Just as the credits are about to roll on Arnold Schwarzenegger's tenure as governor, Pepperdine University constitutional law professor Barry P. McDonald granted him an 11th-hour pardon for having gotten there by being so good at making ultraviolent action films.
McDonald seemingly absolves the Governator for his on-screen murders, assaults and mayhem because he helped push to the U.S. Supreme Court an appeal defending an ambiguous law punishing sales of so-called violent video games to minors. What he doesn't note is that the law, which the governor signed in 2005, would empower state bureaucrats to do what parents and retailers are already doing at no cost to taxpayers. The Supreme Court doesn't need to overturn the lower court rulings in Schwarzenegger vs. Entertainment Merchants Assn. invalidating the law on free-speech grounds, and can safely dispense with the video-game console business for more important matters.
The "teeth" McDonald says the law carries to protect minors were in place and sharpened when private industry fulfilled its pledge to Congress to establish an effective self-regulatory system. The Entertainment Software Ratings Board has been called the most comprehensive rating system in the country by no less than the federal government, fully equipping parents with the information needed to make informed decisions about the age appropriateness and content of games for their children.
Undercover shoppers deployed by the Federal Trade Commission have tested the rigid system that requires kids to show proof of age when buying games rated "Mature," roughly the equivalent of an "R" rating for a movie. About eight out of 10 times these guerilla shoppers can't get past the barcode scanners, an enforcement rate higher than those for DVDs or CDs with similar content. But as there is no evidence that real-life underage shoppers are regularly attempting to circumvent the system, the protective shield is even stronger.
Moreover, parents can program consoles to restrict access based on ratings, notwithstanding the preposterous claims by California's attorneys during the Supreme Court hearing that controls are easily evaded using the Internet, or even Chief Justice John G. Roberts Jr.'s statement that "any 13-year-old can bypass parental controls in about five minutes." Anyone familiar with these systems knows they have vastly improved in sophistication and that the parent who wants to enforce his or her rules can easily do so with little effort or fear of being hacked by a child. In fact, overcoming video-game controls is far more difficult than defeating the V-chip, which is used to shield minors from explicit content on television. Teaching and encouraging parents to better monitor game equipment would be a more effective use of funds than staffing what Justice Antonin Scalia aptly called a "California office of censorship."
The hearing at the Supreme Court was hardly as one-sided as McDonald portrays. California's lawyers dredged up the favorite example supporters of the law cite — "Postal" (and its later incarnations) — as a showcase of video games gone wild that youths need to be shielded from. But holding up this outdated game that is at best a curiosity way out on the industry fringe is roughly the equivalent of evoking 1974's "The Texas Chainsaw Massacre" when discussing modern day R-rated cinema. We can agree that "Postal" is offensive to many people, much like violent rap lyrics or slasher flicks are. But one title doesn't define an industry. And the state's lawyers could not provide any evidence that young children played this game or even wanted to play it, just as they could not answer the question of how California would go about identifying "deviant" violent games such as "Postal" to deem too violent for minors.
Scalia opened the questioning by asking why violence in games should be treated differently than other forms of entertainment, playfully stating "some of the Grimm's Fairy tales are very grim." But it was Justice Sonia Sotomayor who cut to the chase, literally and figuratively, when she noted research equating the effect of violence in Bugs Bunny cartoons to a violent video, raising the point that if games are to be regulated, then shouldn't Bugs be?
Thankfully, the justices seemed to understand that if they open the door and restrict a minor's access to "deviant" games, TV programming such as "True Blood" and "Band of Brothers," or films such as " Schindler's List," "The Godfather" "Saving Private Ryan" "The Hurt Locker" and even "The Passion of the Christ" could be next. Maybe they are all "deviant"
Even McDonald should realize that if we ever get to that stage, the 1st Amendment won't be worth the parchment it's written on. Or, as the sometimes "violent" Bugs Bunny might eloquently put it, "That's all, folks."
Gail Markels is an attorney and former general counsel to the Entertainment Software Assn. who helped design the industry's video-game rating system. George Rose is executive vice president and chief public policy officer for Activision Blizzard Inc. in Santa Monica.