House of the Dead would make Indy a safer place. The resulting law restricted those under 18 from playing or even viewing violent games and required the violent game machines to be at least 10 feet from the non-violent ones. Did Peterson think the blood and guts from House of the Dead was going to somehow infect the Sonic machine next to it? Ultimately, Federal Judge Richard Posner saved the day for the coin-ops, ruling that the Indy law "curtails freedom of expression... People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble."

In 2002 the city of St. Louis took the Indianapolis law one step further, prohibiting not only coin-op play, but retail sale or rental of violent games to minors. Different approach, similar fate. The 8th Circuit Court tossed the law for much the same reasons that doomed Indy's. A city attorney expressed bitter disappointment, called the Federal Court ruling "a blow to the parents of St. Louis County and the kids." That was three years ago, and, last time we checked, St. Louis hadn't been overwhelmed by a GTA-like wave of youth violence. As a matter of fact, youth crime levels have been trending downward for years.

The first of many state-level bills surfaced in Washington State in 2003. A Democrat, Mary Lou Dickerson, introduced a bill that made it illegal to sell a game that allowed the player to kill or injure police and firefighters.

Nice sentiment, flawed execution. I distinctly recall Doug Lowenstein speaking about the problems with Dickerson's bill at E3 that year. What if the cop was corrupt and coming to kill your character, Lowenstein asked. Or if he was some of kind of murderous space policeman guarding an evil empire in a sci-fi shoot 'em up? The bill was signed into law by Washington's governor, and ultimately ruled unconstitutional by a Federal court.

Anyone seeing a pattern here?

Zip ahead to 2005. Fueled by the Hot Coffee scandal, three states pass video game legislation in a single year, including the chewy center of the U.S. video game industry, California. All three laws were directed primarily at retailers, prohibiting them from selling M-rated games to minors. Federal Judge Matthew Kennelly almost immediately ruled Illinois' law unconstitutional. Just last week, Kennelly added insult to injury by ordering the state to pay the video game industry's legal fees, to the tune of a half-million dollars. A Michigan law was similarly disposed of. California's video game statute was blocked from going into effect by a Federal District Court judge in San Jose last December. It's still in limbo as we wait for the Court's final ruling.

If legislators have learned anything from these courtroom losses, they're not showing it. Three more states – Oklahoma, Minnesota and Louisiana - passed video game laws this year. The sponsor of Oklahoma's bill, Republican Fred Morgan, told a local newspaper in 2005 that he wanted to pattern his bill on the Illinois law – three days after the Illinois law was ruled unconstitutional. Minnesota passed the most bizarre law so far, a measure that would have fined underage buyers $25 for trying to purchase M-rated games. The bill's author, Democrat Sandra Pappas, rather famously told GameSpot, "Legislators don't worry too much about what's constitutional."

But judges do, and the Minnesota bill went down in constitutional flames mere weeks after passage.

And then there's Louisiana, where none other than Jack Thompson crafted the state's video game legislation. That bill, still under consideration by a federal judge, rates an entire column by itself, so watch this space. By the way, I've only written about state and local bills that have made it to final passage today. There are dozens of others that died in committee or failed in their respective legislatures for one reason or another. Nor have I touched on congressional legislation. We'll save that for another time as well.

Finally, before you dash off an angry e-mail to tell me that the "doomed to repeat history" quote is actually from George Santayana, don't bother. I've got all of his albums. "Smooth" is like my favorite song.

Dennis McCauley is Editor of GamePolitics.com and writes about games for the Philadelphia Inquirer. Opinions expressed in The Political Game are his own. Reach him at dennis@GamePolitics.com.