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Video game labeling bill introduced in Congress, ESA calls it unconstitutional

Congressman Jim Matheson (D) from Utah wants to put penalties behind violating the ESRB labels on games.
Congressman Jim Matheson (D) from Utah wants to put penalties behind violating the ESRB labels on games.
Jim Matheson

Congressman Jim Matheson (D-Utah) introduced a bill to the United States Congress Tuesday that would put federal penalties behind the existing voluntary ESRB labeling system and "prohibit the sales and rentals of adult-rated video games to minors." The Entertainment Software Association (ESA) responded to the legislation Thursday by calling the legislation unconstitutional and pointing to statistics showing that the games industry performs better than any other entertainment medium when it comes to selling mature games to kids.

Matheson's bill (H.R. 287) is titled the "Video Games Ratings Enforcement Act" and would make it illegal for a game to be shipped, sold or rented that does not have an Entertainment Software Ratings Board (ESRB) label on it. The bill would levy penalties of up to $5,000 for anyone that sells or rents a "Mature" rated game to anyone under the age of 17 or an "Adults Only" game to anyone under the age of 18.

The legislation is similar to that passed by the state of California in 2005 and was struck down by the Supreme Court in 2011.

We contacted both the ESA and Congressman Matheson's office today to get a statement on H.R. 287. Matheson had not responded by the time this article was published but the ESA sent back the following.

“The Entertainment Software Association (ESA) shares Representatives Matheson’s goal of ensuring parents maintain control over the entertainment enjoyed by their children. That is why we work with retailers and stakeholders to raise awareness about the proven Entertainment Software Rating Board (ESRB) system, the parental controls available on every video game console, and the importance of parents monitoring what games their children play.”

“However, this type of legislation was already ruled unconstitutional and is a flawed approach. Empowering parents, not enacting unconstitutional legislation, is the best way to control the games children play.”

An ESA representative also pointed us towards the latest "undercover shopper" survey statistics conducted by the Federal Trade Commission. The last survey was conducted in 2011 and shows that it is harder by far for underage children to purchase "Mature" rated games than it is to buy R-rated movies tickets or DVDs and music labeled as "Explicit."

Justice Antonin Scalia delivered the Supreme Court's majority opinion saying that video games are protected under the First Amendment.

“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages,” Scalia wrote.

"No doubt a state possesses legitimate power to protect children from harm ... but that does not include a free-floating power to restrict the ideas to which children may be exposed."

According to The Hill, Matheson says his bill differs because it uses the already existing ESRB rating system and does not try to define violent video games as the California bill did.

"I'm not a lawyer myself, and I'm not going to tell you that that's going to change the constitutional question necessarily," he told The Hill.

However, he said that finding a balance between respecting free speech and protecting children is a "discussion that's got to continue."

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