BILL ANALYSIS
AB 450
Page 1
Date of Hearing: May 3, 2005
ASSEMBLY COMMITTEE ON ARTS, ENTERTAINMENT, SPORTS,
TOURISM, AND INTERNET MEDIA
Ed Chavez, Chair
AB 450 (Yee) - As Amended: May 2, 2005
SUBJECT : Violent Video Games
SUMMARY : Prohibits the sale or rental of violent video games,
as defined, to persons aged 16 and under. 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.
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
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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.
5)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.
6)Requires that each violent video game include a label
indicating that it may not be sold to anyone under 17.
7)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.
8)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)Requires video game retailers 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.
2)Requires video arcades to post a sign to notify consumers of
the existence of a video game rating system to aid in the
selection of games, and to make available a brochure that
explains the rating system.
3)Prohibits the sale, lease, rental, or provision of any video
game that is intended primarily for use by minors which
includes paid commercial advertisements, brand names,
trademarks, or copyrighted slogans of alcoholic beverages or
tobacco products in the content, packaging, or advertising of
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the video game.
FISCAL EFFECT : None. This bill is not keyed fiscal.
COMMENTS :
1)Purpose . The author indicates that the purpose of this bill
is to "keep children from being able to purchase ultra-violent
video games, which can be harmful to their mental well being,
without their parent's knowledge."
The author reports that "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 the aggressor
in the game. Dozens of studies on violent video games,
including an analysis of 86 independent samples with 11,014
participants, 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
(Anderson, 2004; Anderson, et. al. 2004; Anderson & Bushman,
2001, Uhlmann & Swanson, 2004). These studies prove causation
of aggression through experimental studies (that show playing
violent games actually causes increases in aggression),
real-world aggression through correlational studies (where
long-term relations between game play and real-world
aggression can be shown), and include several longitudinal
studies (where changes in children's aggressive behaviors can
be demonstrated). Furthermore, students who played more
violent video games had greater involvement in physical fights
(Gentile, 2004), became desensitized to violence, and
developed pro-violence attitudes and increased tolerance of
violence (Funk, 2004). 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. When considering the negative impact
violent video games have on youth, the evidence is strong:
playing violent video games has more effect on increased youth
aggression than second-hand smoke has on causing cancer, or
lead exposure links to decreased IQ (Anderson, 2004).
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2)Entertainment Software Rating Board (ESRB) . This
self-regulatory body was established in 1994 by the
Entertainment Software Association, formerly the Interactive
Digital Software Association. The ESRB independently applies
and enforces ratings, advertising guidelines, and online
privacy principles adopted by the computer and video game
industry. To date, the ESRB has rated more than 10,000 titles
submitted by over 350 publishers.
The "ratings have two parts: rating symbols that suggest what
age group the game is best for, and content descriptors that
indicate elements in a game that may have triggered a
particular rating and/or may be of interest or concern," such
as blood, use of alcohol, animated blood, strong language,
mild violence and intense violence. There are approximately
31 content descriptors in use by the ESRB. The 6 ratings used
by the ESRB are:
EC - "Early Childhood" have content that may be suitable
for persons ages 3 and older. Titles in this category
contain no material that parents would find inappropriate.
1% of all games rated by the ESRB in 2003 received an EC
for Early Childhood ratings.
E - "Everyone" have content that may be suitable for
persons ages 6 and older. Titles in this category may
contain minimal violence, some comic mischief and/or mild
language. 57 percent of all games rated by the ESRB in
2003 received an E.
E10+ - "Everyone 10 and older" have content that may be
suitable for ages 10 and older. Titles in this category may
contain more cartoon, fantasy or mild violence, mild
language, and/or minimal suggestive themes. (This category
was just added to the ESRB ratings system in 2005.)
T - "Teen" have content that may be suitable for persons
ages 13 and older. Titles in this category may contain
violent content, mild or strong language, and/or suggestive
themes. 32% of all games rated by the ESRB in 2003
received a T for Teen rating.
M - "Mature" have content that may be suitable for persons
ages 17 and older. Titles in this category may contain
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mature sexual themes, more intense violence and/or strong
language. 10% of all games rated by the ESRB in 2003
received an M for Mature rating.
AO - "Adults Only" have content suitable only for adults.
Titles in this category may include graphic depictions of
sex and/or violence. Adults Only products are not intended
for persons under the age of 18.
RP - "Rating Pending" have been submitted to the ESRB and
are awaiting final rating.
According to the ESRB, of the 1,036 game ratings* assigned
in 2004:
54% received an E (Everyone) rating
33% received a T (Teen) rating
12% received an M (Mature) rating
<1% received an EC (Early Childhood) rating
<1% received an AO (Adults Only) rating
* The E10+ rating was not used in 2004
3) Film Rating System . The ESRB ratings system is similar
in its structure and operation to the ratings system
developed by the Motion Picture Association of America
(MPAA) more than thirty years ago that has now become a
mainstay of the theater-going marketplace. Although
completely voluntary in its structure, adoption, and
implementation, it has become so ingrained in American
culture that many children grew up thinking that they might
be arrested for gaining admission to an R-rated motion
picture. The Entertainment Software Association, which
instituted the ESRB, argues that the ESRB is in its infancy
but is also on its way to becoming a mainstay in the video
game retail arena.
