BILL ANALYSIS
AB 450
Page 1
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