BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 450
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          Date of Hearing:  April 19, 2005

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Dave Jones, Chair
                   AB 450 (Yee) - As Introduced:  February 15, 2005

                              As Proposed To Be Amended
                                           
          SUBJECT  :   VIOLENT VIDEO GAMES

           KEY ISSUE  :  SHOULD THE LEGISLATURE PROHIBIT THE SALE OR RENTAL  
          OF VIOLENT VIDEO GAMES, AS SPECIFICALLY DEFINED, TO CHILDREN  
          16-YEARS OLD OR YOUNGER IN LIGHT OF STUDIES SUGGESTING THAT SUCH  
          GAMES CAUSE NEGATIVE PSYCHOLOGICAL, NEUROLOGICAL, AND BEHAVIORAL  
          IMPACTS? 

                                      SYNOPSIS

          This bill seeks to prohibit the sale or rental of violent video  
          games to minors.  The opponents of the bill contend that it is  
          unnecessary because the entertainment industry has created a  
          successful self-regulatory program to rate its products and  
          provide rating information.  Opponents also contend that the  
          legislation is unconstitutional because it violates the First  
          Amendment.  Proponents of the bill argue that the voluntary  
          system is not effective and that the bill has been crafted to  
          overcome First Amendment concerns.

           SUMMARY  :   Prohibits the sale or rental of violent video games  
          to minors.  Specifically,  this bill  :

          1)Expresses the Legislature's findings that exposing minors to  
            depictions of violence in video games makes those minors more  
            likely to experience feelings of aggression, to experience a  
            reduction of activity in the frontal lobes of the brain, and  
            to exhibit violent antisocial or aggressive behavior.

          2)Declares that the state has a compelling interest in  
            preventing violent, aggressive, and antisocial behavior, and  
            in preventing psychological or neurological harm to minors who  
            play violent video games.

          3)Prohibits the sale or rental of violent video games to minors,  
            defined as persons who are 16- years of age or younger. 









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          4)Defines "violent video game" as a video game in which the  
            range of options available to a player includes killing,  
            maiming, dismembering, or sexually assaulting an image of a  
            human being, if those acts are depicted in the game in a  
            manner that:

             a)   Does all of the following:

               i)     A reasonable person, considering the game as a  
                 whole, would find it appeals to a deviant or morbid  
                 interest in minors;

               ii)    It is patently offensive to prevailing standards in  
                 the community as to what is suitable to minors;

               iii)   It causes the game as a whole to lack serious  
                 literary, artistic, political, or scientific value for  
                 minors; or

             b)   Enables a player to virtually inflict serious injury  
               upon human beings or characters with substantially human  
               characteristics in a manner which is especially, heinous,  
               cruel or depraved in that it involves torture or serious  
               physical abuse to the victim.  Defines the terms: heinous,  
               cruel, depraved, torture, and serious physical abuse; and  
               lists pertinent factors to consider in determining whether  
               the violence is especially heinous, cruel, or depraved.

          5)Provides that violation of the title may be prosecuted by any  
            city attorney, county counsel, or district attorney, and may  
            result in fines up to $1,000 unless the defendant reasonably  
            relied on evidence that the purchaser was at least 17-years of  
            age.

          6)Clarifies that the section does not apply if the violent video  
            game is sold or rented to a minor by a minor's parents,  
            grandparent, aunt, uncle, or legal guardian.

           EXISTING LAW:  

          1)Prohibits the sale, lease, rental, or provision of any video  
            game intended for use by any person less than 18, which  
            contains any commercial advertisement, brand names,  
            trademarks, or copyrighted slogans of alcoholic beverages or  
            tobacco products in the design, presentation, packaging or  








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            advertisement of the video game.  (Penal Code section 308.5.)

          2)Requires every video game retailer to post a sign in a  
            prominent area providing information to consumers about a  
            video game rating system or notifying consumers that a rating  
            system is available, and requires retailers to make available  
            to consumers information that explains the video game rating  
            system.  (Bus. & Prof.  Code section 20650.)

          3)Prohibits the sale or distribution of harmful matter to  
            minors; "harmful matter" means matter, taken as a whole, which  
            to the average person, applying contemporary statewide  
            standards, appeals to the prurient interest, and is matter  
            which, taken as a whole, depicts or describes in a patently  
            offensive way sexual conduct and which, taken as a whole,  
            lacks serious literary, artistic, political, or scientific  
            value for minors.  (Penal Code sections 313 and 313.1.)

           FISCAL EFFECT  :   As currently in print, this bill is keyed  
          nonfiscal.

