Is New York's video game law necessary?
Is it constitutional?
Dr. Michael Rich, Director of the Center for Media and Child Health at Harvard Medical School, and Adam Thierer, Senior Fellow at the Progress & Freedom Foundation in Washington, D.C., squared off on the Bloomberg network to debate the merits of the New York law signed last night by Gov. David Paterson.
Thierer believes the law is unnecessary and will be struck down as unconstitutional. Dr. Rich worries about the training abilities of games in relation to violence and wants social science injected into the game rating process.
GP: We agree that the New York law is unnecessary. However, if the video game industry doesn't challenge it - and it's not at all clear that they will - then there will be no finding that it is unconstitutional.
So, why wouldn't the game biz challenge the law?
Because it has no effect on their bottom line. The content ratings and parental controls mandated by the law are already in place. While the industry might argue that the state is compelling this sort of speech, it's an argument that exists in a somewhat theoretical realm. In practice, the industry is already meeting the requirements. Game publishers and retailers would rather do business than argue the finer points of constitutional law. Moreover, for the game biz there's a political downside to fighting this part of the law. Doing so would be tantamount to saying, "Yes, we have ratings and parental controls, but we might want to take them away someday." Such a position would not be comforting to parents and would provide ammunition to critics.
The law's mandated advisory council on video game violence enjoys First Amendment rights of its own. People, government bureaucrats included, are free to study and discuss whatever they like. Besides, the video game publishers and retailers will occupy two of the 16 seats on the advisory council.
As to Dr. Rich, while he may have desire to include social science in game ratings, that is not part of the New York law. The statute gives New York no power whatsoever over the ESRB rating process.
And, we note, the announcer gets it completely wrong in his opening when he says that the law includes "tough fines for retailers who sell adult games to kids." There's nothing like that in the legislation.
Adam Thierer lays out his position in detail at the Technology Liberation Front.