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Why lawmakers across the country are suddenly smitten with the idea of curbing violent video games may be somewhat of a mystery, but the answer could lie in the fact that the topic makes good drama — and skilled politicians know how to use drama to their advantage. Thumbing through the TV listings, a viewer could form the impression that violence spurred on by playing violent games is reaching epidemic proportions in this country. A recent episode of NBC’s hit series “Law & Order” centered on two teens who played violent videogames to the extreme, presumably leading them to commit murderous acts. Not to be outdone by fictional depictions, the CBS news magazine “60 Minutes” ran a segment on a real-life teen killer who allegedly acted out a scene from a video game where players shoot up a police station. A FLURRY OF LEGISLATION All of the publicity is fueling the political metabolism of lawmakers nationwide who are introducing bills to curb access by minors to these games. The Entertainment Software Association estimates there are more than 50 such legislative initiatives on the table in states and municipalities across the country. California now has resurrected a bill calling for fines of up to $1,000 for selling a violent game to anyone below age 17. Washington state is entertaining two bills — one requiring warning signs in stores that sell games and the other allowing people to sue manufacturers and retailers for personal injury or wrongful death if the video game was a factor in the tragedy. Late last year, Illinois Gov. Rod Blagojevich told his state’s parents that he would propose two bills that restrict the distribution of violent and sexually explicit video games to minors. Blagojevich says his legislation would work because it narrowly defines what constitutes a verboten game. Both Democrats and Republicans in the Illinois Legislature criticized the governor’s proposal, calling it vague and “patently unconstitutional,” but fearing political fallout in the next election, most of them voted for the measure known as the Safe Games Illinois Act. With the 91-19 vote in the House, the bill goes on to the state Senate for consideration. Under the bill, retailers who sell violent or sexually explicit video games to children younger than 18 could face up to a year in prison as well as a $5,000 fine. Stores also would be required to label violent games and post signs describing the industry’s ratings as well as the state’s mandated restrictions. These efforts — ironically, in some instances — indeed may emerge as the next government initiative to defend the family, joining the ranks of those who support a ban on gay marriage or the president’s “No Child Left Behind” policy. But the move to halt video game sales carries a high constitutional price tag — one that even eager lawmakers may not be able to afford. Apparently, the lawyers who advise these officials are failing to inform their clients about one important point. Every piece of legislation regulating violent video games has failed when challenged in the federal courts. Or perhaps the lawmakers just aren’t listening because the political drama surrounding the issue is too juicy to resist. The legal analysis is quite simple. Video games have expressive elements in that they contain story lines — just like movies and books. And sometimes those story lines are violent — again, just like movies and books. And just as movies and books are protected by the First Amendment, so too are video games. To place restrictions on violent video games, a government will need to prove that the games cause harm to the minors who play them. So far, such evidence remains elusive. Social-science research on the topic has never shown a causal link between playing violence on a screen and behaving violently in society. As the 7th U.S. Circuit Court of Appeals noted in striking down an Indianapolis ordinance limiting minors’ access to violent video games, “The grounds must be compelling and not merely plausible.” SINGLING OUT ONE INDUSTRY The lack of evidence proving harm is only one of the hurdles a government must overcome to enact constitutionally sound video game restrictions. Even if a connection could be found — and that is not likely to happen — how are violent video games any different from violent movies? If a minor who plays a violent game is at risk, surely he or she must be in similar peril when watching a movie. Singling out the game industry for restriction while movies go unregulated will raise other constitutional problems. That’s always the sticking point with censorship. It’s tough for government to know when to stop. It’s what lawyers call the “slippery slope.” Once one form of expression is halted, the government feels compelled to go after similar types. So why waste time creating measures that cannot withstand a constitutional challenge? That’s a question lawmakers should reflect upon before joining the lynch mob against violent video games, regardless of the drama it creates. While the laws might be popular among some family organizations — and politically expedient at the moment — they cannot be enforced. Time and taxpayer dollars are better spent encouraging parents to take a peek at what electronic games their children are playing, use the guidelines that already are available and make decisions that are appropriate for their families. Robert D. Richards is a professor of journalism and law at Pennsylvania State University and founding co-director of the Pennsylvania Center for the First Amendment.

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