           COMMENTS  :  This bill is sponsored by the American Academy of  
          Pediatrics, Common Sense Media, and Girl Scout Councils of  
          California.  According to the bill's sponsors, "This legislation  
          is necessary because:  1) children are playing violent video  
          games; 2) violent video games have been proven to be harmful to  
          children's physical, mental and emotional well being; and 3)  
          children currently have free access to purchase or rent violent,  
          'M-rated' games that are not recommended for their age level."

          As explained by the Girl Scout Councils of California, "The best  
          selling video games glorify and reward players for virtually  
          committing heinous acts of crime and violence that would, in the  
          real world, be punishable by law.  Grand Theft Auto 3, a  
          Mature-rated video game, that portrays the brutal murder of  
          women, minorities, the elderly and police officers, is reported  
          to have been played by 70% of teenage boys."

          The sponsors cite to a study by the National Institute on Media  
          and the Family stating that 87 percent of boys play M-rated  
          games and 78 percent list an M-rated game among their favorites.  
           Proponents of the bill argue that the voluntary rating system  
          is not effective because of poor training and enforcement.  They  
          cite to a nationwide undercover study done by the Federal Trade  
          Commission (FTC) in 2003 in which 69 percent of the  








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          unaccompanied 13 to 16-year-olds purchased M-rated games.

          Proponents have made amendments to the bill to clarify that it  
          does not prohibit parents from purchasing video games for their  
          children if they so choose.  Proponents argue that the new  
          regulations would help parents to make informed purchasing  
          decisions. 

           ARGUMENTS IN OPPOSITION  :  Opponents of the bill argue that  
          legislation is unnecessary because the industry already provides  
          retailers with the tools for ratings enforcement and is striving  
          to achieve voluntary retailer rating enforcement.  According to  
          Entertainment Software Association (ESA), it is working with  
          dealers and retailers across the country to ensure that  
          retailers have information about the Entertainment Software  
          Rating Bureau (ESRB) and enforce ESRB ratings.  Under the  
          voluntary enforcement system, retailers are not supposed to sell  
          games rated "Mature" by the ESRB to children under age 17.  The  
          industry states that the FTC has praised the ESRB as having the  
          most comprehensive rating system in the entertainment industry.   
            

          Opponents of the bill also argue that it is unnecessary because  
          most video games do not contain violence.  ESA states that only  
          seven percent of the games have been rated "Mature."  They  
          contend that people over 18 are the primary purchasers of  
          computer games and console games, and that parents are involved  
          in the purchase of games more than 80 percent of the time.   
          California Retailer's Association argues that the bill would be  
          too difficult for retailers to implement.

          Opponents also argue that the bill is unconstitutional because  
          it regulates protected speech in violation of the First  
          Amendment.  They argue that the legislation will restrict  
          minor's access to video games that are neither obscene nor  
          harmful under California law or the First Amendment.  Opponents  
          caution that taxpayers would be liable for a plaintiff's court  
          costs and attorney's fees in the event of a successful challenge  
          of an enactment of the legislation.

           First Amendment:    There is no question that some video games  
          contain explicitly violent material, some of which targets  
          victims according to their gender or race.  In one game, the  
          player brutally beats up a prostitute.  In another game, the  
          player is instructed:  "My mission in the game is to kill the  








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          Haitians. ? Stinking nest of Haitians.  We gonna kill them all.   
          Kill all the Haitians."  Although courts have described such  
          games as "filth," they have also acknowledged that attempts to  
          regulate these games must not violate the First Amendment.

          The First Amendment protects the freedom of speech, which  
          includes entertainment as well as political and ideological  
          speech.  (  Shad v. Borough of Mount Ephraim  , 452 U.S. 61, 65  
          (1981).)  Courts have repeatedly held that video games are  
          considered to be "speech" for First Amendment purposes.  (  See  ,  
           Interactive Digital Software Assoc. v. St. Louis County,  329  
          F.3d 954 (8th Cir. 2003);  American Amusement Machine Assoc. v.  
          Kendrick  , 244 F.3d 572 (7th Cir. 2001).)   
           
          Obscenity is one of the few categories of speech which has  
          historically been unprotected.  (  Miller v. California  , 413 U.S.  
          15 (1973).)  While the U.S. Supreme Court has defined  
          "obscenity" as related to sexually-explicit material, it has  
          recognized that this definition of obscenity does not precisely  
          reflect the meaning of "obscene" as it is used in the English  
          language.  (  Id.  , at 19, n. 2.)  This bill uses language very  
          similar to the Supreme Court's definition of  "obscenity."  Thus  
          far courts have declined to expand the definition of obscenity  
          to patently graphic violence.  (  Video Software Dealers Assoc. v.  
          Maleng  , 325 F. Supp. 2d 1185 (Wash. Dist. Ct. 2004).)

