With the Supreme Court of the United States (SCOTUS) recently deciding to take a look at the California “Violent Video Game Law”, talk has picked up again about the legality of these kinds of measures. Time and time again, they have been struck down by courts in various states when governments have tried to enact them, much to the chagrin of lawmakers who suffer the double indignity of having to pay the legal costs of the Entertainment Software Association (ESA), the industry organization tasked with defending from these kinds of actions. Still, the SCOTUS reviewing this law is a big deal because it can set a precedent that will open the door for states, including the 11 who have filed supporting briefs), to enact these laws.

Gamers, of course, take the position that this is a terrible thing, fueled by a perceived attack on their hobby by big government. The blogs and the ESA also make sure we all know that once again our hobby is coming under scrutiny again. And looking at this purely as a gamer, it is tiring that video games continue to be a whipping boy for ignorant politicians and their vote pandering efforts. We are under attack, whether it be from government, media, special interest groups, or whatever. Still, as a parent who will, in a few years, be in a position of having a little less oversight over the daily activities of my children, I wonder if it’s possible that this law isn’t such a bad thing.

Now, before you fire up your flame machine and give me your scathing comments, let’s acknowledge a few things. Until recently, all I knew about this topic was what had been reported, which these days tends be one-sided, whether via traditional media or gaming blogs. Also, I’m not Republican nor Democrat. I’m Canadian, which apparently means I’m somewhere between Socialist and Communist in many eyes. That aside, being Canadian gives me a bit of a different perspective, because I’m not going to get caught up in the whole “First Amendment” thing that tends to be the first card played in any of these discussions. I understand that our U.S. friends tend to cite constitutional amendments with a passion, but I find they’re sometimes applied very vaguely. In fact, I believe that citing the First Amendment isn’t the wisest thing to do here, though I acknowledge that it might be the simplest, legally. Sure, you should protect the rights of game developers to make any kind of game they want under Freedom Of Speech. But the right to sell them to minors? Morally, I have to say that’s a bit uncomfortable. Anyways, that’s going to be up to the courts to decide. So I’m going to look at this differently, without getting into your constitution and all its amendments. There, political stuff done.

To address the one-sided aspect of what we know, I did some research, including reading the chaptered online versions of the bills in question, CAB 1792 and 1793 and analysis from both sides of the debate and from the Assembly and Senate themselves. So what did I find from a parent’s perspective? Let’s start with CAB 1793.

CAB 1793 (2004)

The original version of this bill was actually much more severe. It required AO (Adults Only) games to be sequestered in a separate area marked appropriately like the back room of so many video stores of days gone by. You know, the ones with beads or other paraphernalia covering the entrance? Also, M for Mature games had to be placed on separate shelves. In addition, retailers were required to post a sign detailing the ESRB system in great detail, including the rating symbols AND all the descriptors. There were also fines and other strict language in the law. There were other minor provisions like exempting libraries from the AO policy (strange, but whatever), but these were the meat of 1793.

The actual CAB 1793 after various amendments and changes? After getting definitions and preamble out of the way, the law states:

(b) Every video game retailer shall post a sign providing information to consumers about a video game rating system or notifying consumers that a rating system is available to aid in the selection of a game. The sign shall be posted within the retail establishment in a prominent area.

(c) A video game retailer shall make available to consumers, upon request, information that explains the video game rating system. [CAB 1793, 2004]

So, basically, CAB 1793 requires retailers to display information about the ESRB ratings system, and to give more info on request. A lot more watered down from the original text of the law as introduced. I honestly don’t see an issue with this. Many retailers are doing this already. Sure, it’s easy to find info on the ESRB ratings system, but many video game buying parents still have no clue about it. At least if we can educate them at the point of sale, then more people will understand how the system works, and they can make better decisions. Maybe mom won’t buy Grand Theft Auto for 12-year-old Johnny after learning what the M means. Educating more people is never a bad thing in my books. And I don’t think this would be too arduous on the few retailers who aren’t already showing this info in stores.

Heck, I wouldn’t have had much problem with the Adult Only area and the separate, perhaps higher shelving for M games. Saves little eyes from seeing some perhaps questionable box covers, and would also take away the temptation for little ones to ask for a game they shouldn’t have. At the very least, a separate shelf for M games would actually add some semblance of organization to some retailers’s game sections. Walmart, I’m looking in your general direction. But I digress. As CAB 1793 looks to be currently written, as a parent, I welcome it, and even as a gamer, it really shouldn’t affect me one way or the other. Unless I’m 12-year-old Johnny who almost pulled a fast one over on my mom.

Of course, there’s a reason why I started with CAB 1793. It’s fairly innocuous. So we can get the “easy” one out of the way and concentrate on the bill that’s the REAL cause of all the fuss, CAB 1792. As we’ll see, this one isn’t quite as straightforward.

