Ban Hammer: How ESRB Regulate Video Games, Protected Speech and More!

Plato and Pinball

Censorship, restrictions or bans hardly cause furore or even raise eyebrows anymore, always looming like some egg-headed communist in McCarthyist America. One can find evidence as early as 380 BC, specifically in Plato’s writing: a passage beginning ‘…if they imitate they should from childhood up imitate what is appropriate to them…’ shows preoccupation with children’s misguided behavioural-emulation and advocates censorship of dramatic works. Indeed times have changed, as authorities now bring their focus on media like movies and games rather than literature, essentially worried about the same “behaviour-emulation” old Plato was on about.

When did new media begin attracting the wrong kind of attention? As far as games are concerned, the earliest example of censorship comes with pinball machines in the early 40’s through to the 70’s; though they don’t exactly resemble our modern idea of “gaming” they were first banned due to gambling laws and for being too addictive. The ban was eventually lifted when Roger Sharpe, in a renowned case, demonstrated the skill involved rather than chance. Finally avid players could have a bash at Bally’s Bonanza without fear of being busted.

Mortal Kombat, Doom and Postal

Pinball machines are hardly where it stops, moving us onto our realm of interest; the 90’s marked a boom in computer and console sales, and titles were scrutinised under the magnifying lens for negatively influencing our youth. After Atari paved the way for pixel-filth and gratuity with “Custer’s Revenge,” controversies sparked over “Mortal Kombat,” “Doom” and “Duke Nuke’em,” this time for senseless blood and gore. Fists vigorously beat on desks, and many demanded these titles to be banned from circulation – ultimately proving fruitless and even aiding to the popularity these games have enjoyed.

The release of “Postal” roughly coincided with “Grand Theft Auto,” two titles which more than stirred-up muddy waters, catalysts of state-laws prohibiting sales, or cases regarding first amendment rights. “Postal” was banned in a number of countries and the U.S. had the game blacklisted upon its release.

All of which brings us to more current days, where bodies like the ESRB or PEGI regulate video games. Let’s not run before walking though: keep reading to find out how we got here.

Protected Speech: First Amendment and Games

Numerous cases, not to mention debates, have taken place as early as 1983 attempting to determine whether, similarly to music and films, video games are protected under the first amendment to the U.S constitution. What does this mean? Most will know though for the ones that don’t, it makes the difference between the ban-hammer crushing on a game or it being freely allowed for distribution.

The 1983 case mentioned is “Malden Amusement Co. Vs The City of Malden” in Massachusetts. Without boring you all with legal verbiage, the case boils down to whether there is any (or enough) informational and expressive content present in games to make them protected speech. “Malden Amusement” had originally applied in 1982 with the intent to run 50 video-machines in Malden Square, a request which was ultimately denied as the case was lost; one premise was that extra resources would be needed (i.e. police) as “unruly” behaviour would run rampant.

A similar case which also took place during 1983 saw Arnold Kaye, a 41 years old gaming enthusiast, taking Westport PZC (Planning & Zoning Commission) to court for refusing to allow a 50-game arcade on Post Road. An article by J.Cavanaugh (NY Times) documents the case, including accusations of such a venture creating drug problems and inducing youngsters to waste money senselessly. For those interested, you can read the memorandum decision at this address.

More Recent Finger Wagging

Fast-forwarding to 2002, or some time after the establishment of ESRB, we have the “Interactive Digital Software Association v. St. Louis County_”_ which is talked about to this day – southern conservative democrats and all that. The case examined many of the popular titles mentioned (Mortal Kombat, Doom etc..) attempting to determine whether game-content constituted as “speech” as it is understood in the First Amendment. The verdict was that it was not and violent, or inappropriate titles were then considered restricted in the state.

Although the advent of the ESRB, as a body to regulate video games, granted games more juridical protection, cases are still occurring. The most notable case occurring recently is the “Schwarzenegger v. EMA” where Arnie signed a bill into law which prevents minors from buying violent games; don’t play violent games in California kids, or Arnie may just break down the door and blow your head off with a bazooka. The case is still going on, though it now looks unlikely that any law considered unconstitutional, regardless of state, may be passed.

Will the tug of war ever end? It hasn’t with movies which have been around far longer than games, so it looks like judges and lawyers need not be worried about their daily bread.

The Birth of ESRB

The Entertainment Software Rating Board was formed after a long succession of separate bodies, which set to regulate video games according to their own criteria and rating systems; these include the Video Game Rating Council (Sega), the 3DO rating system (3DO) and the Recreational Software Advisory council. All these were causal to congressional hearings on violence in games.

Eventually it was decided that one single body would be responsible for regulation, and ESA (Entertainment Software Association) formed the ESRB in 1994 which remains responsible for regulating the new medium.

The ESRB rates games based on most significant footage, displaying the most offensive or violent content the game contains. Developers submit an application and send a video of the game, which is then reviewed by ESRB and rated according to content. Ratings range from E (Everyone) through to AO (Adults only).

Whilst the creation of ESRB has allowed for more freedom on the part of developers and protection on legal fronts, it does not entirely protect restriction of game sales dictated by state or county laws – as we have seen in the latest cases above. Further criticisms by authorities include a conflict of interest since ESRB is ran by ESA.

It is also worth noting the different stance the ESRB takes on sexual content compared to regulating-bodies in Europe; many AO ratings were issued on games which even featured mild sexual content while violence is often tolerated.

Where Does That Leave Us?

Or where does it all leave gaming regulation in the US, more specifically. With ESA creating the ESRB, there is no doubt that, at least in terms of freedom of content, game companies and developers do not have to face the fears of censorship like in past outcries. As briefly mentioned though, it hardly protects single states from various attempts at brandishing the ban-hammer and passing laws which stop selling those games.

It all boils down to whether such games really have an influence on children, something which is still unproven despite on-going research. Content is also significant in determining whether they are protected by the constitution.

Is regulation inherently bad? Of course not, nor should it leave a “sour taste in the mouth” like it does for a writer on Gamasutra; a body like the ESRB, or PEGI, allows for choice and ultimate responsibility by parent/guardian. Regulation is far from censorship.

Let’s hope the medium keeps on growing and some stable middle-ground is found.