          This bill does not seek to restrict all violent video games,  
          only the sale of the most heinously violent games to youth under  
          17.  Although courts have recognized that minors have First  
          Amendment rights, they have also acknowledged that those rights  
          are not always subject to the same protections as adults'  
          rights.  

          Generally, an attempt to regulate the content of protected forms  
          of speech must be necessary to serve a compelling state  
          interest, and the regulation must be narrowly tailored to  
          achieve that interest.  (  Republican Party of Minn. v. White  , 536  
          U.S. 765, 774-75 (2002).)  The legislative intent section of  
          this bill posits that the state has a compelling interest in  
          preventing violent, aggressive, and antisocial behavior, and in  
          preventing psychological or neurological harm to minors who play  
          violent video games.  Courts have repeatedly recognized that a  
          state has a legitimate and compelling state interest in  
          safeguarding both the physical and psychological well-being of  
          minors.  (  Sable Comm., Inc. v. FCC  , 492 U.S. 115 (1989).)   








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          Proponents of the bill have presented an extensive bibliography  
          of research done on this topic.  They have also included several  
          news articles in which teenagers that frequently played video  
          games engaged in violent behavior.  After one shooting spree,  
          which was described as a reenactment of a scenario from Grand  
          Theft Auto, the perpetrator allegedly said, "Life is like a  
          video game.  Everybody's got to die sometime."  

          In one school-shooting case, the assailant, who allegedly had no  
          appreciable exposure to firearms, hit eight of his nine shots  
          "beyond the military standard for expert marksmanship."   
          Proponents argue that the video games, especially those played  
          in the first person, trained him to be an effective killer.   
          They comment that several military and law enforcement training  
          simulators are "more or less identical" to violent video games.   
          The sponsors state, "The American Academy of Pediatrics Policy  
          Statement on Media Violence stated that playing violent video  
          games accounts for a 13% to 22% increase in adolescents' violent  
          behavior."   

          Opponents of the bill argue that studies indicate that youth  
          violence is caused by a number of factors with the main culprits  
          being drugs, guns and gangs.  They cite to a report by the  
          Washington State Department of Health which found that "it was  
          extremely difficult to distinguish between the relatively small  
          long-term effects of exposure to media violence and those of  
          other influences."  Courts have repeatedly found that studies do  
          not support that video games cause individuals to commit violent  
          acts.  (  See  ,  AAMA  , 244 F.3d 572.) 

          Proponents of the bill testify about their own professional  
          experiences and also present studies to support that violent  
          video games have a psychological impact on youth - in particular  
          increased aggression.  Summarizing the research, the sponsor  
          states:

               Since teens are wiring the circuits for self control,  
               responsibility and relationships they will carry with them  
               into adulthood, they are more impressionable than we  
               thought. Active participation by youth in playing violent  
               video games has a greater impact than watching television.   
               Youth choose actions where they are rewarded for causing  
               violence to another character.  Repetition greatly  
               increases learning and also causes youth to identify with  








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               the aggressor in the game.
                
               Dozens of studies on violent video games show five major  
               effects.  Playing violent games leads to increased  
               physiological arousal, increased aggressive thoughts,  
               increased aggressive feelings, increased aggressive  
               behaviors, and decreased pro-social or helping behaviors.   
               These studies include experimental studies (that show  
               playing violent games actually causes increases in  
               aggression), correlational studies (where long-term  
               relations between game play and real-world aggression can  
               be shown), and longitudinal studies (where changes in  
               children's aggressive behaviors can be demonstrated).   
               (Internal citations omitted.)

          Courts in other jurisdictions have struck down regulations  
          attempting to limit the sale of violent video games to youth  
          because of a lack of evidence to support that violent video  
          games are psychologically harmful.  (  Interactive  , 329 F.3d at  
          958.)  Proponents of this bill seem to have presented  
          significantly more evidence of video games' negative  
          psychological impact on children than in those previous cases in  
          which the courts found the evidence to be lacking.  

