[Senate Hearing 109-479]
[From the U.S. Government Publishing Office]
S. Hrg. 109-479
WHAT'S IN A GAME? REGULATION OF VIOLENT VIDEO GAMES AND THE FIRST
AMENDMENT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION,
CIVIL RIGHTS AND PROPERTY RIGHTS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
MARCH 29, 2006
__________
Serial No. J-109-64
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
28-337 WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
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COMMITTEE ON THE JUDICIARY
ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
Michael O'Neill, Chief Counsel and Staff Director
Bruce A. Cohen, Democratic Chief Counsel and Staff Director
------
Subcommittee on the Constitution, Civil Rights and Property Rights
SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma RICHARD J. DURBIN, Illinois
Ajit Pai, Majority Chief Counsel
Robert F. Schiff, Democratic Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Brownback, Hon. Sam, a U.S. Senator from the State of Kansas..... 1
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 3
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin,
prepared statement............................................. 138
WITNESSES
Bickham, David S., Research Scientist, Center on Media and Child
Health, Children's Hospital Boston, Boston, Massachusetts...... 12
Carll, Elizabeth K., Chair, Interactive Media Committee, Media
Psychology Division, American Psychological Association, Long
Island, New York............................................... 7
Johnson, Hon. Jeff, Assistant Majority Leader, Minnesota House of
Representatives, Plymouth, Minnesota........................... 23
Saunders, Kevin W., Professor of Law, Michigan State University,
East Lansing, Michigan......................................... 29
Smith, Paul M., Jenner and Block LLP, Washington, D.C............ 27
Strickland, Steve, Reverend, Fayette County, Alabama............. 5
Vance, Patricia E., President, Entertainment Software Rating
Board, New York, New York...................................... 22
Williams, Dmitri, Assistant Professor, Department of Speech
Communication, University of Illinois at Urbana-Champaign,
Urbana, Illinois............................................... 10
SUBMISSIONS FOR THE RECORD
American Center for Law & Justice, Jay A. Sekulow, Esq., Chief
Counsel, Stuart J. Roth, Esq., Senior Counsel, Colby M. May,
Esq., Director, Washington Office, and Erik Zimmerman, Law
Clerk, Washington, D.C., statement............................. 37
Andersen, Crossan R., President, Video Software Dealers
Association, Encino, California, statement..................... 57
Bach, Robert J., President, Entertainment and Devices Division,
Microsoft Corporation, Redmond, Washington, statement.......... 64
Bickham, David S., Research Scientist, Center on Media and Child
Health, Children's Hospital Boston, Boston, Massachusetts,
statement...................................................... 66
Calvert, Clay, Associate Professor of Communications and Law,
Pennsylvania State University, State College, Pennsylvania,
statement...................................................... 72
Carll, Elizabeth K., Chair, Interactive Media Committee, Media
Psychology Division, American Psychological Association, Long
Island, New York, statement and attachments.................... 79
Florida Police Chiefs Association, Tallahassee, Florida,
resolution..................................................... 91
Fraternal Order of Police, Mark Koch, President, Pensylvania
State Lodge, Games and youth violence--independent research
findings ignored by APA, Harrisburg, Pennsylvania, letter...... 92
Gee, James Paul, Tashia Morgridge Professor of Reading,
University of Wisconsin Madison, Madison, Wisconsin, statement. 100
Goldstein, Jeffrey H., Department of Social & Organizational
Psychology, Utrecht University, The Netherlands, statement..... 110
Horowitz, David, Executive Director of the Media Coalition,
statement...................................................... 127
Interactive Entertainment Merchants Association, Hal Halpin,
President, Wilton, Connecticut, statement...................... 132
Johnson, Hon. Jeff, Assistant Majority Leader, Minnesota House of
Representatives, Plymouth, Minnesota, statement................ 135
Murray, John P., Professor of Developmental Psychology, School of
Family Studies and Human Services, Kansas State University and
Senior Scientist, Visiting Scholar, Center on Media and Child
Health, Children's Hospital Boston, Harvard Medical School,
Boston, Massachusetts, statement and attachment................ 140
Nusbaum, Howard C., Chair, Department of Psychology, University
of Chicago, Chicago, Illinois, statement....................... 143
Saunders, Kevin W., Professor of Law, Michigan State University
College of Law, East Lansing, Michigan, statement.............. 153
Smith, Paul M., Jenner and Block LLP, Washington, D.C., statement 158
Sternheimer, Karen, Sociologist, University of Southern
California, Los Angeles, California, statement................. 171
Strickland, Steve, Reverend, Fayette County, Alabama, statement.. 172
Take-Two Interactive Software, Inc., and Rockstar Games, Inc.,
Paul Eibeler, New York, New York, letter....................... 174
Thierer, Adam D., Senior Fellow and Director, Center for Digital
Media Freedom, Progress & Freedom Foundation, Washington, D.C.,
statement and attachment....................................... 176
Vance, Patricia E., President, Entertainment Software Rating
Board, New York, New York, statement and attachment............ 207
Williams, Dmitri, Assistant Professor, Department of Speech
Communication, University of Illinois at Urbana-Champaign,
Urbana, Illinois, statement.................................... 222
Yee, Hon. Leland Y., Speaker Pro Tempore, Assembly Member,
Twelfth District, Sacramento, California, statement............ 234
WHAT'S IN A GAME? REGULATION OF VIOLENT VIDEO GAMES AND THE FIRST
AMENDMENT
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WEDNESDAY, MARCH 29, 2006
United States Senate,
Subcommittee on the Constitution, Civil Rights and Property
Rights of the Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:10 p.m., in
room SD-226, Dirksen Senate Office Building, Hon. Sam
Brownback, Chairman of the Subcommittee, presiding.
Present: Senators Brownback, Coburn, and Feingold.
OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM
THE STATE OF KANSAS
Chairman Brownback. The hearing will come to order. Thank
you all for joining us here today. I am sorry to be late. We
had a long caucus discussion on immigration, one of the key hot
topics of the day.
I am delighted that the witnesses are here and the people
present, my colleague, Senator Feingold, who is also interested
in this issue, and his colleague, Senator Kohl, has been one of
the leaders on this topic for many years. I follow his lead on
it.
We are here today to discuss the recent developments in
State efforts to restrict the sale of violent video games to
minors. We have a video that we are going to show briefly here
about some of the recent games out, some of the cop-killer
games that I want people to get a good view of what we are
talking about.
Since 2001, four States and two cities have passed laws
restricting minors' access to violent video games. The video
game industry successfully challenged each of these laws in
Federal court. Four district courts and the Seventh and Eighth
Circuit Courts have granted injunctions barring enforcement of
these laws. Despite this, 15 other States have introduced
similar legislation. I believe we have a chart that shows the
States that are proceeding down this line.
The courts' decisions in these cases were primarily based
on the failure of the States to show a compelling State
interest necessary to justify the regulations. That is what we
want to talk about today. Several judges noted past studies
which link media violence to aggressive behavior in children.
They were not convinced, however, that such evidence justified
restrictions on minors' access to violent video games.
Because video games are a relatively new medium, studies
exploring their effects are still developing. Today we have
several witnesses who will discuss recent studies which bolster
the call for increased restrictions.
The First Amendment guarantees the right to free speech.
What too many in the media industry fail to realize is that
this right is not without limits, particularly when it comes to
minors. The Supreme Court in Sable Communications v. FCC held
that, ``The Government may, however, regulate the content of
constitutionally protected speech in order to promote a
compelling interest. We have recognized that there is a
compelling interest in protecting the physical and
psychological well-being of minors.''
In 2002, the Sixth Circuit held that, ``The protections of
the First Amendment have always adapted to the audience
intended for the speech. Specifically, we have recognized
certain speech, while fully protected when directed to adults,
may be restricted when directed toward minors.'' State laws
restricting minors' access to violent games do not impair adult
access. Adults can continue to buy these games for themselves
and can provide them to children. The laws are only aimed at
preventing children from entering stores and purchasing the
games themselves. However, requiring adults to purchase these
games will cause parents to think twice, we hope, about buying
them for their children.
