First They Take Vice City, Then They Take Berlin:
Video Game Legislation Offers Hard Lessons For Comic Books

Analysis by Charles Brownstein
From Busted #13

In April 2002 a federal court in Missouri upheld a St. Louis County law that prohibits the sale of sexually explicit and violent video games to minors without parental consent.

The decision, written by Judge Stephen Limbaugh, states that video games are not speech. Limbaugh adds that the county has a “compelling interest to protect the physical and emotional health of children.”

Since Limbaugh’s decision was handed down, the fight to ban access to adult video games has grown. Supporters and opponents of such legislation have been engaged in a battle of briefs that ultimately aim to see the matter taken to the U.S. Supreme Court. Meanwhile, lawmakers in Congress and the State of Georgia have introduced new bills to ban the sale, display, and rental of violent video games to minors. The high court is a long road away, but how the video game industry walks that treacherous path will be instructive to the comics business and the entertainment field at large.

Maximum Force

During the 2000 political campaign season, against the backdrop of the Columbine school shootings, lawmakers in Indianapolis and St. Louis crafted legislation intending to add teeth to the video game industry’s self-imposed rating system.

In July 2000, Indianapolis was the first city in the country to pass an ordinance prohibiting minors from playing violent and sexually explicit video games in arcades. The law required arcade owners to place warning labels on violent and sexually explicit games and keep them at least 10 feet from nonviolent games. The law classified 11 activities as being unacceptably violent or sexually explicit, including: amputation, decapitation, bloodshed, and sexual intercourse. It also required machines be separated by a curtain or wall that would keep them out of sight of minors and barred anyone under age 18 from playing the games unless accompanied by a parent or guardian.

In the same month St. Louis lawmakers proposed a bill modeled on the Indianapolis law and expanded to prohibit the sale or rental of adult content video games to minors unless accompanied by a parent or guardian. The City County Council passed it unanimously.

The video game industry, led by the Interactive Digital Software Association (IDSA) took the cases to court arguing that the bills were unconstitutional and violated the First Amendment’s right to free speech.

The Indianapolis law was found constitutional in the first round of litigation because it did not limit adults’ access to the games or control the content of the games themselves.

Concerning his court’s decision in the Indianapolis case, U.S. District Judge David Hamilton said, “It would be an odd conception of the First Amendment that would allow a state to prevent a boy from purchasing a magazine containing pictures of topless women in provocative poses, but give the same boy a constitutional right to train to become a sniper at the local arcade without his parents’ permission.”

The video game industry appealed and a federal panel of judges overturned Hamilton’s ruling, which pulled the plug on the law. The Supreme Court declined to hear the city’s appeal.

Matters weren’t so cut and dried in St. Louis. The video game industry dispatched lawyers to County Council meetings to raise First Amendment concerns and instigated a lobbying effort by major retailers including Target, Circuit City, and Kmart. Nonetheless, the county signed off on the ordinance two weeks before the November election.

The county anticipated a lawsuit, so they delayed implementing the video game prohibition. The IDSA and co-plaintiffs filed suit in December 2000.

When the Indianapolis law was thrown out, lawyers for St. Louis County turned from vocally supporting the law to quietly pursuing an exit strategy. Those same laywers were vindicated when the District court sided with them on the initial ruling last April.

U.S. District Judge Stephen Limbaugh defended his court’s decision, stating that video games are not speech and that the county has a compelling interest to protect the physical and emotional health of children. After reviewing four video games, Limbaugh wrote that the Court found "no conveyance of ideas, expression, or anything else that could possibly amount to speech. The court finds that video games have more in common with board games and sports than they do with motion pictures."

Because Limbaugh’s court rejected the video game industry’s attempt to throw out the ordinance, the case is now heading to the 8th District US Circuit Court of Appeals.

Fear Effect

Where things go from here is uncertain. Presently St. Louis County and the IDSA are awaiting word from the 8th District Circuit Court on briefs filed in fall 2002.

“Friend of the court” briefs have been filed on both sides. Last September an international group of scholars organized by the Free Expression Policy Project filed a brief urging the Appeals court to strike down the April decision. The brief calls the law and similar proposals “profoundly misguided.” The City of Indianapolis also filed a brief in support of the April decision.

While the St. Louis drama is playing out, lawmakers around the country are broadening the battlelines. In April 2002, legislation that would criminalize the sale and rental to minors of video games depicting graphic violence was introduced in Georgia. Shortly afterwards California Democrat Joe Baca introduced the Video Game Sex and Violence Act of 2002 (H.R. 4645) in Congress. Baca’s bill was co-sponsored by 21 other representatives and has been under committee review since summer.

The provocatively named bill aims to prohibit the sale or rental to minors of video games that feature decapitation, amputation, and killing of humans with lethal weapons or through hand-to-hand combat; rape; car-jackings; drug use; aggravated assault and other violent felonies. Violators would be subject to fines of up to $1,000 for a first offense and up to $5,000 and a maximum of 90 days in jail for multiple offenses.

