The state legislature of New York passed two bills in recent weeks seeking to further restrict the sale of video games containing "depraved violence" and "indecent images" to minors. Assembly bill A 8696, introduced by Joseph R. Lentol (D- North Brooklyn), received overwhelming, swift bi-partisan support, passing by a margin of 130-10. A 8696 would render the sale of mature-rated games to those under age 17 a Class E felony, resulting in up to four years in prison. The bill would also require all new video game consoles sold in New York to contain parental control settings to restrict games with "certain content," effective September 1, 2009. The Entertainment Merchants Association (EMA) has come out strongly against the bill, calling it "ill-conceived" and "unconstitutional."
In the following letter to Assemblyman Lentol, Joan E. Bertin, Executive Director of the National Coalition Against Censorship, outlines the problematic nature of A 8696 and similar State Senate bill S 5888, which calls for the establishment of a state-run review council on the current rating system. Also included below are the bills themselves along with the EMA's statement against them.
I write to express strong reservations about the constitutionality of proposals to regulate video games with violent content.
This is not the first time attempts have been made in New York to regulate depictions of violence. Indeed, nearly eight years ago, I testified against a similar legislative proposal in hearings held by the NY Task Force on Youth Violence and the Entertainment Industry. My testimony, which is enclosed, applies with even greater force today.
Efforts to criminalize the sale of violent video games to minors have ultimately been struck by every federal court reviewing them to date – nine at last count. As these courts recognize, expressive works containing depictions or descriptions of violence are fully protected under the First Amendment. The scientific rationales offered to justify regulating violent content have been subject to judicial scrutiny and found insufficient to meet the considerable burden necessary to override First Amendment protection. There is simply no scientific data to support claims of a causal relationship between exposure to violent imagery and unlawful conduct, and there is similarly no scientific consensus about the effects, if any, of such imagery on complex human behaviors – much less on the potential for differential effects depending on whether the depictions are works of fiction or accurate portrayals of historical or contemporary events.
The bills make no attempt to draw distinctions among types of violent content. A8696 labels material "depraved" if it consists of "photographic or photo-realistic or other similar visual representation or image of the rape, dismemberment, physical torture, mutilation, or evisceration of the human body." Vague and overbroad as its sweep may be, it is difficult to imagine that any bill could draw meaningful distinctions between "good" and "bad" violence. For example, although many critics hailed it as an artistic achievement, some television stations recently declined to air the film Saving Private Ryan last year because of concerns about its violent content. Fueling concerns about violent content will, instead, chill artistic expression and introduce another level of subjectivity and randomness into the decisions about what entertainment is appropriate for whom – a decision best left to parents.
The violence we see on the daily news and in film and video is not a novel feature of contemporary culture. Violence has always been a part of life, and it has therefore been a constant theme in works of the imagination. A prohibition on violent imagery would therefore sweep up vast amounts of art, theater and literature – all pre-existing the film and video era. For example, not long ago the Getty Museum in Los Angeles mounted an exhibit entitled Images of Violence in the Medieval World containing depictions of torture, death, and mutilation occurring as a result of war, religious persecution, and the everyday vicissitudes of life. See http://www.getty.edu/art/exhibitions/violence/ . Shakespearean drama is full of simulated bloodshed, maiming, and other graphic violence, but entertainment has not always been confined to simulated violence, as evidenced by the enduring popular appeal of public executions – from ancient Rome to parts of western Europe into the middle of the 19 th century.
There is, moreover, no logical rationale for enacting such problematic legislation, as A8696 in particular appears to add nothing to existing law. By its terms, the bill appears merely to add a category of material that is not, by itself, unlawful, and only becomes unlawful if accompanied by other already-illegal content. Material that is "harmful to minors" is already regulated; material that is violent but is not "harmful to minors" is not covered. The crime has been, and remains under these proposals, firmly limited to that which is "harmful to minors," as that term has been traditionally defined without regard to violent material. In essence, the bill appears to be superfluous – a nod to those who would restrict speech that is unpopular but protected by the First Amendment.
Notwithstanding its apparently plain language, if the bill is construed to add additional penalties for violent content that does not meet the accepted definition of "harmful to minors," it would almost surely be deemed unconstitutional, for reasons noted above.
S5888 suffers from other equally troubling constitutional defects. First, the rating system adopted by the Entertainment Software Rating Board, like that used by the Motion Picture Association of America, is a purely voluntary self-administered system intended to provide information to consumers. Any government effort to require the publishers of expressive content to "rate" their products would plainly create serious constitutional questions over compelled speech and because it would inevitably demand the government to define the required ratings. Nor may the government delegate any authority it legitimately exercises to private entities. See , e.g. , Entertainment Software Ass'n v. Hatch , 443 F. Supp 2d 1065 (D. Minn, 2006).
We strongly urge you to abandon this misguided effort to regulate protected forms of expression. Concerns about the effects of imagery – real or fictional – can be addressed by media education programs and other positive efforts to engage in dialogue with young people about their responses to cultural influences and to the real world as they experience it, rather than by constitutionally-suspect efforts to restrict access to a wide variety of expressive material.
» EMA Statement