Thanks to new technology, the violence in today's video
games is becoming more graphic, realistic, and barbaric.
Today's video games allow players to decapitate and electrocute
their opponents, beat their victims to death with golf clubs,
pin women against walls with pitchforks, and have sex with
prostitutes before beating them to death.
In Ginsburg v. New York, the Supreme Court upheld a State
law prohibiting the sale of obscene material to minors. The
Court found that two compelling State interests were at work:
First, ``The legislation could properly conclude that
parents and others--teachers, for example--who have the primary
responsibility for children's well-being, are entitled to the
support of laws designed to aid discharge of that
responsibility.''
Second, the State ``has an independent interest in the
well-being of its youth.''
These are important interests that may justify regulation
on the sale of violent video games as well. The State laws
passed to date target only those games which include extreme
violence and gore or target police officers. It is with regard
to these games that the need for parental involvement is so
important.
A number of courts have held that States cannot show a
compelling State interest because scientific studies showing a
link between the games and real-life violence are lacking.
However, many psychologists agree that violent games are
associated with violence in children. The American
Psychological Association issued a resolution in November
calling for a reduction in violence in video games and
interactive media. The APA resolution was a result of research
by its Media Psychology Division, which showed that violent
video games increase aggressive thoughts and behavior among
youth.
Recently, a new group has voiced concern over violent video
games, and that is police officers. A new video game--``25 to
Life'' is the title of the game, shown in a clip that we will
show--was released in January of this year. In ``25 to Life,''
players choose the role of either a police officer or gang
member. If the player chooses to be a gang member, the goal is
to avoid arrest. Players use guns, pipe bombs, tasers, Molotov
cocktails, and broken bottles to torture and kill. This is not
the first cop-killing game to gain national attention.
One of our witnesses today, Steve Strickland, will share
the story of his brother, who, along with two other police
officers, was shot and killed by Alabama teen Devin Moore, an
avid player of ``Grand Theft Auto.'' That game rewards players
for avoiding law enforcement in a quest to steal cars and
perpetrate crime. After his arrest, Moore stated, ``Life is
like a video game. Everybody's got to die sometime.''
The National Law Enforcement Officers Memorial Fund has
also voiced concern about a game that glorifies and rewards the
murder of police officers. They have a petition--I have got it
here to show you--signed by 265,000 voicing the concern of
officers and their families across the country. A number of
representatives of that organization are here today, and I
appreciate your attendance.
At this point, with the indulgence of my colleague, I work
to show a short clip of some of these video games that are new
on the market, and particularly the cop-killing ones. I would
advise those in the audience that these are graphic, they are
violent. If you do not want to watch them, please do not. And I
would not blame you a bit. I viewed them myself, and really,
they turn your stomach. But I want to give you an idea. The
videos you are about to see show clips of three games that are
rated M for mature audience.
Would you please put those videos on? It is about a 4- or
5-minute clip showing several games.
[Video shown.]
Chairman Brownback. Thank you for showing that. My
apologies if it offends people. I think it is important,
though, that we show those.
I hope that this hearing will allow us to discuss the
current state of the law with regard to restrictions on the
sale of these types of video games to children. I will
introduce our witnesses in just a moment after I go to my
colleague for an opening statement.
Senator Feingold?
OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR
FROM THE STATE OF WISCONSIN
Senator Feingold. Thank you, Mr. Chairman. Thank you for
holding this hearing.
The issue of violence in the media, and violent video games
in particular, has raised a lot of concerns for parents and
lawmakers, and I hope this hearing will be a constructive forum
for inquiry and debate in both the scientific and legal issues
related to the regulation of violent video games.
Now, contrary to popular rumor, I am not a big video game
guy, so this is really an opportunity for me to learn about
something I am not terribly familiar with. Politicians do not
usually admit they do not know about something, but I really do
not.
We have all heard about some of the extremely violent video
games on the market today, and we have seen a powerful example
of that today. And let me just say, Mr. Chairman, it enrages me
that such a thing exists, that anyone would want to spend even
1 minute creating such a monstrous thing. I say that as an
individual.
It is natural for parents to worry about whether playing
those games could have detrimental effects on our young people,
so I am interested to hear from the experts today about the
work they have done in this area. While I realize that this
hearing is not intended to address any particular Federal
legislation, there are pending proposals in Congress on this
topic.
As in so many areas, Congress must be careful to consider
the constitutional questions related to any attempt to address
violence in video games. Obviously, we are taking this up as a
part of the Judiciary Committee. We must precisely identify the
problems that we are attempting to solve, and we have to
evaluate the First Amendment implications of any proposed
solutions.
Federal courts, everyone should be aware, have consistently
struck down on First Amendment grounds local and State efforts
to regulate violent video games. It would be an enormous waste
of time and resources to pass a clearly unconstitutional law,
and at the end of the day, passing such a statute does not help
anyone. Nonetheless, I am very interested in learning about
this problem, and I welcome the witnesses, and I look forward
to the testimony.
Thank you, Mr. Chairman.
Chairman Brownback. Thank you, Senator Feingold.
I want to recognize again Senator Kohl's leadership on this
effort for some time, your colleague from Wisconsin.
We will go to the witnesses. I do not know, Senator Coburn,
if you have an opening statement. No opening statement?
Senator Coburn. No.
Chairman Brownback. Let me introduce our first panel. We
have two panels today.
First, Reverend Steve Strickland, whose brother, Arnold
Strickland, was a 25-year veteran of the police force in
Fayette County, Alabama. He was shot and killed, along with two
other offices, in 2004 by Alabama teen Devin Moore, an avid
video game player.
Second is Dr. Elizabeth Carll. She is Chair of the
Interactive Media Committee, which is part of the Media
Psychology Division of the American Psychological Association.
She was actively involved in the APA resolution drafted last
year calling for a reduction in violence in video games. Thank
you very much for joining us, Dr. Carll.
The third witness is Dr. Dmitri Williams, an Assistant
Professor of Speech Communication, University of Illinois at
Urbana-Champaign. Dr. Williams recently led a study on the
effects of violent games and aggression.
Dr. David Bickham is a research scientist at the Center on
Media and Child Health at Harvard Medical School. Dr. Bickham
has spent years studying the effects of all forms of media
violence on children and published numerous articles on the
subject.
I thank the panel for joining us here today. I am looking
forward to your testimony.
As I mentioned at the outset, my intent here is to try to
get and to build a factual basis of why there is a legitimate
State interest in legislating on violence in video games and
their targeting and marketing toward children. Any suggestions
you have to us of Federal legislation would be good as well,
but I am primarily trying to establish a factual record as to
why there is a legitimate State interest in these, contrary
really to how the Federal courts have ruled to date.
Reverend Strickland, I know this must be difficult for you
to be here, but I am delighted that you are willing to join us.
The microphone is yours. We will set the clock at 6 minutes.
That is a guide for you. All of your written testimony will be
submitted into the record, and I would personally prefer most
if you would summarize so we can ask as many questions as
possible.
Reverend Strickland?
STATEMENT OF REVEREND STEVE STRICKLAND, FAYETTE COUNTY, ALABAMA
Rev. Strickland. Mr. Chairman and other distinguished
members of this Committee, my name is Reverend Steve
Strickland. I am one of three brothers of Arnold Strickland,
who was a Fayette, Alabama, police officer, who was murdered by
a teenager on June 7, 2003. I was asked to come and testify by
Senator Brownback's office on how my brother's murder has
affected me and our family, and the two other families who also
lost their loved ones, and our entire community. Thank you for
giving me this opportunity today.
The best way to start is to start on that Saturday morning,
a morning that changed all of our families' lives. Arnold and I
had plans of going fishing that day. I was looking forward to
spending that time with him. We did not get to spend and share
as much time together as we would have liked because of my work
as a minister. There was always something going on to keep us
apart but not on that day. I was already on the water at
daylight and waiting for him to get off work and come join me.