CAB 1792 (2004) aka CAB 450 (2005) aka CAB 1179 (2005)

This is where the “banning” aspect comes into things. Let’s take a look at the relevant sections of this bill, leaving out things like definitions and what not that you’re probably smart enough to figure out on your own. For those of you with eagle eyes and have read the bill, you’ll note that I’m kind of doing this out of order. This is purely for presentation purposes, and I’m not trying to pull any wool over your eyes. We start with the language banning the sale of violent video games to minors. . .

1746.1.  (a) A person may not sell or rent a video game that has been labeled as a violent video game to a minor.

(b) Proof that a defendant, or his or her employee or agent, demanded, was shown, and reasonably relied upon evidence that a purchaser or renter of a violent video game was not a minor or that the manufacturer failed to label a violent video game as required pursuant to Section 1746.2 shall be an affirmative defense to any action brought pursuant to this title. That evidence may include, but is not limited to, a driver’s license or an identification card issued to the purchaser or renter by a state or by the Armed Forces of the United States.

(c) This section shall not apply if the violent video game is sold or rented to a minor by the minor’s parent, grandparent, aunt, uncle, or legal guardian. [CAB 1179, 2005]

Here’s the penalty as well. . .

1746.3.  Any person who violates any provision of this title shall be liable in an amount of up to one thousand dollars ($1,000), or a lesser amount as determined by the court. However, this liability shall not apply to any person who violates those provisions if he or she is employed solely in the capacity of a salesclerk or other, similar position and he or she does not have an ownership interest in the business in which the violation occurred and is not employed as a manager in that business. [CAB 1179, 2005]

The definition of a violent video game is coming up in a moment, but this is the part that prohibits it and what a defendant needs to do to keep themselves in the clear. Interesting to note that a parent or similar figure of authority is still allowed to sell a game to their child of responsibility. Also, store clerks are not subject to be fined unless they are a manager or owner, even though they are the ones who are directly involved in the sale. I would have thought you’d have some penalty for the negligent clerks as well, but I guess it’s all on the owners/managers.

Again, I have to say, as a parent, I have no problem with this. Retailers should be “doing the right thing” and denying sales of inappropriate games to children based on the ESRB rating system anyways. I do as much as I can as a parent, but there are still enablers out there that can somehow get my kids playing stuff I don’t want them to, like friends whose parents don’t care, for example. Why not have an avenue to eliminate one possible enabler, especially one who stands to profit from this behaviour? Most reputable retailers will do this anyways, so why not make it illegal and make doubly sure?

Well, part of the problem lies in the fact that the ESRB rating system, much like the Motion Picture Association of America rating system, is voluntary. There’s no actual law prohibiting a child from seeing an R-rated movie. Legal enforcement of these kind of systems doesn’t seem palatable to anybody, really. The industry groups would rather not have their systems become legal standards, lest they be subject to government interference. And government would want more control over these systems if they became law. Indeed, this law would bypass the ESRB altogether. . .

1746.2.  Each violent video game that is imported into or distributed in California for retail sale shall be labeled with a solid white “18″ outlined in black. The “18″ shall have dimensions of no less than 2 inches by 2 inches. The “18″ shall be displayed on the front face of the video game package. [CAB 1179, 2005]

2×2? That’s pretty conspicuous, and would dominate the packaging. You know what other product is subject to government-imposed warnings displayed prominently on packaging? Cigarettes and other tobacco products. So, you’re looking at banning sales based on age, and having prominent warnings on packaging. These things are usually reserved for pornography, tobacco products, and/or alcohol. Why are video games being lumped in with this? And while we’re on this, why is nobody calling for similar laws for movies, which also have a voluntary rating system, or books, who don’t have a rating system at all? They’re also forms of entertainment. Apparently, even though all these forms of media can immerse you in a world and subject kids to content not appropriate for them, as soon as you add some buttons on a controller, suddenly the level of interaction becomes too much for people. Really? And politicians wonder why gamers hate them so much. It really does come across as an attack on the lifestyle when you see what you’re being lumped with. As a responsible, informed parent, it also kind of insults my intelligence to see an attempt to lump video games in with things that we KNOW can harm a child.

Ok, we’ve seen the words “violent video game” used a lot, but we haven’t gotten to the definition yet. So let’s go there, shall we? What’s at the heart of all this fuss? CAB 1179 defines a violent video game thus:

(d) (1) “Violent video game” means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:

(A) Comes within all of the following descriptions:

(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.

(ii) It is patently offensive to prevailing standards in the community as to what is suitable for minors.

(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.

(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim. [CAB 1179, 2005]

This is what has the gaming industry in an uproar. Without loss of generality, the argument is that this definition is ridiculously vague. “A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.” Who is this reasonable person? “ It is patently offensive to prevailing standards in the community as to what is suitable for minors.” How are you going to establish what the standard is from one community to the next? And good luck finding consistent standards from community to community, too. “It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.” According to who? Who gets to make that call?