Although the MPAA system is strictly voluntary, after its
introduction into the marketplace, there were attempts by
governmental entities to convert it into a regulatory
mandate which were blocked by the courts.
4) Federal Trade Commission (FTC) . In 1999 President
Clinton asked the FTC and the Department of Justice to
undertake a study of whether the movie, music recording,
and computer and video game industries market and advertise
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products with violent content to youngsters. The
President's request paralleled Congressional calls for such
a study. The FTC initiated an ongoing review of these
industries and has issued four reports, with the last
report issued in July 2004, focused on how violent
entertainment is marketed to children and the use and
enforcement of ratings systems at the point-of-sale.
For the video game industry, FTC review has included
nationwide undercover surveys in which unaccompanied
children, ages 13-16, attempted to buy M-rated video games.
In 2000, the survey found that children were able to buy
M-rated games 85% of the time, in 2001, 78%, and in 2003,
69% of the time. The FTC reported that "the numbers still
fall short of what might be expected given the multi-year
effort by the ESRB to encourage retailers to adopt
restrictive sales policies."
Since the July 2004 report, the Interactive Entertainment
Merchant's Association (IEMA) announced that all merchants
that belong to the association would have in place by the
end of 2004 a carding program and an identification
checking process for the sale or rental of all M-rated
games.
The FTC has specifically avoided a call for legislation in
this area opining that "[a] well-constructed
self-regulatory system can be more prompt, flexible, and
effective than government regulation, and can be especially
appropriate when government intervention would raise
significant First Amendment concerns."
5) Retailer Compliance Signage Mandate in California . Last
year, the Legislature mandated that all video game
retailers post a sign regarding the availability of a video
game ratings system and make brochures available that
explain the system. (Chapter 630, Statutes of 2004) This
mandate took effect on January 1, 2005. There are no
statewide studies or surveys to indicate the level of
compliance among retailers.
6) First Amendment . The U.S. Supreme Court has established
that minors are protected by the First Amendment's right to
free speech. This longstanding constitutional principal
has been the central focus of constitutional challenges in
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federal courts to statutes and ordinances in other states
regulating the marketplace and the commercial distribution
of violent video games to minors. In every case, the
courts have held that the First Amendment was violated and
that the government cannot constitutionally limit access to
video games by minors. See Video Software Dealers Assoc.
v. Maleng, 325 F. Supp. 2d 1185, (Wash. Dist. Ct. 2004),
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), Video
Software Dealers Assoc. v. Webster, 968 F.2d 684 (8th Cir.
1992).
Typical of the findings are those from AAMA v. Kendrick in
which the court opined that the:
"studies do not find that video games have ever caused
anyone to commit a violent act, as opposed to feeling
aggressive, or have caused the average level of violence to
increase anywhere. And they do not suggest that it is the
interactive character of the games as opposed to the
violence of the images in them, that is the cause of the
aggressive feelings. The studies thus are not evidence
that violent video games are any more harmful to the
consumer or the public safety than violent movies or other
violent, but passive entertainment. It is highly unlikely
that they are more harmful, because 'passive' entertainment
aspires to be interactive too and often succeeds." AAMA,
244 F.3d @ 578-579.
The author indicates that new research since the last court
review in 2004 "provide(s) clear evidence that violent video
games increase aggressive behaviors, thoughts, and attitudes,
as well as decreases in emotional empathy and pro-social
helping behaviors thereby jeopardizing children's
psychological health." Opponents to this measure respond that
the studies relied upon by the author "present nothing new in
substance" and have been repeatedly rejected by the courts.
They further report that this same research indicates that
"there are many risk factors for aggressive behavior, that
media violence is only one factor" and that the research also
shows that "elimination of video games from a child's media
diet will not eliminate severe aggression."
The studies referenced by both parties are primarily those
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based on the research of Dr. Craig A. Anderson, a psychologist
on the faculty of Iowa State University. Dr. Anderson has
studied media violence and has been published extensively, and
served as an expert witness in several of the federal cases
challenging video game ordinances and statutes.
7) Implementation by Retailers . This bill requires a
retailer to perform an analysis of each game offered for
sale to determine whether the contents of the game fall
within the definitions set forth, and then place a label on
the game, indicating that it may not be sold to anyone
under 17 years of age. The subjective analysis required of
retailers in this bill is typical of, and in a good part
based on, criminal law and procedure in determining the
intent of a murderer in federal cases.
The California Retailers Association (CRA) argues that the
bill "uses phrases that require subjective interpretation,
judgment, constructs, opinion, valuation, appraisal and an
ability to gauge measures and norms that are not within the
capability or purview of a retailer." The CRA also opines
that the bill "would require retailers to individually
play/view all video games they sell and make individual and
independent determinations whether each game fits the
criteria for 'violent'" (e.g. "what is 'patently offensive
to community standards'" or to "judge a game's artistic or
literary value?[or] 'interpret mental torture'").