It was going to be a fun day for the both of us. It always was
when we got together. It was about 6:30 when that beautiful
Saturday morning turned into one of the darkest days of my
life.
My nephew Shane, one of Arnold's three sons, called and
asked if I had seen Dad, and I said no, that I was waiting on
his phone call to tell him how to get where I was. He was
supposed to get off at 5 a.m. and should be here any minute.
Shane said something had happened in Fayette and when he found
out he would call me back. It was not 15 minutes when my phone
rang again, and he said with tears in his voice, ``You need to
come home quick.''
I knew at that moment I would never see my brother alive
again. Our fishing days together were over. I sat there and
wept bitterly because I loved my brother deeply. As I got to
the house, there were family members already there along with
police officers. It was total shock and confusion as to what
had happened and what was going on. Being a minister, I deal
with death on a regular basis, but I had not experienced such
trauma as I did that day. In the hours ahead, we learned that
Arnold along with two other men--one being James Crump, a
fellow officer, and the other, Ace Mealer, who was the
dispatcher that night--were also murdered. A young teenage boy
named Devin Moore was responsible for the brutal execution of
the three men that morning.
As days passed and then weeks, months, and now years, our
family is still trying to put our lives back together. No
Saturday will ever be the same for me. No holidays will we ever
enjoy as much as when Arnold was there. But what hurts the most
is to see his grandchildren and knowing how much he loved them.
They will never get to see him again. They will only hear
stories and see pictures of their granddad. And how do you
explain to a child that just last week granddad was there and
now he is gone? And then the parents get to try to explain,
when asked, How did he die and why did he die?
The total impact on our families behind these senseless
killings will never be over. This is the reason I accepted your
invitation to come and speak today, so that maybe other
families will not have to answer those hard questions or go
through what our families are still going through to this day,
trying to still sort it all out. That brings me to the point of
why I am here.
Video games: What are they and how are they being used? The
statement I made earlier about Arnold and the other two being
executed was a very true statement. You see, they were not just
shot. All three received a bullet to the head after they were
on the floor. You have to ask the question: What would bring a
young teenage boy like Devin to this point?
Devin made a statement in a local newspaper 1 day that made
no sense to me whatsoever, until it got in the hands of one of
our attorneys, Jack Thompson, who knows all about what that
statement meant: ``Life is like a video game, everyone has to
die sometime.'' As a minister, I deal with a lot of different
issues and try to stay up and become educated on them, but Jack
opened up a whole other world to me that I did not even know
existed. This is the violent video game world--a world that, as
far as I am concerned, is straight from the pits of Hell.
As I gather more information on the games and the people
who call themselves ``gamers,'' I could see how someone like
Devin, who at 1 minute did not put up any resistance when
arrested for stealing a car or when being booked, to the next
minute, getting my brother's gun from him in the police
station, shooting him, and then killing two other men in a
matter of less than 2 minutes. A game such as ``Grand Theft
Auto: Vice City'' could and did teach him how to do this. As I
watched this game being played on CBS' ``60 Minutes,'' I could
not believe my eyes of how close in comparison this game was to
the actual slaughter of my brother, along with James and Ace.
I had to ask myself the question: Why would someone put
such games on the market and into the hands of teenagers? In
``Grand Theft Auto: Vice City,'' the people we put our faith
and trust in to protect us from harm--the police officers--are
the ones being targeted as the bad guys. Devin Moore practiced
on this game hour after hour to kill our loved ones. It made
him a more effective killer.
In this game, if you kill the police and other innocent
people, you win points. You get extra points for shots to their
heads. When a society gets to the point to where law
enforcement are the bad guys and the thugs and the murderers
are the good guys, our society will take a turn for the worse.
Some have taken that turn. I do not believe most of us are
ready for that. We have an opportunity to do something about
this problem. Why don't we? I am a man of facts. I try to live
my life by them. Jack Thompson and others have facts and
experts to back up what these games are: they are cop-killing
simulators, and they will bring more deaths in the future. Our
loved ones in Fayette are not the only ones to die at the hands
of teens who trained on this game to kill.
Let me remind you if I may: It could be one of your family
members next. I ask that we put all the true facts on the table
about how dangerous all of these murder simulation video games
are.
The primary motivation for what these video game companies
do in making and marketing violent video games to kids is this:
money. Why would these companies want to change things? One
day, we will all stand before the Almighty God and give an
account for what we have done and what we have accomplished,
both good and bad on this Earth.
I ask all of you Senators that we take a good, hard look at
the impact of these games and what they have on our teenagers
and hold everyone accountable for their part. These games in
the wrong hands played long enough are detrimental to our
families, to our friends, and to our entire society.
I thank you for allowing me to share our grief, as well as
our hope for a safer America. Thank you.
[The prepared statement of Rev. Strickland appears as a
submission for the record.]
Chairman Brownback. Thank you, Reverend Strickland. That
was very powerful, and we are sorry about your brother and the
other members, but I do appreciate very much your willingness
to come here and to testify about it. I look forward to having
some questions for you.
Dr. Carll, thank you very much for being here today.
STATEMENT OF ELIZABETH K. CARLL, CHAIR, INTERACTIVE MEDIA
COMMITTEE, MEDIA PSYCHOLOGY DIVISION, AMERICAN PSYCHOLOGICAL
ASSOCIATION, LONG ISLAND, NEW YORK
Ms. Carll. Thank you, Mr. Chairman and distinguished
members of the Committee, for initiating this important hearing
on violence in video games. I am Dr. Elizabeth Carll, the Chair
of the Interactive Media Committee of the Media Psychology
Division of the American Psychological Association.
Chairman Brownback. Pull it up a little bit. You are kind
of hard to hear.
Ms. Carll. The effects of media violence on children has
been a career-long interest with the adoption of the APA
Resolution on Violence in Video Games and Interactive Media
being one of the initiatives when I served as president of the
Media Division of APA. I am also a psychologist in private
practice in Long Island, New York, and I have worked with
children, teens, and families for more than 25 years. The APA
is pleased to participate in today's hearing and thanks Senator
Brownback for his important work on issues surrounding media
and children.
The Interactive Media Committee was formed to facilitate
the implementation of the recommendations of the Resolution on
Violence in Video Games and Interactive Media, which was
adopted by APA in 2005, which I will be discussing. APA's Media
Psychology Division spearheaded the adoption of the APA
resolution with the recognition that there is often a
disconnect between research, legislation, and implementation of
useful recommendations at the community level.
It may be of interest for the Committee to be aware that,
as a result of the APA resolution, a formal dialog with the
Electronic Software Ratings Board has begun to discuss ways in
which the current ratings system may be improved.
It is also important to emphasize that the electronic media
plays an important role in the emotional development, social
behavior, and intellectual functioning of children and youth.
There are many video games that are very helpful for children
to facilitate medical treatment, increase learning, and promote
pro-social behavior. However, there are also video games that
include aggression, violence, and sexualized violence that may
have a negative impact on children. It is this group of video
games that I will be discussing today.
Many of the issues that I will be discussing today were of
concern when I first testified at the 1999 New York State
Legislature's hearings on the effects of violence in
interactive media on children and discussed the unique
characteristics of video games. However, what has changed since
that time has been the rapid growth in the body of research
that continues to point to the detrimental effects of violence
in video games and interactive media on children, as well as
the increasing public concern regarding this issue.
So what are the unique characteristics of video games and
interactive media versus TV and film?
More than four decades of research have revealed that TV
violence has a strong influence on the aggressive behavior of
children and youth. Exposure to violent media increases
feelings of hostility, thoughts about aggression, suspicions
about the motives of others, and demonstrates violence as a
method to deal with conflict.
However, video games and interactive media have certain
qualities that are distinct from passive media, such as TV and
film. For example, video games require active participation
enabling rehearsal and practice of violent acts; include
frequent repetition of acts of violence as part of winning the
game; reward game players for simulated acts of violence, often
the winner of the game is the one who kills and destroys the
most; and enables the identification of the participant with a
violent character while playing video games. All of these
qualities enhance learn.
