Capping off a year during which several states have passed laws to criminalize the sale of explicit video games to minors, Senators Hillary Clinton (D-NY) and Joseph Lieberman (D-CT) announced Tuesday that they will introduce a federal ban on the sale of such games to children when Congress resumes in mid-December.
“I have developed legislation that will empower parents by making sure their kids can’t walk into a store and buy a video game that has graphic, violent and pornographic content,” Senator Clinton said in a statement.
The law would ban the sale or rental of any game rated Mature or Adults Only, as determined by the private Entertainment Software Ratings Board (ESRB), to anyone under 17. Violators would be fined, though the degree of the penalty was not specified in the statement released by the senators.
The legislation calls for an annual review of the ESRB ratings and an annual audit of game retailers to ensure that adult games aren’t being sold to minors.
The proposed law would also mandate a Federal Trade Commission sweep of the game industry to ferret out any hidden content that might undermine those ratings, such as the infamous “Hot Coffee” sex scenes buried within the code of “Grand Theft Auto: San Andreas” that caused the games’ rating to be changed months after release and ultimately forced “GTA” publisher Take Two Interactive to yank the game from stores (see ” ‘Grand Theft Auto: San Andreas’ Gets ‘Adults Only’ Rating” ). According to the senators’ statement, the FTC sweep would “determine whether what happened with ‘GTA: San Andreas’ is a pervasive problem.”
Eliot Mizrachi, a spokesperson for the ESRB, referred a request for comment to the Entertainment Software Association, the trade group that lobbies on behalf of the game industry. In a statement, ESA president Douglas Lowenstein said “We share Senator Clinton’s commitment to effective enforcement of the [ESRB ratings],” but added, “We strongly oppose the bill.”
Saying that recent announcements that all next-generation consoles will have parental controls are an indication that the game industry is already effectively policing itself, Lowenstein also questioned whether the federal bill would even be legal. “While we are gratified that [Senator Clinton] holds the ESRB in such high regard that her bill would give these ratings the force of law, the courts have made clear that giving a private party governmental powers is unconstitutional,” he said. “Beyond that, the bill clearly infringes the constitutionally protected creative rights of the video game industry.”
Clinton and Lieberman have vocal supporters of legislation in Illinois, Michigan and California that were all signed into law since the beginning of the summer on their side, but these laws have all been vigorously challenged in court by the ESA and other industry trade groups (see “Political Battles Against Video Games Heating Up Across The Nation” ).
The Michigan law, scheduled to take effect Thursday, has already hit a snag similar to the one that ultimately killed comparable laws in St. Louis and the state of Washington in recent years. Earlier this month, federal judge George Caram Steeh granted a preliminary injunction that would block the law from taking effect on the grounds that it was likely restrictive of constitutional protections for free speech and would prove too vague for retailers to enforce (see “Judge Rules Michigan Can’t Enforce Explicit Video Game Restrictions” ).