We've seen society's reaction when a game seemingly steps over the line (see: Hot Coffee). We've also watched legislation to restrict video games come and go.
Adam Thierer, First Amendment champion and director at Washington D.C. think-tank The Progress & Freedom Foundation, believes the industry should show caution when introducing games rated AO by the Entertainment Software Ratings Board (ESRB) into the mainstream.
But what would happen if Sony, Microsoft or Nintendo suddenly allowed Adults Only-rated games to be released? Human sacrifice, dogs and cats living together, mass hysteria?
"Whether any of us care to admit it," said Thierer in a recent blog post, "the fact that AO-rated games are currently kept off the major consoles and off the shelves at some major retailers (ex: Wal-Mart and Target) is probably the most important thing holding back a full-on legislative assault on video games."
The aggressive legislation proposals in the wake of Hot Coffee weren't a "full-on legislative assault on video games" in Thierer's eyes.
And is he suggesting that game makers disregard the potential of adult content out of fear?
"I am in no way advocating that the industry hold off in terms of allowing complete creative expression," Thierer told Multiplayer in an e-mail exchange.
Thierer believes games have so far been saved from the courts because society still views game consoles as "expensive toys for kids." Adult titles on the PC tend to avoid the ESRB entirely because no retailer will stock AO-rated games, thus putting such games out of the reach of most children. You certainly wouldn't expect to find "Virtual Hottie 2" (yes, that's a real game) at Best Buy.
While Xbox 360, PlayStation 3 and Wii all have varying degrees of built-in parental controls, there are no AO-rated games on them. "Just as consoles can screen by other rating designations, so too could they screen by an AO designation," said Thierer. "So, why not let AO games on the consoles? After all, we [allow] NC-17 or pay-per-view movies on cable, right? Parents can just block them. Let that be the regime for games as well."
Despite his optimism, he cautions against opening that floodgate prematurely. "The video game industry has been very lucky so far and won all its major court cases against video game critics. But will there be a straw that breaks the camel’s back and opens the floodgates to regulation? I hope not, but a sudden flood of AO games on major consoles could change all that."
Florida lawyer Jack Thompson receives loads of press for his legal actions against Take-Two Interactive, but he's just one of many advocating restrictions on the medium. Thierer said bigger threats to creative freedom come from legislators following folks like Kevin Saunders, a professor at Michigan State University College of Law.
In 2003, Saunders published an essay entitled "Regulating Youth Access to Violent Video Games: Three Responses to First Amendment Concerns," where he tried to connect games to school violence.
"How then did a fourteen-year-old manage five head shots and three in the upper torso? It appears to have been his video game training that made him an effective killer. … One does not have to accept the notion that media violence causes actual violence to see a relationship here. Whatever may have caused Carneal to be motivated to kill, video games appear to have given him the skills and reactions to accomplish his goal."
Saunders was also on the US Senate subcommittee hearing exploring video games and the First Amendment held in March 2006.
I asked Thierer if the complicated issues and potential creative consequences facing video games in the future were analogous to what the comic books industry once faced. "The legal situation has improved considerably since the 1950s, and the industry today cannot be so easily bullied into adopting a repressive speech code." said Thierer. "We should never forget how lucky we are to live in the world we now find ourselves in today."
What's the next step for AO games reaching console owners? Thierer believes Sony will be the first platform holder to make a move towards allowing AO-rated titles, if only on a case-by-case basis. "If anyone is going to make the move first, it’s Sony. It’s already regarded as the most 'adult-oriented' console," he told us.
I suggested Sony could partner with Rockstar Games. "That’s exactly how something might unfold on this front in the future," he said. The idea is that the company, like a movie studio backing a critically acclaimed NC-17 title, would do it both as a creative statement and a commercial attraction.
Do you think Sony is willing to take on that burden?