Therefore, this practice, repetition, identification with a
violent character, and being rewarded for numerous acts of
violence may intensify learning of violence. With the
development of more sophisticated interactive media, the
implications for violent content are of further concern. This
is due to the intensification of more realistic experiences,
which may be even more conducive to increasing aggressive
behavior as compared to passively watching violence on TV and
in films.
What are the effects of exposure of children to violence in
video games?
A comprehensive analysis of violence in interactive video
game research suggests exposure increases aggressive behavior,
aggressive thoughts, angry feelings, physiological arousal, and
decreases helpful behavior.
Studies further suggest that sexualized violence in the
media has been linked to increases in violence toward women,
the acceptance of rape myth, and anti-women attitudes.
Research also suggests that the most popular video games
contain aggressive and violent themes and content. Girls and
boys, men and women, and minorities are depicted in exaggerated
stereotypical ways. Sexual aggression against women, including
assault, rape, and murder, is depicted as humorous and
glamorous and is rewarded.
What are some of the concerns regarding the current rating
system for video games?
Efforts to improve the rating system for video games and
interactive media would be a first step in providing additional
helpful information as to the content of video games.
Currently, the labels are very general, and more content
specificity is needed for parents to make informed decisions
about the video games their children play. For example, are
there only a few depictions of violence, or is it a main theme?
What types of violence are depicted--sports violence, war
violence, or random thrill kill violence? Is violence linked
with negative social consequences or rewarded? The scientific
community should be involved in the development of a more
accurate rating system to better inform parents and consumers.
Recommendations from the APA Resolution on Violence in
Video Games and Interactive Media:
Advocate for the funding to support research on the effects
of violence in video games and media on children, adolescents,
and young adults. APA supports the Children and Media Research
Advancement Act to amend the Public Health Service Act to
authorize funding to establish a program on children and the
media within the Centers for Disease Control and Prevention to
study the role and impact of electronic media in the
development of children.
Recommendation: Teach media literacy to children so they
will also have the ability to critically evaluate interactive
media. This needs to involve educating parents, teachers, and
caregivers.
Encourage the entertainment industry to link violent
behaviors with negative social consequences. Showing violence
without realistic consequences teachers children that violence
is an effective means of resolving conflict; whereas, seeing
pain and suffering as a consequence can inhibit aggressive
behavior.
Develop and disseminate a content-based rating system that
more accurately reflects the content of video games and
interactive media and encourages the distribution and use of
the rating system by the industry, parents, caregivers, and
educational organizations.
The complete text of the APA Resolution on Violence in
Video Games and Interactive Media is available online.
I would like to thank the Committee for their interest in
this important issue and Senator Brownback for his continued
leadership in this area.
[The prepared statement of Ms. Carll appears as a
submission for the record.]
Senator Brownback. Thank you, Dr. Carll, and APA is going
to be critical in its findings if Federal court should rule the
other way, that there isn't a legitimate State interest. Your
organization is going to be one of the critical ones to say
there is a legitimate State interest, and I appreciate the
resolution. I hope you can keep moving forward with it.
Dr. Williams?
STATEMENT OF DMITRI WILLIAMS, ASSISTANT PROFESSOR OF SPEECH
COMMUNICATION, UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN,
URBANA, ILLINOIS
Mr. Williams. Thank you, Mr. Chairman, Senator Feingold,
for the opportunity to testify here today.
I am here today in my capacity as a media researcher and
social psychologist to talk about the science of media effects.
Like my colleagues here, I have read the research, and like
them, I strongly support media literacy for both adolescents
and parents. Like them, I have come to the conclusion that
televised violence likely does lead to increases in aggression
among some adolescents, most often the ones in at-risk
categories. I have no issue with that body of research.
The question is whether the same thing holds true with the
work on video games, violent and otherwise. My message to you
here today is that we do not know yet. People use words like
``links'' and ``relationships,'' which imply cause and effect,
but that is not well established yet. Based on what has been
published so far, I do not share my colleagues' certainty at
all, and I would like to explain specifically why.
The first reason is that we have been studying fish out of
water. Gaming is a highly social activity, and we know from
media research dating back to at least the 1930's that social
context can change media effects drastically. Some games have
vibrant social communities, and some have none. A massively
multi-player game like ``World of Warcraft'' is as unlike a
game like ``Doom'' as ``Sesame Street'' is from ``The
Sopranos.'' The games are often apples and oranges, and many
researchers do not know one from another. Plainly put, games
are not television.
I talk to gamers every day. They say things like, ``GLA for
the win'' and ``Minus 50 DKP'' and other arcane slogans. Unless
you enter their very social world, you will not understand what
meanings they are making.
Bringing isolated people into a lab does not gain us much
because that is not how people play, especially in the Internet
era. When you include the social side, you quickly find large
effects, both good and bad. I have found and published both
good and bad.
The second point is that we do not know if we can trust a
lot of the existing research because of how short it is. If I
told you that we had a study that showed games causing
aggression and that that study lasted 30 minutes, you would
have a hard time then concluding that games would cause
aggression over an hour or a week or a year. For that you would
need a study that lasted an hour, a week, or a year. I am not
sure that you realize that all you have been given are these
short studies. They usually last between 10 and 30 minutes, and
yet we are all talking about years and life spans.
The other big problem is that with a study that short, you
might be measuring excitement, not violence. That would be
arousal, not aggression. You could effectively get the same
effects by having them throw a Frisbee.
In fact, when the studies go longer, it is possible that
the effects might fade away. We do not have a lot of these long
studies, so the jury is really still out, but we do have two
studies of one violent game in particular--``Mortal Kombat.''
In the first study, the players played for 10 minutes, and
there were large effects. In the second study, the players
continued playing for 75 minutes, and the effects were nearly
gone. That means there is a very good chance they fade away or
were not there in the first place. It is possible that arousal
was replaced with boredom or fatigue in those studies.
Last year, I published the longest study to date
investigating game violence. I had players play a game over a
month and not in a laboratory. The average play time in my
sample was 56 hours, which is the longest research exposure for
a game ever. And after 56 hours, I found nothing. I was
surprised--no increases in violence, aggressive cognitions,
anything.
Let me be clear. I am not suggesting that this study proves
that games do not cause violence. A different game, a different
sample, different measures might have found something
different. I also cannot say what 2 months would do. I am not
willing to make that leap the way that others are willing to
do.
But when you look at the length of these studies and you
consider results like mine, you have to become at least a
little skeptical of the strong claims that are made, the strong
causal claims.
I know that one of the reasons to hold this hearing is to
find out why the State laws keep getting defeated. Let me
explain why the laws are losing on the science. It is because
the legislators are only talking and listening to people who
agree with them, when, in fact, there is significant
disagreement within academia.
I have read the legislative bibliography for the current
California case, and I have seen materials from the State which
claim that they have read all the applicable research. But they
did not. There are studies that are missing. There are entire
methods which do not appear on their list. The 75-minute study
is there. My 1-month study is not there. There are entire
research associations that were not consulted, two which
specialize in media, which I belong to, and one which
specializes in game research. Not consulted. And the entire
body of anthropological work is completely ignore.
Those decisions represent politics, not science. And if you
read the courts' opinions, you can see that the judges' can
tell.
I know that the CAMRA Act is also making its way through
Congress, so here is a place where I think we have some common
ground. We really do need more and better research, and
certainly better media literacy. I support CAMRA, but let me
offer some suggestions of how it can get rid of objections like
mine.
First, do not ask the Centers for Disease Control to
administer studies of media. Media is not a controlled
substance. If you want media researchers to respect it,
consider the National Science Foundation.
Second, amend the Act to include the social context of
media use. I have read the Act's language and it is missing.
