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Video-game ratings: a tool or a weapon?
Inside the First Amendment

By Paul K. McMasters
First Amendment Center ombudsman

Never does the ponderous machinery of government and commerce rev up so quickly as when the republic is threatened by, uh, sex.

The sex this time is in a video game, the San Andreas version of Grand Theft Auto, the world’s most popular game series and long criticized for its violent content. Earlier this month, discovery of a minute or so of animated sex secretly tucked away under layer upon layer of coded violence created shudders of alarm along Pennsylvania Avenue, Wall Street and Main Street, America.

Congress, preoccupied by a Supreme Court nomination, debate over energy and trade bills, re-authorization of the Patriot Act and in a rush to complete other pressing business before the August recess, nevertheless found time to fret about this development.

Sen. Hillary Rodham Clinton, D-N.Y., called a press conference to urge the Federal Trade Commission to investigate the video game publishers, stores that sell the games and the industry organization that rates them.

Rep. Fred Upton, R-Mich., prodded members of the House into a 355-21 vote in favor of a resolution calling on the FTC to investigate.

The Entertainment Software Ratings Board, the video-game industry group, changed the game’s rating from “M” for players 17 and over to “AO” for adults-only. The ESRA also launched a re-examination of its whole ratings regime.

The game’s publisher, Rockstar Games, halted production of the game and promised a new version without the offending material as soon as possible.

Major retailers, including Wal-Mart, Target, Circuit City and Best Buy, pulled the games from their shelves.

Take-Two, the parent company of Rockstar, dropped $1 on Nasdaq after Clinton’s press conference and lowered its financial forecast for the coming year.

In New York, Florence Cohen, 85, who bought the game for her 14-year-old grandson last fall, filed a lawsuit against Rockstar and Take-Two seeking unspecified damages on behalf of herself and consumers nationwide, the Associated Press reported.

And on July 27, the FTC’s Division of Advertising Practices notified Take-Two that it was inquiring into advertising claims for the game.

Descriptions of the sexual indecency in the video game that launched this cascade of events ranged from “The scene depicts mostly clothed digital people performing sex movements” in The New York Times to “an interactive porn movie” in which animated characters “engage in a range of nude sex acts” in the Los Angeles Times.

For those who managed to crack the code and view the “mini-game” for themselves, the scene certainly was not something we would want a child to see — or a government to regulate.

Yet, regulation is just what many have on their minds. Clinton said she would propose a law making the sale of games rated M or AO to children a federal crime with a fine of $5,000.

Ironically, the usual instruments for crafting laws that might penetrate the First Amendment protections for free speech are the “voluntary” ratings schemes that entertainment industries have devised to insulate themselves from regulation. But, as the Los Angeles Times reported, Clinton’s proposal “would give the force of government regulation to what are currently voluntary ratings.”

Content ratings for movies, television programming, music, Internet sites and video games, among other media, provide useful information for parents wanting to protect their children from material they consider harmful.

However, ratings can be turned quickly from tool to weapon because they invite legal codification, which can translate into regulation, which translates into government power to restrict our choices when it comes to free expression.

That presents us with a choice between the power of government to control and the freedom of individuals to choose.

Although those of us who seek a less coarse, less crude culture for ourselves and our children are reluctant to characterize it this way, when we contemplate regulation of speech we consider out of bounds, our real target becomes too much freedom or the misuse of freedom.

Thus, in making that choice between our freedom and government’s authority, we must take care. Certainly, freedom can be misused, but that is a choice each of us makes. If the individual exercise of that freedom is unwise, at least it is self-imposed and usually self-correcting.

On the other hand, when political power is misused to restrict or suppress speech, all of us are affected in one way or the other. That power is imposed, not chosen, and generally it is anything but self-correcting.

This mid-summer madness reminds us once again that even fundamental freedoms can be hidden in the electronic code of video games and that we should restrain that impulse to surrender to others the right to restrict our rights.


Grandmother sues over 'Grand Theft Auto'

Says she bought it for grandson, 14, without knowing it contained hidden sex scenes; game maker says FTC is investigating its advertising. 07.28.05

Video-game groups challenge California law
Industry officials call ban on selling, renting violent videos to minors a form of ‘content-based censorship’ of protected expression. 10.18.05

Court strikes down Ill. video-game law
State came 'nowhere near' showing that law restricting sales of violent, sexually explicit games to minors was constitutional, federal judge rules. 12.05.05

Fla. judge to decide if 'Bully' game can be sold to minors
Court orders review of unreleased title after lawyer files complaint accusing video game of being 'Columbine simulator,' inappropriate for children. 10.13.06

7th Circuit: Ill. video-game law violates free speech
Meanwhile, game industry asks federal judge for help in collecting legal fees that government has been ordered to pay. 11.28.06

'Beer Pong' game's teen-friendly rating criticized
Connecticut attorney general says Entertainment Software Rating Board erred when it gave ‘T’ rating to video game premised on college drinking game. 07.09.08

Racy downloads become more daring – and portable
By Paul K. McMasters Demands to regulate 'porn in the pocket' are inevitable, and must be resisted. 12.04.05

Lack of scientific evidence short-circuits video-game bans
By Douglas Lee Decision striking down Illinois law leaves no doubt about critical weakness in strategy to restrict minors' access to violent games. 12.13.05

Rating shock and awe at the movies
By Paul K. McMasters Objections to PG rating for Christian-themed film prompt call for universal rating system — but that could cause problems as entertainment changes. 07.16.06

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