          Other attempted regulations have failed because the research did  
          not support the purpose of the law.  (  Video Software  , 325 F.  
          Supp. 2d at 1188 no showing that banning video games would lead  
          to a decrease in actual violence against law enforcement  
          officers.)  The sponsors of this bill have presented evidence  
          directly related to the desired outcome.  That is, the research  
          presented supports that violent video games lead to increased  
          aggression and violence in youth.  Therefore regulating the sale  
          of such games appears necessary for the stated interest of  
          "preventing violence, aggressive, and antisocial behavior, and  
          in preventing psychological or neurological harm to minors who  
          play video games."

          Opponents argue that there is no showing that violent video  
          games have a greater impact on youth than other forms of violent  
          media.  The sponsors contend that studies support that video  
          games are more harmful than other forms of violent media because  
          there is an increased amount of violence, the violence is  
          interactive (especially in the first-person games), and the  
          video games incorporate techniques traditionally used in  
          education, such as participation, repetition and reward.








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          Finally, any regulations must be narrowly tailored to fulfill  
          the state's compelling state interest.  Unlike regulations which  
          have failed in other states, this bill seeks to restrict only  
          the most extreme depictions of violence against humans.   
          (  Compare  ,  Video  , 325 Fed. Supp. 2d at 1189-1190.)  The language  
          used in the bill regulates the sale of only those games that  
          contain the most heinous, cruel or depraved acts of violence.   
          It also is limited to those games which, taken as a whole, lack  
          any redeeming social, literary, artistic, political, or  
          scientific values.  This latter language is consistent with the  
          Supreme Court's obscenity definitions and has withstood  
          challenges that it is too vague.

          Courts have rejected many attempts to regulate violence because  
          the regulations contained language which was too vague.  This  
          bill specifically defines the terms heinous, cruel, depraved,  
          torture, and serious physical abuse; and lists pertinent factors  
          to consider in determining whether the violence is especially  
          heinous, cruel, or depraved.  The term "heinous, cruel, or  
          depraved" is used in federal law to determine if an aggravating  
          factor exists in a crime so as to warrant the death penalty.   
          (18 U.S.C. section 3592(c)(6).)  The bill incorporates the  
          definitions used in the federal criminal jury instructions for  
          this consideration.  In the context of death penalty challenges,  
          the term "heinous, cruel, or depraved" has withstood the  
          challenge of being unconstitutionally vague because it includes  
          the accompanying definitions.  (  See, e.g  .,  United States v.  
          Jones, 132 F.3d 232 (5th Cir. 1998) affirmed on other grounds,  
            527 U.S. 373 (1999) citing   Maynard v. Cartwright, 486 U.S. 356  
          (1988)   .   )  
            
           Author's Amendments:   The author has agreed to accept amendments  
          to the bill in response to concerns raised by the opposition and  
          the Committee.  This Committee felt that an alternative  
          definition to the current "obscenity" language was necessary in  
          case a court declined to extend the parameters of obscenity to  
          extremely violent material.  Therefore, the author has agreed to  
          make the following amendments in Committee (note, this is the  
          entire text of the bill, with the most recent amendments in  
          italics):

          Section 1.  The Legislature finds and declares all of the  
          following:
               (a) Exposing minors to depictions of violence in video  








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          games, including sexual and heinous violence, makes those minors  
          more likely to experience feeling of aggression, to experience a  
          reduction of activity in the frontal lobes of the brain, and to  
          exhibit violent antisocial or aggressive behavior.
               (b) Even minors who do not commit acts of violence suffer  
          psychological harm from prolonged exposure to violent video  
          games.
               (c) The state has a compelling interest in preventing  
          violent, aggressive, and antisocial behavior, and in preventing  
          psychological or neurological harm to minors who play violent  
          video games. 

                          TITLE 1.2A.  VIOLENT VIDEO GAMES

          1746.  For purposes of this title, the following definitions  
          shall apply:
               (a) "Minor" means any person who is 16 years of age or  
          younger.
               (b) "Person" means any natural person, partnership, firm,  
          association, corporation, limited liability company, or other  
          legal entity.
               (c)  "Video game" means any electronic amusement device  
          that utilizes a computer, microprocessor, or similar electronic  
          circuitry and its own monitor, or is designed to be used with a  
          television set or a computer monitor, that interacts with the  
          user of the device.
               (d)  "Violent video game" means a video game in which the  
          range of options available to a player includes killing,  
          maiming, dismembering, or sexually assaulting an image of a  
          human being, if those acts are depicted in the game in a manner  
          that  does all of the following  :  
           1)Does all of the following:
              a)   1)  A reasonable person, considering the game as a whole,  
               would find  ,  it appeals to a deviant or morbid interest in  
               minors;
              b)   2)  It is patently offensive to prevailing standards in  
               the community as to what is suitable to minors;
              c)   3)  It causes the game as a whole to lack serious  
               literary, artistic, political, or scientific value for  
               minors; or
          2)Enables the player to virtually inflict serious injury upon  
            human beings or characters with substantially human  
            characteristics in a manner which is especially heinous,  
            cruel, or depraved in that it involves torture or serious  
            physical abuse to the victim.  For purposes of this section,  