More studies of college sophomores playing alone are not going
to help anymore. We need studies of all ages and of how they
actually play, which means studies of gamers playing with their
friends, playing with family, playing with strangers, online at
home, in Internet cafes, at school, and at work. The networked
world of play is the future, and it is also the future,
subsequently, of research.
And, last, emphasize long-term studies, controlled, if
possible. Ten- and 30-minute studies are not sufficient for
science to conclude long-term effects, and they should not be
enough for policymakers either.
Senators, thank you again for the opportunity to speak
today.
[The prepared statement of Mr. Williams appears as a
submission for the record.]
Chairman Brownback. Thank you, Dr. Williams, and I look
forward to some discussion and the question time period. Thank
you.
Dr. Bickham?
STATEMENT OF DAVID S. BICKHAM, RESEARCH SCIENTIST, CENTER ON
MEDIA AND CHILD HEALTH, CHILDREN'S HOSPITAL BOSTON, BOSTON,
MASSACHUSETTS
Mr. Bickham. Thank you very much. Thank you for the
opportunity to testify today. My name is David Bickham, and I
am a research scientist at the Center on Media and Child Health
located at Children's Hospital Boston and affiliated with
Harvard Medical School and Harvard School of Public Health. The
center is an interdisciplinary group of pediatricians,
psychologists, social scientists, and child development experts
with the mission to research and respond to the effects of
media on the physical, mental, and social health of children.
My own research has been published in top health and psychology
journals. I am here today to review the scientific evidence on
video games and the concern that these games contribute to
children's violent thoughts and behaviors.
While most the research on video game violence is
relatively new, we must consider it within the broader field of
television, film, and visual violence, and I disagree a little
with Dr. Williams on this point. I see television--we
understand television teaches kids by them viewing the
violence, seeing it rewarded, and then incorporating that into
their own behavior. Video games go one step further and
actually allow them to imitate it and do it onscreen
themselves. So I see that television provides a very good basis
for understanding the effects of video game violence because it
is also a visual medium.
There are five decades of research that show a link between
violent media and aggression the Tribunal is based on a sound
theoretical and empirical understanding of learning aggression
and social cognition. A core ongoing project at the Center on
Media and Child Health is the consolidation of all existing
research on media effects into one publicly available data
base. After 3 years of this work, the data base includes over
1,200 research reports investigating the effects of media
violence.
Now, if you take any of these studies alone, we must
realize that no study is perfect. Even the best study design
can be criticized for limitation of its methods. All methods
have weaknesses. Taken together, however, each study provides a
piece of a single puzzle that all interlock to reveal one
picture. In this case, the picture is clear: Using violent
media increases children's aggressive thoughts, attitudes, and
behaviors.
Beyond violent television and film, there are reasons to
believe that violent video games have stronger effects. We know
that all media teach, and they especially teach young children.
And they teach whether it is by the design of the media or just
simply by default. Video games are exceptional teaching tools.
They incorporate many techniques that promote learning in their
users. They are interactive. They are involving. They require
almost complete attention. And they reward success with points
and new challenges. Scientists have exposed children to violent
video games in laboratories and found that they become more
aggressive than children who played non-violent games. Using
survey studies, scientists have found that, even after
controlling for complex environmental and individual
characteristics that are also linked with aggression, playing
violent video games is related to children's aggression
additionally.
Overall, we should not be surprised by the scientific
evidence illustrating that when children play games that reward
and encourage violent behavior onscreen, they become more
violent.
In rare situations, violence from media is directly
imitated. But the most pervasive effects are more subtle and
come from repeated viewings and playings. Violent video games
present a world where violence is justified, it is rewarded,
and it is often the only way to win the game. Exposure to this
world primes children for hostile thoughts and behaviors
immediately after playing a game. They begin to think and act
aggressively and solve problems with violence.
Regardless of exactly how this process happens, the real
question is about risk. Playing violent video games is one of a
number of factors in a child's life that increases that child's
risk of behaving aggressively.
Before suggesting some strategies for mitigating the
effects of violent video games, I would like to clarify two
common misconceptions about research on media violence.
First, scientific research does not claim that media
violence is the sole cause of human aggression. Nor does it
claim that media violence is the original or most important
cause. Violent media is, however, a substantial, pervasive, and
controllable contributor to children's violent behaviors. The
aspect of controllable is very important because other factors
that contribute to aggression, such as heredity, family
environment, racism, culture, all of these things are
difficult, if not impossible, to change.
Second, this research does not show that there is something
inherently dangerous about video games. Many non-violent
puzzle-based and educational games have been shown to increase
children's mental abilities and teach academic lessons.
Children will learn what we teach them. If we provide positive,
healthy messages the resulting behaviors will be positive and
healthy as well.
Further research in this area can inform us in the most
effective intervention strategies. We need to know more about
what factors increase and decrease a child's risk for the
effects of violent video games. Through this research, we can
develop prevention measures for all children and specifically
target higher-risk children for intervention. We need to extend
the research that ties violent video games with real-life
violence. There is some anecdotal evidence that many school
shooters have been heavy users of violent video games. Could
violent video game play have been a trigger that switched a
troubled child from thoughts of revenge to actual behavior? We
do not know. And given the nature of the crime, we will
probably never be able to study this directly. But we can
examine the relationship between violent video games and
precursors of school shootings, including the most common, much
more common behaviors of bullying and weapon carrying. A long-
term study, preferably one that is nationally representative,
is essential to understand these and other effects of violent
video games.
Media literacy programs where children learn critical
thinking skills can help immunize them against the effects of
violent media. At the Center on Media and Child Health, we are
currently evaluating the effectiveness of a school-based media
literacy program. Our preliminary evidence shows that children
start to change their understanding of media violence after a
single class session. Additional research is necessary so that
we can create the most effective programs possible.
To date, the evidence about video games may not be perfect.
In social science, you rarely actually ever prove anything. But
I think we are at a point when we need to act on what we know.
Given the evidence that we have, are we actually willing to
risk the possible and dramatic long-term effects that playing
these games could have on our children's health? As caretakers
of the next generation, we have a responsibility to provide
children with a safe environment in which to grow, develop and
learn. Research has shown the media children use have real
effects on their lives. In the Information Age, media must be
understood as a powerful, nearly universal environmental health
influence. We ensure the safety of what we feed children's
bodies. We owe it to their future and the future of our society
to ensure the safety of what we feed their minds.
Thank you.
[The prepared statement of Mr. Bickham appears as a
submission for the record.]
Chairman Brownback. Thank you, Dr. Bickham.
I am going to go to Senator Coburn first for questions. We
will run the clock at 6 minutes, if that is OK with my
colleagues, and then I will go to Senator Feingold. Senator
Coburn has another meeting he has to attend.
Senator Coburn. Thank you, Mr. Chairman, and thank you,
Senator Feingold, for the deference to ask questions first.
Is there any doubt in any of your minds that you can
positively influence behavior in a positive way with video
games? In other words, if you want to achieve a certain goal,
you can design a video game to increase the propensity to
establish that behavior?
Mr. Bickham. I will take that. I think there is some doubt
because there is not a lot of research on it. There is a lot of
research on educational television that shows when it is well
designed, it can have long-term effects, including positive--
kids who watch more ``Sesame Street'' when they are about 4
have higher grades in high school. So there is some evidence
base there. And because of the potential that video games have
for how good teachers they are, I think that a well-designed, a
well--a game that is well designed but also has a lot of
research put into it at the front end as they are developing it
could lead to very dramatic positive effects if it is designed
that way.
I would go a little further and say that you would have to
take violence completely out of those games because those
effects are so well documented that I think it would have those
as well, so we would have to be very careful to take that out
of any of those types of games.
Senator Coburn. Dr. Carll? Dr. Williams?
Ms. Carll. I would certainly agree that there are many
games that are not violent and destructive and there are video
games that are being developed for children who have various
illnesses to help them deal with those. So there are a lot of
positive things developing, and learning theory is a neutral
theory. You can learn negative behaviors and you can learn
positive behaviors.