In 2004, the Maleng Court examined a Washington statute with
standards similar to those proposed by this bill and found
the statute vague and therefore unconstitutional. The
Washington statute provided, in part, "video games that
contain realistic or photographic-like depictions of
aggressive conflict in which the player kills, injures, or
otherwise causes physical harm to a human form in the
game?." It should be noted that this statute applied only
to video games in which the player could inflict virtual
harm on a law enforcement officer. In that respect, the
Washington statute was more narrow in construction, since
the retailer would have a clear signal as to whether to
apply the statute if the game involved a law enforcement
officer. However, the court noted that even that term was
vague asking whether it applied to fire personnel and
others in the field.
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The Maleng Court concluded that the terms were
unconstitutionally vague, recognizing that "[l]egislative
enactments must 'give the person of ordinary intelligence a
reasonable opportunity to know what is prohibited so that
he may act accordingly.'" Maleng 325 F. Supp. 2d at 1190
(quoting Grayned v. City of Rockford, 408 U.S. 104, 108
(1972)). The Court additionally opined that the result of
such legislation would chill free speech for all because
"[n]ot only is a conscientious retail clerk (and her
employer) likely to withhold from minors all games that
could possibly fall within the broad scope of the Act, but
authors and game designers will likely 'steer far wider of
the unlawful zone?than if the boundaries of the forbidden
area were clearly marked.'" Maleng 325 F. Supp. 2d at
1191.
The background provided to the committee by the author does
not address the bill's impact on retailers.
8) Technical Issues .
a) Video Game - The bill defines a video game as hardware
rather than software (page 2, lines 20-24). Existing law
requiring the retailers of video games to post signs
regarding the availability of a ratings system defines
video games. For purposes of consistency with current law
governing video game retailers, this bill should cross
reference Business and Professions Code 20652 (a) (2) to
define video games as follows:
"Video game" means an object or device that stores
recorded data or instructions, receives data or
instructions generated by a person who uses it, and,
by processing the data or instructions, creates an
interactive game capable of being played, viewed, or
experienced on or through a computer, gaming system,
console, or other technology.
b) Family Exception - this bill appears to exempt parents,
grandparents, aunts, uncles or legal guardians from the
measure, but the need for the provision is not clear, and
additionally lacks clarity (page 4, lines 3-5). This bill
only applies to specified persons (generally retailers) and
only applies to the sale or rental of games. The bill
awkwardly exempts specified family members of the minor
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from its provisions, apparently contemplating and
permitting a family member or legal guardian to provide a
violent video game to a minor. This is not necessary since
the bill only applies to sales and rentals.
9) Federal Legislation . A bipartisan measure has been
introduced in the U.S. Senate to research the effects of
specified media on child development. The "Children and
Media Research Advancement Act" would authorize $100
million over five years to establish a program on children
and the media within the National Institute of Child Health
and Human Development to study the role and impact of
electronic media in the development of children. An
independent panel of experts would be convened to review,
synthesize and report on research, theory, and applications
in the social, behavioral, and biological sciences and to
establish research priorities regarding the positive and
negative roles and impact of electronic media use,
including television, motion pictures, DVD's, interactive
video games, and the Internet, and exposure to that content
and medium on youth in the following core areas of child
and adolescent development.
REGISTERED SUPPORT / OPPOSITION :
Support
American Academy of Pediatrics
The Honorable Cruz Bustamante, Lieutenant Governor
California Alliance Against Domestic Violence
California Commission on the Status of Women
California Psychiatric Association
California Psychological Association
Capitol Resource Institute
California State Conference
of the National Association of Colored People
California State PTA
Common Sense Media
Feather River College
Friends Committee on Legislation
Girl Scout Councils of California
Junior Leagues of California State Public Affairs Committee
Maidu Cultural & Development Group
NAACP Legal Defense and Educational Fund, Inc.
Northern California Society of Public Health Educators
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Parents Television Council
PLS-Domestic Violence Services
Plumas County Child Care and Development Planning Council
Portola C.A.R.E.S. Resource Center
Santa Clara County After-School Collaborative
Sierra Valley Even Start Family Literacy Program
Stanislaus County Children's Council
Support Network for Battered Women
Sutter Lakeside Community Services
Opposition
American Civil Liberties Union
American Electronics Association
California Broadcasters Association
California Chamber of Commerce
California Retailers Association
Entertainment Software Association
Interactive Entertainment Merchants Association
International Game Developers Association
Interactive Entertainment Merchants Association
The Media Coalition
Motion Picture Association
National Association of Theatre Owners of California/Nevada
Recording Industry Association of America
Video Software Dealers Association
Analysis Prepared by : Kellie Smith / A.,E.,S.,T. & I.M. /
(916) 319-3450