LGJ: Revenge of the Regulators

Each week Mark Methenitis contributes Law of the Game on Joystiq ("LGJ"), a column on legal issues as they relate to video games:

There's an old saying by Benjamin Franklin: "The definition of insanity is doing the same thing over and over and expecting different results." By that definition, most of the attempts to regulate video game content are insanity. Most have taken the same approach, with the exception of Jack Thompson's last attempt in Utah, which at least took a new angle. It's for this reason that I'm always interested in new takes on the now tiresome idea of regulating game content, and when GamePolitics posted one such new research paper by Renee Newman Knake, Assistant Professor at Michigan State University College of Law, earlier this week, I took the time to read it. But when you boil down this "new approach," is it really something novel, or just more "insanity?" Well, that's what we're going to explore today. I do want to say, before I get started, that much of the legal analysis is relatively sound, and as many problems as I have with this paper, the author does deserve some credit for those parts of the analysis.

The paper's main focus is a discussion of "ecogenerism," and thus my discussion will largely be a dissection of the notable flaws in this approach. However, it is worth noting outright that this entire paper either makes its agenda quite clear from the outset or frames the debate in a less than accurate way to make the discussion seem greater than it is, as it starts from the basic flawed premise that we have "proven" a "causal" link between media violence, specifically video game violence, and real world violence. Even a cursory read over sites like VG Researcher and GamePolitics indicate the contrary. The supposition further ignores any benefits games may provide. Most importantly, it still ignores many of the fundamental flaws in video game research that have been pointed out in great detail. And the paper even ignores the more recent FTC data on the sale of violent games to children in favor of outdated metrics in order to cast a more negative light. But even ignoring this, the ecogenerism argument still has some substantial shortcomings.

Let's start with the basics. "Ecogenerism" is the creation of Professor Barbara Bennett Woodhouse, and the basic premise is simply this: There needs to be a paradigm shift in the analysis of laws to protect children in the manner of the shift in laws that protect the environment. After all, there was a time when the environment was not something that could be allowed to get in the way of business and free enterprise. So, the theory is that the paradigm needs to shift such that children are viewed like the environment, and that games and other "bad" media needs to be controlled like pollutants or toxic waste. The theory centers on valuing interconnected systems over individual rights, though seems to ignore the force of the Constitution in sacrificing these rights. The theory posits that we want a "healthy" environment for children to grow up in, but notably omits whose definition of "healthy" is being applied.

It's at this point where a few major disconnects in this analogy and further analogy are passed over by both Prof. Woodhouse and Assistant Prof. Knake. It's actually difficult to find a good place to begin because of the numerous problems with this argument and others presented in this paper. So I'll start with the most meta issue and work down to a few specific references on other points. The first major stumbling block for this theory is that there is no comparison between the right of free enterprise and the right of free speech. Business has been subject to government controls since the birth of this nation, but speech has always enjoyed nearly true freedom. To say that a simple philosophical principal is on par with a Constitutional right is simply misleading, and the courts have been uniform in their stance that free speech is not something easily limited by government. Yes, the paper is correct in that some of the analysis is inconsistent between courts that have addressed this issue, but that is a common occurrence prior to a Supreme Court decision on the matter. It is far more telling that even with these differences in approach, the result has been consistent in all jurisdictions: Video games are protected by freedom of speech. And that freedom exists, above all else, to protect the speech that most people would want to repress, not the kind, flowery speech that raises no eyebrows.

The second is that the idea of parental controls are ignored because of the failures of the V-Chip. While the V-Chip is certainly anything but a success story, the parental controls integrated into current generation consoles are far more robust and easy to understand and integrate. More importantly, it's not like the content is a surprise. If you bring a computer home, you know what your kids can get into on the internet, and if you bring a game console home, you know the kind of game content that is out there. As clueless as many allege parents are, you would have to be living in a cave on Mars with your fingers in your ears and your eyes shut to not know there is game content that is inappropriate for children between the advertisements and the often overblown news stories on those topics.

A more appropriate analogy here might be vitamins. A multi-vitamin for children, in appropriate doses, has many positive and no negative side effects, except in rare cases. However, an overdose of vitamins can be fatal. Parents who bring home vitamins don't put them out in a dish on the floor and let the kids go nuts with them; they keep them in a childproof container and give them one a day. Similarly, video games, in appropriate doses, have been shown to have major cognitive and hand eye coordination benefits, except in rare cases when the child is, for example, mentally disturbed. Letting your 8 year old play Gears of War for 10 hours a day, on the other hand, may very well damage their mental state and emotional well being. So, as a parent, isn't it prudent to turn on the parental controls and console limits -- the "child proof cap" -- of the digital age, rather than just let the kids do as they please?

The third deals with a quote from page 33 of the paper, "As with contagious diseases, and firearms, when one child in a peer group is exposed to risk, the entire group is potentially exposed." While on its face this is true, because kids play games at friends' houses, the implication by association is absurd. A video game is not meningitis or AIDS, where occasional, isolated, or incidental exposure can lead to serious injury or death. Nor is a video game anything like a handgun, where exposure can lead to someone being seriously wounded, maimed or killed. Spending an hour with Halo or Borderlands at a friend's house isn't even in the same galaxy of potential harm as a kid having a gun or a serious illness at school.

The fourth deals with the incongruous ideas presented beginning on page 28. Postal II is cited as the game that the California law targets; though Grand Theft Auto is more often targeted as the "blight" of the game industry. However, the statute, as written, doesn't seem to understand the idea of a sandbox game, and if Grand Theft Auto IV is taken by it's missions, has a significant storyline with the same kind of political statement as the average Scorsese film. If Metal Gear Solid 4 had its political message placed in a GTA sandbox setting, then these restrictions would be impacting political speech, which is the most sacred and the most protected form of speech under the First Amendment. It is this lack of a true knowledge of the content that continually appears in so many arguments for video game regulation.

Finally, the paper contends and the ecogenerism theory contents that mass media has replaced parental control, and that parents are unable or unwilling to fight back. If parents are not in control, then the issue is not with the media; it's with the parents. Delegation of responsibility is not the solution. Moreover, if their point is to be accepted as true, then what makes any of these regulators think their regulations will actually have an impact? Kids can get around their parents; kids already get around laws for alcohol and tobacco. What makes this different? And as digital media increases and digital distribution increases, it will be even easier to avoid retail-based controls which require ID.

I could probably continue for pages with issues like these, but I am going to stop myself at this point. The question remains: Is this truly a new view on video game violence? No. This is, at best, a rose by any other name; or rather, another way for politicians to impose their will on the public at large such that a minority who wish to demonize one media can control what happens in the living rooms of the American public. The courts have frequently said that the activity of the bedroom is beyond the scope of government control, and I, for one, think the activity of the living room should be as well. Perhaps they should be less worried about the content, and more concerned with the impact some games have on people's real lives through addiction, and even then bans and restrictions won't be nearly as useful as simply educating the public and helping those who need help.

[Image Credits: Moe and Simon Strandgaard]

Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc., where he is a board member of the Dallas chapter. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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