Senator Coburn. But your general inclination is that that
is probably so, that you can learn a positive behavior from a
well-designed video game.
Ms. Carll. Yes, if it has positive content.
Senator Coburn. Yes.
Mr. Williams. This is a place where our colleagues in the
field of education have actually done probably more extensive
research than many of us in social psych and the effects side
have, especially some work for some people up in Wisconsin,
actually. At UW, the Education Department there has a group of
researchers who have actually been looking at long-term
learning effects, and here is a place where they have us at a
disadvantage because rather than doing 10-minute or 20-minute
or 30-minute studies, they can look at things like test scores
over the course of a semester, and they could taken games, some
with violence, some without, games like ``Civilization'' where
you are building up societies and attacking and defending from
others, following the course of history, and you can see
dramatic improvement in learning.
It is an area where we do not have the same level of
evidence to make the same kind of conclusions.
Senator Coburn. Dr. Williams, in your 56-hour study, how
long was your followup period on that, post-follow-up? have you
had a continuing post-follow-up on that study?
Mr. Williams. No. For reasons of compliance with my local
IRB, this was a 1 month-off study, also for resources. I did a
pre-test. They played the game. There was a post-test
immediately after, and that is it. Also because of anonymity, I
cannot contact them. They are gone.
Senator Coburn. So you are basing your testimony on a study
you had and you have no followup?
Mr. Williams. As I said, I am only comfortable talking
about what happened over the course of the month. I do not want
to make conclusions longer--
Senator Coburn. Which means if we have no followup, we know
nothing about the results of that exposure--
Mr. Williams. We know nothing about--
Senator Coburn [continuing]. Because it is not immediate--
Mr. Williams [continuing]. It after a month, that is right.
Senator Coburn. That is right, OK.
Mr. Williams. That is the longest to date.
Senator Coburn. Let me ask you a question. At any time in
the course of your studies have you received any funding,
directly or indirectly, from either a video game company, a
manufacturer, or somebody that is a principal in that through
an indirect or direct source?
Mr. Williams. For research?
Senator Coburn. Yes.
Mr. Williams. When I was completing my dissertation work, I
had to get copies of the game that I used as a stimulus
somehow, and I did not have the resources to do it. But for
legal reasons, the publisher of the game did not want to be
associated with it, so they gave me copies as a donation, wiped
their hands clean. They did not want to be in possession in
case I did find something negative. It turns out that I did
not. But for that reason I actually have no relationship with
the game industry.
Senator Coburn. OK. Thank you.
I am amazed that we do not sit back and look at common
sense on this. I mean, we know what television does. You know,
it is pretty firm, the conclusions both the psychologists, the
pediatricians, the social psychologists have come to in terms
of the influence of violence through television. And it seems
to me strange that we would not start with the concept that
probably there is an impact and now let us go prove it to see
if there is since we know through other video forms that there
is an impact.
Mr. Chairman, I would just relate, I have taken care of
kids in my practice for 25 years, and I can tell you, I have
seen the effects, both negatively and positively, of video
games. And my partners see the effects. We actually had a
shooting in Fort Gibson, Oklahoma, at one time, and much of
that was related--not just to video games, but also to the
environment that a child was in.
So I would hope that we and the Congress would start with
the precept of what we do know about video presentation of
violence and children and work from that, and I would agree
that we should certainly be in the position to fund some long-
term studies.
In the meantime, we ought to do whatever we can to limit
the violent exposure of these games to children, because there
is nothing positive. There may not be anything negative, but
there is certainly nothing positive from these games.
And with that, I yield back my time.
Chairman Brownback. Thank you very much.
Senator Feingold?
Senator Feingold. Thank you, Mr. Chairman.
Mr. Chairman, I have received a number of additional
statements and testimony for this hearing, and I would ask that
they be placed in the record.
Chairman Brownback. Without objection.
Senator Feingold. Thank you, Mr. Chairman.
Reverend Strickland, thank you for being here today. I am
sure it was not an easy thing for you to do this, and I want
you to know that I appreciate your willingness to share your
experience with us.
This question is for the three researchers on the panel. I
understand from the testimony that quite a bit of research has
been done regarding the effects of television violence on the
behavior of children, but far less has been done, as has been
indicated, specifically on the effects on violent video games.
Obviously, Dr. Williams had already alluded to this.
But each of you, I would like you to comment on do you
think we need more research in this area. Dr. Carll?
Ms. Carll. Oh, absolutely. That is why we support the CAMRA
Act. We certainly need more research on longer-term and we need
more research in many of the things that I think Dr. Williams
also had said, as well as Dr. Bickham, particularly in Dr.
Williams' because his is a multi-player format, which is very
different than some of the video games that have been evaluated
before, which involves cooperation and various other aspects.
So certainly the importance of research is there.
Senator Feingold. Dr. Williams, I think I know what you are
going to say, but go ahead.
Mr. Williams. I agree with myself, yes.
[Laughter.]
Senator Feingold. Very eloquently stated.
Mr. Williams. Thank you.
To elaborate briefly, there are some initial pieces of
research coming out that you find that there are differences
when people are playing by themselves, with other people,
against other people, with teammates, and I think that is the
direction we ought to be heading, because those are the ways
that games are actually played. It could very well be that that
shows that things are worse, not better, but these are the
mediating factors that we would like to understand better. Me
particularly, I would focus on the social. This is a huge
phenomenon, especially playing online. Millions of people
playing together creating online communities, and we know
almost nothing about it.
Senator Feingold. Dr. Bickham?
Mr. Bickham. Yes, surprisingly, I also agree there needs to
be more research. I think, however, there is enough research
now, I think, as I said, that we can act. You know, it is at a
point where in social science we do not prove things. We always
work with limited information. We always work with incomplete
knowledge. We could fund this forever. We could do this
research forever. These games change every day. We have to make
a decision at some point: Do we know enough now, are we willing
to step out and say, yes, we want to protect children from
something, even if we are not completely 100 percent sure? Even
if it is only something that accounts for 15 or 20 percent of
all the crime, are we willing to go out on the research that we
have and make some interventions to protect kids from them?
Senator Feingold. I think that is a fair point. It is hard
to know at what point you have done enough, and you cannot make
it impossible for you to go forward and do anything about a
problem. But I want to go back to Professor Williams with
regard to this. Say a little bit more how a researcher goes
about evaluating whether a particular form of media, such as
video games, might cause people to engage in aggressive
behavior. It strikes me as a very difficult hypothesis to test.
And Dr. Bickham just talked about knowing that in 15, 20
percent of the cases this is the case--I did not hear you say
that in your testimony. It did not seem like you necessarily
thought this was true, any proof that it is true in any case.
So how do you separate these things out in terms of
methodology?
Mr. Williams. I certainly agree with Dr. Bickham that you
need multiple methods to really understand something. It would
be nice to also have some sociological and ethnographic work
done to actually talk to players, as revolutionary a concept as
that may sound, actually go and see what meanings they are
making out of it. You get a very different story than you do
with a study.
To track someone over the long term is, as you say, a
pretty difficult thing. It is something that is resource-
intensive, and in the communication area we are often having a
hard time getting funding for it to do these long-term studies.
And I think we are all on the panel in agreement that it would
be a useful contribution to the literature and to our
understanding.
My contention is that 30 minutes, that does not tell us
much about truly long-term things, and here is a point of
significant difference with the television literature, where
there are truly longitudinal research studies, and I started my
testimony by saying that I have no quibble with them. I am
sold. But that is where you have people and you can follow them
over 25 years. I do not think we need to do 25 years of
research, but I think that going past 30 minutes into days,
weeks, months gets a little more at the reasonableness factor
to see when these things might stick, because some of the
research that I talked about suggested that it might not be
sticking, it might fade off. It might work just like television
does. It might be worse. But until you show it, that is very
different than saying that you know about it.
Senator Feingold. How do you deal with the problem that the
same person may be watching other kinds of media that are
disturbing? And how do you separate that out?
