Video Games and Censorship

Definition: Any electronic games played on a dedicated console, personal computer, handheld device, smartphone, or coin-operated system.

Significance: As the technology and realism of the burgeoning multibillion-dollar video game industry developed, concerns over the content of games and children’s access to them increased.

With the introduction of Atari’s game Pong in 1976, video games showed dramatic increase in popularity as a major recreational medium. Over the following decades, what had been first considered a fad grew into a multibillion-dollar-a-year games industry in the United States alone. Meanwhile, the technology of the games had improved, transforming the games from the black-and-white block paddles of Pong to fully digitized interactive and immersive stories.

As technology and the realism of video games increased, concerns grew over violence, profanity, and sexual content found in this previously unrated and largely unrestricted medium. Many groups expressed concerns that violence in the entertainment media was responsible for increased violence in society. They have argued that video games in particular would have a stronger effect on children’s aggression because of their interactive nature. On the other hand, publishers have contended that their games should have as much protection under the First Amendment as any other form of media. They also assert that video games are not being played only by children and pointed to 2015 sales, demographic, and usage data from the Entertainment Software Association (ESA) that showed that only 26 percent of video game players were under the age of eighteen. In fact, the ESA reported in 2015 that the average video game player was thirty-five years old, and by 2017 that number had not changed. In 2020, the ESA reported that over 214.4 million people in the US played video games, while the average video game player was between thirty-five and forty-four years old.

Congressional Investigations

Between December 1993 and July 1994, three joint US congressional hearings were held on the violent content in video games. They were presided over by Democratic senator Herb Kohl of Wisconsin, chair of the Subcommittee on Juvenile Justice, and Democratic senator Joseph I. Lieberman of Connecticut, chair of the Subcommittee on Regulation and Government Information. These committees heard panels from both the industry and from concerned groups about content in video games. A statement on a bill to be proposed as the Video Game Rating Act of 1994 was also submitted. The act called for Congress to create the Interactive Entertainment Rating Commission, which would supervise an industry “voluntary” rating system. If the commission deemed this rating system unacceptable, it would install its own system. The idea of a government council approving material in this new medium and forcing products to be labeled prior to their publication was felt to be a violation of the First Amendment as a form of prior restraint. Defenders of the video games felt this bill submitted at the hearings was an ultimatum, and in itself a violation as it acted as a chilling effect on the industry with the threat of future legislation.

The senators aired excerpts from two controversial games, the popular Mortal Kombat (1993) and Night Trap (1993). Mortal Kombat, a martial arts combat game, featured bloodletting and finishing moves such as ripping an opponent’s heart out or removing his head and spinal cord. The even more controversial Night Trap featured digitized films of live actors. In one of its scenes, vampires use a drill to drain the blood from a scantily clad girl’s neck. Video game defenders felt that Lieberman’s remark that Night Trap “ought not to be available to people in our society” was a direct attack on freedom of speech. Lieberman also twice asked why the game was not simply pulled from store shelves. The majority of both consumers and members of the industry agreed, however, that a rating system at least was needed. The industry representatives agreed to develop such a system and inform the subcommittees of their progress.

Following the December 1993 session of hearings, Robert S. Peck submitted a statement on behalf of the American Civil Liberties Union (ACLU) that made several major points. For example, neither “sexually suggestive” nor “violent” expression should be singled out for restrictive legislative treatment. Further, the ACLU argued that requiring warning labels on expressive materials would violate the First Amendment, and that any such attempt could not overcome vagueness and overbreadth problems. The constitutional infirmities of this legislation were compounded by its impending threat of government regulation if the industry did not act acceptably. The ACLU also charged that the effort to label video games constituted a diversion from the problem of real violence in society. The ACLU compared the government ultimatum to Bantam Books v. Sullivan (1963), a case in which the US Supreme Court found that seizure, banning, and prosecution were not necessary to constitute a violation of the First Amendment. The mere “threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation” was a violation that produced a chilling effect. In the conclusion, the ACLU statement referred to the Court’s Erznoznik v. Jacksonville (1975) decision, which stated that “the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors.”

Divisions within the Industry

In the 1990s,the video game industry was effectively divided into three groups: closed-platform game systems, personal computer-based games, and coin-operated games. The International Digital Software Association (IDSA), which represented the closed-platform cartridge and CD game systems, and the Software Publishers Association (SPA), which represented many personal computer platform software publishers, proposed to establish separate rating systems. The IDSA established the Entertainment Software Rating Board (ESRB). Available to all manufacturers, regardless of whether they were IDSA members, this board established a rating system for video games: EC (early childhood: ages three and older); E (everyone, previously called K–A for kids to adults); E10+ (everyone over the age of ten years); T (teen); M (mature: ages seventeen and up); and AO (adults only: age eighteen and above).

The SPA, however, was not able to reconcile its own concerns about the new IDSA rating board. Its members feared that the ESRB might favor IDSA members’ products. Also, they argued that the five-hundred-dollar fees charged for rating products were excessive for the many small publishers in the SPA. SPA publishers, especially shareware creators, included educators, new mothers, and other professionals who wrote programs in their spare time and might not gross as much as the fee it took to submit to the ESRB. The SPA, in cooperation with similar groups, instead created an entirely independent organization, the Recreational Software Advisory Council (RSAC), whose rating system differed from that of the ESRB in two important ways. First, applicants could only submit a filled out questionnaire on the content of the games. Second, RSAC did not adopt an age-based rating system but rather a content-based label. The label introduced the use of three thermometers each having values from one to four for content: violence, nudity/sex, and language. Products rated 0 in all three categories received separate labels indicating that their material is suitable for all audiences. Both the RSAC and the ESRB systems included economic reprisals in case of falsification of submissions. The RSAC folded in 1999 and was later adopted into the Internet Content Rating Association (ICRA). The ICRA rating system was discontinued in 2010.

The third group, the coin-operated games, were represented by the American Amusement Machine Association (AAMA). They worked closely with the IDSA to develop the latter’s rating proposal. The problem with the coin-op based systems was that there was no practical way to enforce age limitations on arcade game players. The AAMA did, however, promise to put advisory labels on their machines for parents’ information.

The ESRB ultimately became the predominant rating system for video games, and the major console manufacturers do not license games for their systems without ESRB ratings. Many retailers also refuse to stock games that do not carry an ESRB rating. The ESRB rating system is self-regulating, without state or federal oversight. A 2005 California state law that sought to impose fines on stores that sold or rented violent video games to minors was struck down as unconstitutional by a 2011 Supreme Court decision in Brown v. Entertainment Merchants Association. In a majority opinion, Justice Antonin Scalia wrote, "Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world). That suffices to confer First Amendment protection." Similar laws were overturned in Louisiana, Minnesota, Illinois, and Michigan.

Following another particularly deadly school shooting at a Parkland, Florida, high school on February 14, 2018, that left seventeen people dead, debates were once again fueled regarding whether links exist between violence in media such as video games and youth violence; up to that point, there was reportedly still no scientific evidence to prove a connection. Regardless, amid discussions about the motive behind teenager Nikolas Cruz's attack on the school, President Donald Trump, who had placed blame on the violent nature of many video games as an issue immediately after the attack, convened a meeting in March with representatives of the video game industry (including the Entertainment Software Association) to discuss video game violence as conservative critics pressed once again for greater restrictions.

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