Who’s to say Grand Theft Auto 4 (which you know is a source of inspiration for this law) lacks any of these values? GTA4 actually had a rather heavy-handed story to it. Niko didn’t want to get back into this life of crime, but found himself needing to go there. There were repercussions for his actions. I could go into a rant about the artistic merit of GTA4 and of what it says about us as a society, but let’s just stick to a literal interpretation and say it looks pretty. Hey, if I’m not sure what they mean by “artistic,” how can I trust an appointed “expert” to get it right themselves? See, I could, with the right talking points, make the case that GTA4 is appropriate for minors under these standards. Another person could make the opposite case. But who’s making these decisions? Is it one person’s opinion? Is it a committee? Who’s choosing the committee? Throwing a huge “18” sticker on something and banning it for sale to minors carries a stigma, you can’t just go about this decision all willy-nilly. There’s too much vagueness in Part A, which leaves it open for abuse should a particularly conservative group be in charge of deciding what’s a violent video game and what isn’t. And if Part A doesn’t get you, Part B will. The bill goes on to provide further definitions of some of the terms of Part B, and satisfying any of them could make a game subject to this law. . .

(2) For purposes of this subdivision, the following definitions apply:

(A) “Cruel” means that the player intends to virtually inflict a high degree of pain by torture or serious physical abuse of the victim in addition to killing the victim.

(B) “Depraved” means that the player relishes the virtual killing or shows indifference to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim.

(C) “Heinous” means shockingly atrocious. For the killing depicted in a video game to be heinous, it must involve additional acts of torture or serious physical abuse of the victim as set apart from other killings.

(D) “Serious physical abuse” means a significant or considerable amount of injury or damage to the victim’s body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse, unlike torture, does not require that the victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing.

(E) “Torture” includes mental as well as physical abuse of the victim. In either case, the virtual victim must be conscious of the abuse at the time it is inflicted; and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.

(3) Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim. [CAB 1179, 2005]

On the surface, I’m not sure I can disagree with this particular part. It’s a little bit more specific, and I can see the logic behind these definitions. But then I thought of something. You know what genre doesn’t seem to actually satisfy the stuff on this list? Shooters. That’s right, the genre that involves perhaps the highest bodycount and the most bloodshed in gaming doesn’t really satisfy these definitions that well. Think about your Call Of Duty or Battlefield games. Cruel? No, you’re just trying to kill as many people as possible, preferably with headshots which kill instantly with little suffering. Depraved? Well, maybe, you don’t really care about the victim because it’s kill or be killed, but you’re not torturing or inflicting serious physical abuse on him. Heinous? Nope, you’re going to kill the enemy with whatever you have, and don’t have time for the frills. And if you try to inflict Serious Physical Abuse on the enemy, you’ll find yourself respawning on a regular basis. That means Torture is out too. So, basically, the message almost seems to be that you can kill as much as you want, just don’t go for style points.

Stepping back to look at this as a parent, sure, maybe you’d like for somebody to decide what’s violent and what isn’t, but then you’re letting somebody else make those decisions for you. So, while the point of this bill is seemingly to address the situation where parents are having trouble controlling the games your kids can buy, we’re remedying the situation by. . . relinquishing control of the games your kids can buy. Would you really rather have the government deciding what your kids can play as opposed to you?

By the way, a little irony I observed in my research. CAB 1179 (2005) was originally a bill that permitted designated foster care providers to administer emergency medical assistance and injections for diabetes and anaphylactic shock to a foster child, so long as the provider is trained to administer injections by a licensed health care professional. I’m sure the renaming and renumber of bills is a common administrative thing in California and other jurisdictions, but it’s kind of funny that a bill that first involved taking away some red tape to help increase the well-being of children was rewritten into something that involved adding more red tape to attempt to increase the well-being of children. If you like seeing funny government things, or have a fetish for Strikethrough font, check the amendment here.

As a responsible, involved parent, there are some things I like about some of the provisions in the California Violent Video Game Law. But there is just too much vagueness and inconsistencies in some of the provisions for me to stand behind it. The issues involved with the bills in question unfortunately make it look less like an attempt to protect our kids, than it does an attempt to conduct a witch hunt on a particular industry. If I’m watching a movie, reading a book, or watching a television show, I’m seeing the actions and the story as the director wants me to. If I’m playing a video game, I’m still doing all these things as the director (or the game designers in this case) wants me to. I just get to be a bit of an assistant director since I can shape, to a certain extent, what a character does. But I can’t do everything I’d like to, it would be impossible to code. Plus, if I do certain things wrong, my character dies and I have to restart from a checkpoint. So all I’m getting is a movie with a bit more interaction. I have a hard time believing that this is the dealbreaker that makes gaming different than any of these other forms of entertainment, which don’t carry any sort of legislation with them like what we’re seeing in California or elsewhere.

Given all of this, we at GamerPops still believe that the best course of action is for parents to do their jobs as parents, be responsible, and educate themselves on what your kids want to play, along with the systems in place to help you make better decisions on what’s appropriate for them. It’s not that hard to do, and if you need help, there are so many resources out there for you. Check the ESRB website. Check YouTube for gameplay videos. Heck, ask us if you want. Doing your job and being in the know is a much better alternative to any of the half-baked legislative “solutions” being cooked up by politicians who don’t know any better. Unless you like the idea of living in a nanny state, of course.