Mr. Williams. It is a very difficult research problem. It
adds a significant amount of noise. The one thing you can try
to do is establish a control group of people who are not
engaging in your kind of media, but they are going to be
engaging in some other kind of media. So what you have to do is
find some kind of game that is significantly different than the
media universe they might consume on their own, or you take
some measure after, post hoc to find out what they did and
contrast it with it.
It is a thorny issue, and it is one of the reasons why the
television research, the long-term one, did not have a control
group. The 1 month I had is tough enough to do, and without
more resources it becomes even harder.
Senator Feingold. Dr. Carll, I want to followup on
something that you touched on in your testimony. Video games
along with other forms of media can obviously deliver many
messages to children that you and I might not think are the
best messages to send. Has work been done to evaluate the
effects on children of other aspects of video games besides
violence that you mentioned in your testimony, that is, let's
say, based on gender or racial stereotypes or glorifying sexual
aggression against women?
Ms. Carll. Yes, there have been many studies in that area.
In fact, the list that was attached to the testimony we
submitted includes that. But, yes, there are stereotypes, and
many of the video games, unfortunately, look toward those
stereotypes and depict those, and anyone playing that would
have exaggerated aspects in playing that as far as how people
are depicted, whether it is women, children, boys, men,
minorities in particular. So, yes, other aspects besides
violence have been researched.
Senator Feingold. Thank you, Mr. Chairman.
Chairman Brownback. Thank you, Senator Feingold.
I want to ask first submission to the record of a statement
by Dr. Leland Yee, Speaker Pro Tem of the California State
Assembly; also a statement in by Dr. John Murray, Professor,
Department of Psychology, Kent State University; a resolution
by the Florida Police Chiefs Association; and from the
Pennsylvania Fraternal Order of Police--the police ones
particularly regarding the video gam ``25 to Life'' that we
showed. Those will be submitted into the record.
Reverend Strickland, thank you again for being here, and I
appreciate your poignant testimony about the impact and the
impact on your family in particular. Have you in your work as a
minister worked with families where the child--or with children
that have been involved in video games, violent video games? Do
you have more experience in this area?
Rev. Strickland. No, sir, I do not. Like I said, it is a
whole new world to me. I deal mainly with alcohol and drugs
more than the videos, but the videos are becoming very evident
within our communities. I mean, when all this came about in
2003, I had many mothers that would come up to me after it hit
the media about the video games and tell me that they did not
realize that their children--or what their children was
playing. Many parents, you know, you stick a video in, you go
buy a video game and let the kids play, and you go do what you
want to do. And, unfortunately, they did not censor these games
before they started letting them play, and they would come up
and tell me and say, ``When I watched the games of what they
were, I actually took them out and throwed them in the garbage
can. I did not realize that they were this violent.''
So it is a whole new area for me. It is one that I am
learning and trying to get educated on, on how to handle it,
because I feel that it will affect our younger generation.
Chairman Brownback. Did you see any quotes from Devin
Moore's parents about his playing of these violent video games?
Or do you know anything about that situation?
Rev. Strickland. Nothing other than we have facts that he
did play them. Devin came from a very difficult background. He
has had a mom and a dad that was not together, or whatever. His
upbringing was not the best in the world. But his mom did say
that she was with him when he purchased the video games
themselves at an age that he wasn't supposed to be able to
purchase them.
Chairman Brownback. But Devin purchased the games himself?
Rev. Strickland. Right.
Chairman Brownback. Even though it was not age-appropriate
for him to purchase it?
Rev. Strickland. Right.
Chairman Brownback. I want to go to the researchers on this
point. I have been around this topic awhile. Since being in the
Senate, I have been around this topic, and they just keep
getting more graphic, more violent, more horrific. I mean, I
long for the time in 1997, I think, when I started these
hearings, because the technology was not as good. I am
imagining the day soon where you stand in the video room as the
first-person killer and you are surrounded by sound and by
screens and shooting in a very realistic setting. As a matter
of fact, I am sure somebody technologically could do it today.
It is whether they can make any money out of it probably is the
question. And you all know we use these video settings to train
our military with. I have been in simulators at Fort Riley in
Kansas where we use a video simulator to train, and we retrain
and retrain and retrain. And so that when the person gets in
the situation, they do not have to think. They act. And we can
also overcome the natural tendency in people to not want to
shoot somebody else. It is actually more natural within us not
to shoot somebody else, but in military settings, in
particular, OK, we are trying to force people to overcome that.
And so part of it is this, OK, we are going to put you in a
simulator and simulate and simulate and simulate so that when
you get in that situation you are not thinking, you are just
shooting. And I cannot help but to think that that flows right
into this situation here when we purposely do it in that
setting and when it gets so much more graphic, so much more
violent and realistic.
Let me ask you, the researchers in particular, what if we
require the video game manufacturers before they released an M-
rated game that they had to do some sort of behavioral study
like what you have done and we try to build the prototype of
what it is, that we require that prior to the game being
released. Would that be useful information to help build up the
body of knowledge that you all say is lacking? Dr. Carll?
Ms. Carll. I would request that certainly various kinds of
research would be helpful, but it should not be conducted by
the entertainment industry but a neutral organization who does
not have a vested interest in it.
Chairman Brownback. Amen to that. I agree with you on that.
But what about having that information by a neutral group?
Ms. Carll. That may be helpful. I think what would be even
more helpful, because that is something so far down the road,
would be information in a rating system that would be helpful
for parents to be more specific as to the content--
Chairman Brownback. That is what you mentioned in your
testimony.
Ms. Carll. Right. And that could be more easily done than
what you are describing. It would be very helpful for parents
to know if violence is rewarded and does it have negative
social consequences or is the purpose of the game thrill kill
to see how many people you can kill for the sake of killing
them. That is a different kind of game than, for instance, the
one that was used by Dr. Williams, which was not antisocial in
that sense.
So different kinds of games have different outcomes, and I
certainly agree that there is a diversity of games and we need
to look at research in that area. But those kinds of games
which have those negative qualities are likely very different
from some of those with more positive ones, and, yes, so having
more research in that area would be helpful as well. But having
information for parents to know what kind of games their kids
are playing is even more important.
Chairman Brownback. I agree with that.
Dr. Williams, what do you think about that, requiring a
study for M-rated games released?
Mr. Williams. Well, here we cross into the First Amendment
territory as much as the research territory, and the impulse to
in some way restrict or measure something before it is released
to the general public falls way outside of my purview. And as a
citizen, honestly it creeps me out a little bit. As a
researcher, sure, I would love to have access to those kinds of
materials. I can also tell you that we take a really, really
long time with things, so I don't know how feasible that would
be. Would it be nice to have some kind of better description or
content knowing what is out there to give parents more
information? I don't think anybody objects to that. You know,
you will hear from the ESRB rep in the second panel, and you
can figure out whether or not you think they do a good job or
not.
I have to say in passing that I spent all last week at the
game developer conference in San Jose talking with game
developers, and it might surprise you to know that they have a
very contentious relationship with ESRB and find them very
adversarial. So ESRB obviously feels besieged from both sides.
Chairman Brownback. OK. I want to thank the panel very
much. If you have additional statements to put in, please feel
free to do so.
We have a second panel I want to call up. The first witness
on the second panel is Pat Vance, President, Entertainment
Software Rating Board. The ESRB provides the ratings for video
games.
We have Representative Jeff Johnson, Assistant Majority
Leader, Minnesota House of Representatives. Representative
Johnson drafted a video game bill which is currently pending
before the Minnesota Legislature.
Paul Smith is a partner at Jenner and Block in Washington,
D.C. He has represented the video game industry in a number of
its suits challenging State restrictions on the sale of violent
games to minors.
And Professor Kevin Saunders, a law professor at Michigan
State University, teaches a course on constitutional law and
the First Amendment. He has been involved in drafting a number
of the State laws.
Thank you all very much for being here. Ms. Vance, I want
to open up with you. Welcome. We will run the time block at
about 6 minutes.
