The history of the ESRB is well known. It was created in 1994 when Mortal Kombat II was released into arcades and the wave of outrage washed across the nation. It was designed as a voluntary system to help consumers make the correct choice when shopping for video games, and, for the most part, people were happy with the system. However, there have been several lawsuits and attacks that have targeted consumers and retailers on grounds that not all retailers are verifying the age of their consumers and parents are not monitoring what video games their children are purchasing. Before I point to the entire "voluntary system" part again and smack my forehead, I'd like to present examples.
Florida lawyer Jack Thompson has claimed on several occasions that retailers such as K-Mart or Wal-Mart are more than willing to sell "murder simulators" to children under the age of seventeen. He has been known to send his underage son into stores to see if they will sell the game and threaten suit if they do. He often files public nuisance suits against various publishers and retailers to try and persuade retailers not to carry the game.(1)
My biggest problem with Thompson and any lawyer who tries to do things like this is the fact that they're trying to distort the goals of the ESRB. When Thompson refers to M-rated games as murder simulators and files public nuisance suits against them, he is destroying the consumer's chance to make an informed decision with the ESRB system. He is creating controversy so that the consumers will look away from the actual rating and buy into the propaganda. They could also assume that any game with a M rating is a murder simulator without even trying the game out.
It is no secret that several lawmakers and lawyers believe that they go to any measures to protect Americans, but how far will they go? The state of California went far enough to propose a bill that would simply outlaw the sale of M and AO-rated games to minors. The Entertainment Software Association contested the potential law with a lawsuit that ESA president at the time Douglas Lowenstein was "confident" would prevail. Not only was the argument of free speech present, but there were several shoddy terms in the bill that could be easily twisted to suit the needs of manipulators in court. The bill doesn't mention a specific age for "adulthood," the bill forbids games that allow the killing, sexually assaulting, dismembering, or maiming the image of a human being or a humanoid character, and it basically continues throwing all sorts of wild terms about that aren't entirely solid. (3)
This bill was possibly the worst attempt at regulating the sales of video games while dancing around the ESRB so that argument couldn't be used. The terms were almost to the point where one could consider them "laughable," and I could almost swear that it was ready to argue over what a "humanoid" could be considered. It was simply a poor attempt at policing the gaming industry, and I'm glad that it was thrown out before it got a single breath of life.
Now let us step into an alternate dimension where these types of lawyers are actually against a certain type of video game regulation. The FEPA(Family Entertainment Protection Act) was proposed in 2005 by US Senators Joe Lieberman and Hillary Clinton. The bill would mandate that retailers not sell games that are rated for adults to children. The first thing I'd like to remind readers is that the bill was trying to lean on the ESRB for support. We've already established that the ESRB is in no way mandatory, so how could this be done? The bill also wanted to perform a yearly review of the ESRB to ensure that it is accurately rating games. The bill, which would be law if passed, wanted to regulate the ESRB – something that was never meant to be.
FEPA supporter and US senator Joe Lieberman
FEPA also wanted to check all games that have been rated by the ESRB for hidden content to see if this content could alter the game's initial rating in the long run. This was added to the FEPA bill mainly due to the "Hot Coffee" scandal in GTA: San Andreas. There is more to come on that subject.(2)
Was there anything constitutional about FEPA at all? According to Jack Thompson, not a drop of it was. He argued that the bill was basically trying to mandate the ESRB which was already established as unconstitutional. "Clinton's FEPA, as proposed, is completely unconstitutional. U.S. law is clear: A private-sector standard for rating entertainment products cannot be enforced by the government. This has been settled constitutional law for decades.
"Yet this is precisely what Clinton's bill would do. It seeks to convert the industry's Entertainment Software Rating Board (ESRB) game ratings into the law of the land. Such an approach has been unconstitutional since local communities in the early 1900s created private-sector 'obscenity councils' in an attempt to dictate to state juries which books were 'obscene,'" Thompson stated.(4)
Doug Lowenstein called FEPA "unnecessary" and "unconstitutional." He was quoted stating, "We believe the combination of trustworthy ESRB ratings, parental education, voluntary retail enforcement of ESRB ratings, and, most recently, the major announcement that all next generation video game consoles will include parental control systems, makes Senator Clinton's bill unnecessary. There is now a continuum of tools from the store to the home enabling parents to take charge of the video games their kids play. It is now up to them to do their jobs as they see fit, not up to government to do it for them."(2)
Former ESA president Douglas Lowenstein
A huge spark of controversy set the gaming world on fire when hackers found a hidden mini-game in the PC version of Grand Theft Auto: San Andreas titled "Hot Coffee." The mini-game, albeit incomplete, was accessed by modifying GTA: SA. Senators Hillary Clinton and Joe Lieberman called for either an immediate banning of the game or for the ESRB to re-evaluate the game for proper rating. Rockstar North responded by claiming that the modders were responsible for the "Hot Coffee" mini-game and argued that it was not a part of the original game. They were exposed as liars when modders found the same mini-game in the console version of GTA: SA, and the ESRB was given no choice but to comply with the demand for re-evaluation. The ESRB re-rated San Andreas as AO(Adults only), instantly making the game the best selling video game to ever hold the AO rating.(5)
Such a mini-game obviously isn't kid friendly. I'm not going to dare argue that a sex scene is good for a child because it isn't. But I will argue that content that more or less removed from the final product and can possibly be accessed via modification isn't fair ground for re-evaluation. This mini-game was not part of the presentation to the ESRB; why would it be evaluated? The average seventeen-year-old who - according to the ESRB – could handle San Andreas' content in a mature manner could never know about the removed content if it weren't for third party hackers who modified the game. It is simply impossible to know about this without blatantly doing something that consumers were never intended to do. It is simply wrong to misguide the consumers and retailers with information on something that was never intended to be accessed. That isn't what the ESRB was designed to do.
The thing that upsets me the most is when someone openly admits that they've tried a game, considered what they played/witnessed, and are uncertain why the game was given the rating it bears. They choose to believe that the ESRB has rated the game perfectly and that no argument should be present. As I've mention a good thousand times now, the ESRB is simply a suggestion. One can disagree with a suggestion and make his or her own opinion. Do not be bullied into forfeiting your freedom of choice.
Is the ESRB truly used as a guide to assist purchasing, or it is used as a political weapon by both lawyers and politicians? I believe that, while the system is a good idea, it is ineffective. As I've shown, it can easily be swayed to miss the point by politicians and can also be used to enslave the freedoms of retailers by power-hungry lawyers. So many people forget that it is nothing more than a tool – a suggestion – that should be used to help rather than intimidate. Many have tried to make it law, and many have failed. I say we either leave it as is or kill it off before it is continuously used for the wrong reasons. Until next time, think for yourselves
1. 20/20 NBC March, 2000. "Debate Whether Violent Video Games Desensitize Children."
2. Arstechnica.com November, 2005. "Clinton, Lieberman push for Federal game ratings oversight."
http://arstechnica.com/news.ars/post/20051130-5651.html 3. Arstechnica.com October, 2005. "Entertainment Software Association to sue California." http://arstechnica.com/news.ars/post/20051011-5418.html
4. Arstechnica.com December, 2005. "Thompson calls FEPA unconstitutional." http://arstechnica.com/news.ars/post/20051212-5740.html
5. Wikipedia.com N/A. "Hot Coffee minigame controversy." http://en.wikipedia.org/wiki/Hot_Coffee_minigame_controversy
