SEATTLE -- In an effort to protect kids from violent imagery and the rest of us from violent kids, the state of Washington is prepared to make it illegal for stores to give youngsters access to interactive images of mayhem.
A bill that restricts the sale or rental of some violent video and computer games to adults-only customers passed unanimously in both the state House and Senate. Gov. Gary Locke is expected to sign the measure this week.
If he does, legal experts who are debating the law's constitutionality say it will mark the first time a state has made it a crime to sell violent video games to people under the age of 17 years old. Store clerks and owners who break the law could face fines up to $500 per incident.
"Everyone in games in Seattle has been talking about this bill," said Mark Long, president of Zombie Studios, a Seattle video-game design house that has produced several military-style action-adventure games, including the Spec Ops series, Rainbow Six: Covert Ops Essentials and the Eckes vs Sever movie tie-in game.
"I don't oppose the bill, I endorse it -- since it's not outlawing the design and development of games that may be judged violent," Long said, "but rather the sale or rental of games rated Mature (17 or older) or with a content descriptor of Violence (aggressive conflict)."
Several groups have asked Gov. Locke to veto the bill on First Amendment grounds. The Washington chapter of the American Civil Liberties Union, the Media Coalition (which represents publishers, bookstores, librarians and magazine distributors, as well as recording, movie and video-game manufacturers and retailers) and the Interactive Entertainment Merchants Association argue the legislation represents an attack on freedom of speech.
"It will be a complete waste of taxpayers' funds to have it become law," said Jerry Sheehan, legislative director for the ACLU chapter. He said it is "virtually certain that it will be challenged in the courts" and that federal courts of appeals elsewhere in the country have found similar efforts unconstitutional in the past few years.
"In an era where we're cutting people's dental care and health care in our own state because of the massive budget shortfall we have, this is certainly a place where the governor can save some dollars by vetoing this measure," he said.
Eric A. Prager, a partner at the New York City new media law firm Darby & Darby said the legal issue is not so black and white.
"The First Amendment protection goes to the speaker, and in this case the speaker is going to be the video-game manufacturer," Prager said. Since the designers and publishers of the video games are not the target of the legislation, he contends, no fundamental conflict exists between their First Amendment rights and the states' interest in protecting minors from the harmful effects of the violent content.
However, Sheehan said being able to publish something is of no value if the government can ban people from seeing it. The real issue, he added, is whether the public is being denied access to material that is protected by the Constitution.
In any case, Prager said state and federal lawmakers are "under a lot of pressure from consumer groups to protect minors from all sorts of content that they come in contact with."
He said they must strike a balance between the government's legitimate interest in protecting minors from harmful content and the entertainment companies' right to sell whatever they want, within the bounds of decency.
"It's certainly fair game for legislatures to think about these issues," he said. "The question in my mind is whether the responsibility for protecting minors is that of the state or their parents."
Nicholas Hassell, a 15-year-old gamer living in a Seattle suburb, said he believes parents would rather demand new laws than take responsibility for controlling their own kids.
"If more parents begin to take responsibility for their children's actions, instead of pawning it off on some retail clerk, then everyone would be better off; especially the helpless retail clerk," he said.
Efforts to regulate minors' access to violent games have been underway for several years, spurred by Sen. Joseph Lieberman's (D-Conn.) commission hearings on the effects of media violence on children.
Game publishers now voluntarily submit nearly every video game to the Entertainment Software Rating Board, which rates each game according to its appropriateness for various age groups. Each game receives a letter grade -- E for everyone, K-A for kid to adult, T for teens, EC for early childhood, M for mature and AO for adults only. And game boxes include one or more of two dozen descriptors that inform the consumer about elements such as "animated blood" and "comic mischief" and warns them about nudity, profanity and characters using alcohol, tobacco or illicit drugs.
The courts have taken differing views on whether legislatures have the right to regulate access to video games.
A law adopted by the St. Louis, Missouri, county council restricting access to violent games in arcades and stores has gained the support of U.S. District Judge Stephen Limbaugh. He reviewed four different video games and found "no conveyance of ideas, expression, or anything else that could possibly amount to speech."
Limbaugh said video games are more like board games, which contain no "content" protected by the First Amendment.
Most other cases have been civil lawsuits against game makers and movie studios, such as those filed by families of victims in the Columbine High School shootings and similar incidents.
Last year a federal appeals court dismissed claims that producers of violent games and movies were liable in the deaths of three girls killed in a 1997 shooting at a school in Paduka, Kentucky.
Defendants included Id Software, the maker of Quake, Doom and Castle Wolfenstein -- along with movie studios and Meow Media, which operates a pornographic website.
The U.S. Supreme Court turned down an appeal of that decision this year.
Meanwhile, Arkansas is deciding whether to pass a law (PDF) similar to the one in Washington. This legislation, however, adds nudity and pornographic content to the list of prohibited subjects in video games.
