There is a bit of new ground here, as the FTC’s actions in the past (as well as those of the enforcement agencies of the several states) have been concerned with sexually explicit material. The move to become active in violent material is an expansion of scope for the Commission. This is probably due to the evolving nature of the interactive games on the market, where blasting away and wholesale carnage is the rule of the day.

The FTC’s reports to Congress on its investigations and complaints are closely watched by the video game industry, which wants to avoid restrictive or limiting legislation at all costs. It was with this concern in mind that the industry’s trade group, following the movie industry’s lead, established the Entertainment Software Rating Board (ESRB), which has developed a rating system for video and computer games. The rating system has two parts, a rating symbol and content descriptors. The symbols appear on the face of the game box and the descriptors are on the back.

So far the FTC seems to be relatively content with the industry’s self-regulation. Although in its last testimony it noted that much needs to be done, it conceded that the industry has made progress in complying with and improving the self-regulatory system. This is probably enough to keep the federal government wolves at bay for the present.

The FTC noted that they are hopeful that, as developers continue to produce games with increasingly explicit content, the industry will also enhance the self-regulatory guidelines governing marketing and that retailers will implement and enforce policies to restrict children’s access to such games. Legally, there is another reason for the FTC approach: The law in this area is not necessarily conducive to aggressive legal action. Because the expressive content in video games is considered protected free speech under the First Amendment, there is a very narrow range of permissible government involvement with the advertising and marketing of video games.

Two California law professors, Vikram David Amar and Alan Brownstein, examined some of these limitations in an article analyzing proposed legislation in California that would limit the distribution of violent video games to minors. They noted that not only is there is no constitutional category that marks violent imagery or language as unprotected, but the situation is just the opposite: War movies and novels are in fact covered by the First Amendment. They also note that most of the cases dealing with explicit imagery found not protected by the First Amendment involve explicitly graphic sexual material, but these cases do not necessarily translate into the same results for explicitly graphic violent material. To the professors it is quite clear that any legislation that would attempt to regulate the distribution of graphically violent material to adults would fail. However, since children’s constitutional rights are not protected to the same level, there may be some wiggle room for legislators to craft protective measures to limit the advertising and distribution to them. This wiggle room and the political attractiveness of “sin” restrictive legislation keep the various state legislatures trying.

To date there have not been many cases decided by our courts that give much enlightenment to video producers, distributors and those who advise them concerning the state actions. Of the cases that have been reported so far, they seem to have been decided pretty much in favor of the gaming industry. The most recent, a decision from the U.S. Court of Appeals for the 7th Circuit, affirmed a ruling striking down Illinois’ Sexually Explicit Video Games Law. This law prohibited the sale of sexually explicit video games to anyone under the age of 18, and made stores put 4-square-inch labels with the numerals “18” on the prohibited games and post at least three 18” x 24” signs in their stores which publicized the new law and explained the voluntary rating system of the ESRB. The law also contained criminal sanctions applicable to retailers who did not comply. Too broad in its limitations, said the trial court. We agree, said the appellate court. Back to the drawing board, said the governor.

My own view is that when producers and distributors are on board with the ESRB rating system, they are going to be in a pretty safe harbor. If electronic games are reviewed and rated, an MA rating may cost some sales, but it will go a long way in shielding the producer and distributor from potential liability or government involvement. So get it rated, and then let your customers blow ’em up.

Maybe it should work this way:

In the game, much violence is simulated
And a great many bodies get mutilated
But to mom’s great glee
The game’s rating was “T”
So both she and her son are elated.