Experts: Chris Christie’s Video Game Proposals Would Face Uphill Legal Battles

While New Jersey Governor Chris Christie may not let his children play Call of Duty or any other mature rated games, and even though retailers like GameStop and the ESRB work hand-in-hand to make sure his children can't even buy those games without some sort of identification to prove their age, it hasn't stopped the governor from convening a task force and proposing new laws that would require that parents give permission to buy the games children can't get their hands on.

Do you remember when Republicans didn't believe in burdening people with regulations that are not needed? Yeah, those were the days.

Last Friday, Christie detailed a plan to ban retailers from selling "Mature" rated video games to minors without a parent’s permission. The proposal is part of the governor’s plan to curb gun violence, which also includes a ban on the .50 caliber Barrett rifle and increased penalties for gun trafficking.

"This is just common sense and means that parents and legal guardians are actively engaged and aware of the kinds of games their kids are buying and renting," Christie said last week.

But as points out in an article speaking to multiple legal scholars, Christie's proposals would likely fail a constitutional test anyways. The U.S. Supreme Court has already ruled that video games are a form of speech protected by the First Amendment (Brown v. EMA – 2010).

RuthAnn Robson, a constitutional law professor at the City University of New York School of Law, told the publication that – given the Supreme Court previous ruling on games – Christie’s proposal faces an uphill battle that it will likely lose.

"I don’t see how this one is going to be upheld under the First Amendment," Robson said.

Gene Policinski, executive director of the First Amendment Center, told the publication that New Jersey would have to show there was a compelling need to curtail certain free speech rights to protect children, and that the law would somehow be an effective tool to accomplish that.

"I think it would face an extremely difficult task of being constitutional," Policinski said, adding that the bill Assemblywoman Linda Stender (D-Union) proposed to ban violent video games in public places would face the same challenges.

Another New Jersey lawmaker, Assemblyman Sean Kean (R-Monmouth) introduced a bill earlier in the year that would require retailers to get permission from parents in person before selling a mature-rated game, and fine them $10,000 for a first offense and $20,000 for each subsequent violation. Kean admitted that his bill would face legal challenges, but said such recent incidents as the shootings in Newtown, and Aurora, Colo., might help sway judges' opinions. "I think it’s one of these cases where if we continue to push then maybe we can get some common sense coming out of the court," he said.

But the real irony of this need for a new law is that the level of enforcement by video game retailers is better than any other industry, according to the latest FTC report.

Sean Bersell, a spokesman for the Entertainment Merchants Association points out that recent survey from the Federal Trade Commission, which found that 87 percent of retailers did not allow children to buy mature-rated titles without their parents present or without the young purchaser providing some sort of proof of their age. Bersell also notes that Adults Only rated games are not available at retailers.

"Part of this is, I think, a misunderstanding from policy makers about what’s going on the ground today," he said. "Retailers do have these policies, they are enforcing the policies and they’re doing a very good job at that."


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