Congress finds: “The use and observation of video games that contain sexual or violent content can be harmful to minors and reasonable restrictions will significantly decrease the number of minors using these games.” The bill cites a 2001 study by the Federal Trade Commission showing that retailers allowed 78% of minors, ages 13 to 16, to purchase video games rated as “Mature” by the Entertainment Software Rating Board (ESRB).

Like the authors of the St. Louis bill, Congress uses the ESRB’s rating system against the industry, finding, “The ratings and content descriptors of video and computer games issued by the entertainment software industry reflect the notion that certain video and computer games are suitable only for adults due to graphic depictions of sex or violence.”

The bill concludes: “Congress recognizes that the Nation has a compelling interest in preventing minors from purchasing video and computer games that are only suitable for adults due to graphic depictions of sex or violence.

“There is a need to enact narrowly tailored legislation to prevent the sale to and use by minors of video games that contain sexual or violent content that is intended for adults only.”

The video game industry disagrees. Doug Lowenstein, president of the IDSA, agrees that the industry has a responsibility to inform and educate consumers about the content of the games and that retailers are responsible for educating consumers about the rating system, but beyond that, consumers can use that information as they choose. “Parents have the ultimate responsibility for deciding which games are appropriate in their homes,” Lowenstein says, not lawmakers.

Mortal Combat

Right now the comics industry is more aggressively pursuing youth dollars than it has in a decade. And while this business is miniscule in comparison to the $9.3 billion and growing electronic games industry, the challenges that industry faces offer lessons to the comics field.

In fighting current legislation, the electronic games industry is facing a witch-hunt of greater magnitude than Estes Kefauver’s Senate Subcommittee hearings on comics and juvenile delinquency in the 1950’s. The Kefauver hearings took the comics industry to task over the lurid nature of some of the field’s best selling content because studies -- most notably those advanced by Dr. Frederic Wertham’s Seduction of the Innocent -- suggested that such content was a cause of juvenile delinquency. To dodge government imposed regulation, the comics industry voluntarily created the Comics Code Authority, a self-regulating body that sanitized the content of comics. Ultimately, because of the Comics Code and its effectiveness in cleaning up comics content, the government backed down.

Today the government is using the video game industry’s self-rating system to continue its attack on that field. Their arguments linking youth violence to video games are almost as flimsy as Wertham’s arguments that linked comics to juvenile delinquency. In the Free Expression Policy Project’s September brief scholars stated, “Most studies and experiments on video games containing violent content have not found adverse effects. Researchers who do report positive results have generally relied on small statistical differences and used dubious ‘proxies’ for aggression, such as recognizing ‘aggressive words’ on a computer screen. Indeed, research on media violence more generally has also failed to prove that it causes – or is even a ‘risk factor’ for – actual violent behavior.”

Since the 50’s comics has been struggling for recognition of its rightful status as protected speech in the courts. Ironically, in 2002 an Appeals court in Missouri acknowledged comics’ status as First Amendment protected speech in a decision reversing the Twist v. McFarlane verdict (see Busted #12), while a federal court in the same state declared that video games are not speech.

The comics field’s experience with that same legal stigma suggests that it’s a hard road ahead for the electronic games industry. But at least they have the capitol to walk it. As comics publishers use self-imposed rating systems and garner media attention by publishing more provocative content, the industry must ask itself how it would handle a debacle similar to what video games are now facing.

It’s not a stretch to anticipate that scenario. Presently the Justice Department, Congress, and several state and local governments are cracking down on content featuring graphic violence and depictions of sexuality. While the video game industry is fighting government imposed bans on sales to minors, libraries are fighting off the federally mandated use of filtering software lest they lose public funding. Factoring in the Child Online Protection Act, the Child Obscenity Prevention and Protection Act, and the Media Marketing Accountability Act, the government seems intent on sanitizing any media that a child might encounter.

And while the comics industry speaks to a largely adult audience, the Castillo case proved that simply doesn’t matter when faced with politically motivated censorship. Despite the advancement of the graphic novel and the sophistication of the artform, in the eyes of the law, comics are still for kids.

With at least three major comic book movies, plus warehouses of derivative merchandise and electronic games on tap in 2003, comics will continue to advance as part of the entertainment culture. The medium is still experiencing a creatively fertile period which should lead comics publishing to encounter even more of the acclaim, prestige, and notice that it’s been receiving since the turn of this century.

As we approach the 2004 elections, we should consider the implications of our growing place in entertainment culture and the possible legal challenges that our content could provoke. Halting comics’ creative and commercial progress to avoid such legal scrutiny is counterproductive. We must stay on course, but we mustn’t ignore the peril we’d face should comics’ racier content become embroiled in the current censorious climate.

The most responsible course of action is to become better educated as a field about our rights in this shifting political climate. We must understand how the laws are changing and open a dialogue about how comics -- and the larger entertainment industry to which they belong -- can be affected.

Comics doesn’t have the money to wage the kind of battle that video games are fighting, so it had better have the smarts. By becoming intellectually prepared to face the legal adversity our electronic entertainment brethren are fighting, we will better safeguard our field against it. We will also be able to fight back, should that day eventually come.