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            "heinous, cruel, or depraved" shall mean:
             a)   ''Heinous'' means shockingly atrocious. For the killing  
               to be heinous, it must involve such additional acts of  
               torture or serious physical abuse of the victim as set  
               apart from other killings.
             b)   ''Cruel'' means that the defendant intended to inflict a  
               high degree of pain by torture or serious physical abuse of  
               the victim in addition to killing the victim.
             c)   ''Depraved'' means that the defendant relished the  
               killing or showed indifference to the suffering of the  
               victim, as evidenced by torture or serious physical abuse  
               of the victim. 
             d)   ''Torture'' includes mental as well as physical abuse of  
               the victim. In either case, the victim must have been  
                                                        conscious of the abuse at the time it was inflicted; and  
               the defendant must have specifically intended to inflict  
               severe mental or physical pain or suffering upon the  
               victim, apart from killing the victim.
             e)   ''Serious physical abuse'' means a significant or  
               considerable amount of injury or damage to the victim's  
               body which involves a substantial risk of death,  
               unconsciousness, extreme physical pain, substantial  
               disfigurement, or substantial impairment of the function of  
               a bodily member, organ, or mental faculty. Serious physical  
               abuse--unlike torture--does not require that the victim be  
               conscious of the abuse at the time it was inflicted.  
               However, the defendant must have specifically intended the  
               abuse apart from the killing.
             f)   Pertinent factors in determining whether a killing was  
               especially heinous, cruel, or depraved include: infliction  
               of gratuitous violence upon the victim above and beyond  
               that necessary to commit the killing; needless mutilation  
               of the victim's body; and helplessness of the victim.

           1746.1.(a) A person may not sell or rent a violent video game  
                to a minor.
               (b) Proof that a defendant, or his or her employee or  
          agent, demanded, was shown, and reasonably relied upon evidence  
          that a purchaser or renter of a violent video game was 17 years  
          of age or older shall be a defense to any action brought  
          pursuant to this title.  That evidence may include, but is not  
          limited to, a driver's license or an identification card issued  
          to the purchaser or renter by a state or by the Armed Forces of  
          the United States.
               (c) This section shall not apply if the violent video game  








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          is sold or rented to a minor by the minor's parent, grandparent,  
          aunt, uncle, or legal guardian.
          1746.2.  Any person who violates any provision of this title  
          shall be liable in an amount of up to one thousand dollars  
          ($1,000), or a lesser amount as determined by the court.   
          However, this liability shall not apply to any person who  
          violates those provisions if he or she is employed solely in the  
          capacity of a salesclerk or other, similar position and he or  
          she does not have an ownership interest in the business in which  
          the violation occurred and is not employed as a manager in that  
          business.
     1746.3.A violation of this title may be prosecuted by any city  
          attorney, county counsel, or district attorney.  In any case in  
          which a city attorney, county counsel, or district attorney has  
          not prosecuted a violation of this title, a parent, legal  
          guardian, or other adult acting on behalf of a minor to whom a  
          violent video game has been sold or rented may  bring an action  
          to enforce this title.  report the violation to the city  
          attorney, county counsel, or district attorney.
     1746.4.The provisions of this title are severable.  If any provision  
          of this title or its application is held to be invalid, that  
          invalidity shall not affect other provisions or applications  
          that can be given effect without the invalid provision or  
          application.
          

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Academy of Pediatrics (sponsor)
          Common Sense Media (sponsor)
          Girl Scout Councils of California (sponsor)
          California Alliance Against Domestic Violence
          California Psychiatric Association
          California Psychological Association
          Junior Leagues of California
          State Public Affairs Committee
          Sutter Lakeside Community Services
          Women's Policy Institute 
          Women's Mountain Passages

           Opposition 
           
          ACLU








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          California Retailers Association
          Interactive Entertainment Merchants Association
          Motion Picture Association of America
          Entertainment Software Association
          American Electronics Association
          International Game Developers Association
           
          Analysis Prepared by  :    Elizabeth Linton / JUD. / (916)  
          319-2334