California Game Legislation: Shame on Yee Edition

California State Senator Leland Yee wants to protect California's children. Unfortunately, his zealotry is somehow interfering with the fact receptors in his brain.  Senator Yee was one of the primary sponsors of the California Assembly Bill 1179. The bill was approved by Governor Schwarzenegger but found unconstitutional by the California Supreme Court. While the court found a compelling interest in protecting our children, the law was not narrowly tailored.  Had Senator Yee done his homework, he would have seen there is no definitive evidence of a causal link between video games and violence, and an effective system is in place to prevent children from purchasing M rated games. 

Senator Yee portrays the law as being simple. You will be punished if you sell a violent video game to children.  That doesn't sound so bad. Most of us probably even agree.  The question is how we define violence.  If we can't clearly define it, we don't know how to comply with the law. If the threat of prosecution hangs over our head, we will place as much space as we can between what we believe the law means and what we are willing to develop, publish or sell. The United States Supreme Court calls this a chilling effect.

Senator Yee's bill described a violent video game as:

 (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 amanner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim. . . . Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction ofgratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim

You can see the whole text here. I think it is more difficult to find any T or above game which could not be molded into these factors.   Without a bright line test, a court must impanel a jury and determine whether a video game in question is violent.   It seems to me, the best thing to do would be to form an organization which can draw members of the community together to review games and determine whether they are fit for minors.   The organization would be able to place a standardized designation prominently on the packaging so parents and store owners would know which games should be withheld from minors.  Oh yeah, we have one of those.  The ESRB. According to an interview with Gamecyte.com Senator Yee doesn't like the ESRB. 

I think there’s two major problems with the ESRB (the rating board): one is that there is a conflict of interest. The money that is used to sustain their particular activity is paid by the industry — the industry that that board is supposedly trying to regulate. So long as you have that conflict of interest, there’s no way that anyone’s going to believe that these rating scores are going to be objective.
Number two, the ratings are not valid; because the way in which you determine those ratings is that you get a snippet of these particular video games. The industry will provide you with some of the information that causes one to rate in a particular way.

I can understand Senator Yee's concern. The organization should look more like the MPAA, the film ratings organization which Senator Yee has never questioned.  According to their site:

The Motion Picture Association of America (MPAA) serves its members from its offices in Los Angeles and Washington, D.C. On its board of directors are the Chairmen and Presidents of the six major producers and distributors of motion picture and television programs in the United States. These members include:
Paramount Pictures Corporation;
Sony Pictures Entertainment Inc.;
Twentieth Century Fox Film Corporation;
Universal City Studios LLLP;
Walt Disney Studios Motion Pictures; and
Warner Bros. Entertainment Inc.

Wait a second, the industry regulates itself? That makes me go "hmmmm."

The second issue really is a major departure from other media and has been tested. Publishers attest to the accuracy and completeness of their submissions. If the submission are not representative of all content the ratings will be changed and the publisher will be sanctioned. We all saw this happen in the Hot Coffee incident. When the community found disabled code in the game, which was not disclosed as it was never intended to be seen and reasonable steps were taken to remove it from the game, the ESRB revoked the rating and issued warnings within days of the first report.  The publisher immediately provided stickers for existing games, accepted returns and issued a revised version of the game.  The system works.

Senator Yee shares his enthusiasm with Federal Senators Matheson and Terry.  You see, the cause is so important, the three Senators cannot let the facts interfere with the goal. Senator Terry admitted his lack of diligence in an interview on Gamepolitics. Senator Yee took a different tact. In his Gamecyte interview,  he acknowledged the facts, but chooses to ignore them.

Alex Mejia from Corona, CA asks, “Considering even the FBI has statistics that show that the crime rate is dropping, even when games such as Grand Theft Auto have increased in popularity, what proof is there that violence in games causes violent tendencies?”

Just because the statistics somehow indicate that there is a drop in violence does not mean that somehow, we have not found a relationship between these ultraviolent video games, and violent tendency along with children. One has to ask the question: when we were looking at some of the statistics about ten, twenty years ago, you didn’t hear about Columbine shootings; you didn’t hear about college students shooting and mowing down a number of their fellow students; you didn’t hear about – in San Francisco, a couple days ago — a first grader, bringing a gun onto campus. It is these kinds of data that suggest that the ultraviolent video games are being used, looked at, practiced by kids, and then during daylight, or during other times, that they actually practice these kinds of behavior.

The Senator acknowledges crime is going down as game popularity is rising. End of story right? Wrong. He points to Columbine and other shootings. Apparently Senator Yee did not read the court ruling in the Columbine families case against the video game publishers, among others. The court found no evidence of causation linking video games to the tragic shooting. In fact, the court not only failed tofind a compelling interest in protecting children from video games, it found restricting game sales could actually harm children:

To shield children . . . from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it. 

If I were Mr. Yee, I would not use the Columbine example again. His other references are scary, deplorable, horrible and every other way you can think to describe hideously ugly and wrong things. We must deal with these issues. These are the result of a myriad of wrong and unfortunate events. Troubled children, poor parenting, psychological issues, community failure, random acts and more. They are not the result of video games. While the research either proves this point, or fails to find a link, Senator Yee chooses to ignore research which does not comply with his view.

Timothy Anderson, from Minneapolis, MN, references a book called Grand Theft Childhood in which two Harvard graduates conducted an apparently large-scale study that showed that there was no link between violent video games and violent behavior. What is your response to this?

I haven’t read the study and all that; but in all the psychological literature, there has been a consistent reporting of a correlation between playing these games and violent behavior, so that is undisputed. The question has always been whether or not there is a cause and effect – and when there is a preponderance of these correlational data that suggest a relationship between these ultraviolent video games and violence itself, that we err on the side of safety; we err on the side of our children; and we treat them as causal relationships. And that is the reason why, in a number of jurisdictions, they have used that information to argue why in fact we should ban the sale of these ultraviolent video games to our children.

No one can disagree with the need to err on the side of safety. But this is only one of the many studies Senator Yee has not reviewed.  The preponderance of correlational data is manufactured in Senator Yee's mind. The data is not clear and does not provide enough support to impair the First Amendment of the United States Constitution.  Even with a lack of clear data, Senator Yee's argument may have merit, if no other action is being taken. However, effective action is being taken. The FTC's Secret Shopper Survey found retail to refuse sale of M rated games to minors 80% of the time. Gamestop refused the sales 94% of the time.  This is up from an overall industry score of 15% compliance in 2000.  The trend line is impressive and shows effectiveness. 

Senator Yee's bill will create a chilling effect on one of California's largest employers, alter the content available to consumers and tie up the court system with useless cases, but he hasn't taken the time to consider the facts. Where is Steven Colbert when you need him?