STATEMENT OF PATRICIA E. VANCE, PRESIDENT, ENTERTAINMENT
SOFTWARE RATING BOARD, NEW YORK, NEW YORK
Ms. Vance. Thank you, Chairman Brownback, Ranking Member
Feingold, and the entire Subcommittee for the invitation to
appear today. I would like to take this opportunity to provide
greater insight into how ESRB ratings currently empower parents
to make informed decisions about the games their children play.
I request that my statements, both oral and written, along with
the instructive appendices, be made a part of the hearing
record.
Chairman Brownback. Without objection.
Ms. Vance. Thank you.
Virtually every computer and video game sold in the U.S.
today carries an ESRB rating, and nearly all major retailers
choose to only stock games that have been rated by our
organization. This voluntary commitment from the video game
industry and the retail community ensures that consumers have
accurate and reliable information to help them decide which
games are appropriate for themselves, their children, and other
family members. Today, the vast majority of parents use and
trust ESRB ratings in helping them make those decisions.
The two-part ESRB rating system now consists of six age-
based rating categories appearing on the front and back of each
game package and 32 different content descriptors that appear
on the back prominently displayed next to the rating category
which indicate elements in a game that may have triggered a
rating or may be of concern to parents. ESRB ratings are based
on the consensus of adult raters who have no ties to the game
industry and work on a part-time basis. One of ESRB's key
responsibilities is to ensure that these raters review all
pertinent game content, including the most extreme, no matter
how hard it might be to find when playing the game.
Many of today's games can take over 50 hours to play all
the way through, so it is critical that companies fully
disclose to the ESRB in detail exactly what is in the game
across a broad range of categories, including but not limited
to violence, sex, language, use of a controlled substance, and
gambling. If a company does not fully disclose all the game's
content to the ESRB, recent enhancements to our enforcement
system allow for the imposition of fines up to $1 million. The
power to impose substantial penalties which may include the
suspension of rating services and corrective actions that can
result in a full product recall serve as a tremendous
disincentive for any company entertaining the notion of
withholding pertinent content from the ESRB.
As the FTC has previously noted, the ESRB enforcement
system is unique in its scope and severity among entertainment
rating systems. While games that are rated for mature audiences
tend to get a disproportionately high amount of media
attention, the reality is that, by far, the largest number of
titles rated by the ESRB year in and year out receive a rating
of ``E'' for ``Everyone,'' and only about 12 percent of games
receive an M rating for players 17 and older. Furthermore, last
year, not one mature-rated game made it onto the top ten seller
list. These facts belie the common misperception that all games
are created and intended for children. The fact is that the
average age of a gamer today is 30. So it is not surprising
that video games, just like movies and TV shows, are created
for all ages. The ratings help parent discern which games are
right for their children and which ones are not, and
increasingly, parents have come to rely on them.
A recent study by Peter Hart Research found that 83 percent
of parents with children who play games are aware of the ESRB
ratings and 74 percent use them regularly when buying games.
While that is pretty good, we continue to put significant
resources into aggressive educational initiatives to remind and
encourage parents to use the ratings every time they buy a
game.
Moreover, for the ratings to be reliable, they must meet
parents' expectations, and to that end, the ESRB commissioned
separate research annually to test the level of agreement with
our rating assignments among parents in ten different markets
across the U.S. In the study, parents view excerpts from a
large number of randomly selected games across all ESRB rating
categories, and the results show that parents agree with ESRB
ratings 82 percent of the time or find them too strict another
5 percent of the time. Given the broad diversity of values,
tastes, and opinions in our country, this is a very high level
of agreement, and it is a testament to the effectiveness of the
system we use to assign ratings.
Some would argue that the ratings do not work because they
do not place restrictions on what kids can buy. To address that
point, it is worth mentioning that the FTC has reported that
adults are involved in the purchase of a video game 83 percent
of the time. Similar studies conducted by the industry have
found that a parent or adult is involved 92 percent of the
time. Simply put, parents are the gatekeepers, as well they
should be, when it comes to which games come into the home.
I would like to close today by saying simply that nobody
takes these issues more seriously than we do. ESRB values
immensely the trust that millions of parents have placed in our
ratings, and we fiercely intend to preserve that trust. The
vast majority of parents can and do make sensible choices about
the games their children play, and our ratings consistently
play a critical role in making those choices.
Thank you, and I look forward to answering any questions
that you may have.
[The prepared statement of Ms. Vance appears as a
submission for the record.]
Chairman Brownback. Thank you, Ms. Vance.
Representative Johnson?
STATEMENT OF HON. JEFF JOHNSON, ASSISTANT MAJORITY LEADER,
MINNESOTA HOUSE OF REPRESENTATIVES
Representative Johnson. Thank you, Mr. Chairman and Senator
Feingold. My name is Jeff Johnson. I am a third-term Republican
member of the Minnesota House of Representatives. I am
Assistant Majority Leader and Chairman of the House Civil Law
Committee. But more importantly, I am the father of two little
boys who would play video games 12 hours a day if we did not
limit them to about 3 hours a week. And I should add that I am
not opposed to video games. In fact, I enjoy those 3 hours on
the weekends with one of my sons playing football or soccer or
some other video game, unless one of is naughty and we have it
taken away from us. But I do not believe that video games are
inherently bad.
I do believe that some are, though, and I am the House
author of a bill in Minnesota that takes a rather modest step
towards restricting access by our kids to extremely violent or
sexually explicit video games. And this is a bipartisan effort.
Senator Sandy Pappas is a Democrat from St. Paul. She has
already passed this bill off the Senate floor, and I am hopeful
to do the same in the House within the next few weeks.
The bill is really very simple. It is very narrowly
tailored. Frankly, it is probably more narrowly tailored than I
would like, but because of the constitutional issues, this is
what we thought we ought to do. And what it says is that
children under 17 cannot rent or buy video games that are rated
either M or AO by the ESRB. If they attempt to do so, they are
subject to a $25 civil penalty or civil fine. Our bill also
requires that each retailer of these games in Minnesota has to
post a clearly visible sign regarding the restriction. That is
the entire bill.
My intent with this legislation is not to make criminals
out of kids or to raise money $25 at a time for the State of
Minnesota, and, frankly, I do not expect that would happen even
if we are able to pass this bill and make it law. What I am
hopeful for is that by passing the new law we may get the
attention of at least a few of the painfully oblivious parents
in our State who are really paying absolutely no attention to
some of the garbage that their little kids are playing in their
own homes on their video game machines.
As I mentioned, I have two little boys at home, and our
oldest is in second grade. He is 7. And I am amazed at how many
of his little friends--and this was last year, actually, when
he was in first grade. I am amazed at how many of them
regularly play M-rated video games. Now, I do not blame that on
the ESA or the companies that make these things. I blame that
on their parents, and what I want to try to do is at least get
their attention because I would like to believe that if some of
these parents knew what was in these games, if we could just
get their attention, they might put a stop to it.
I have been working on other ways to get the attention of
parents in Minnesota with Dr. David Walsh and the Minneapolis-
based National Institute on Media and the Family, which is
probably the most well-respected organization in the country
addressing the impact of the media on children and families.
But I also believe that we have to do something legislatively,
and you have already mentioned it, Mr. Chairman, and a couple
of the testifiers did, and we saw it on the screen. We are not
talking about the equivalent of an R-rated slasher movie here.
Many of these games are absolutely, to use your term, horrific,
and I have actually rented some of them so I could see before I
wrote my bill. They allow kids to learn firsthand how to kill
people and how to torture people and how to mutilate people and
how to rape people in graphic detail and in vivid reality. And
the key difference from the movie is they do not watch other
people doing it. They get to do it themselves. And in many of
these games, the more violent and gruesome you are, the more
points you score.
I cannot leave today without being certain that everyone
comprehends the nature of the violence in these games. We saw
some examples on the screen. Those are not even the worst
examples that I have seen, Mr. Chairman, and I want to share
with you just very brief descriptions of four popular video
games that I know are available at large retailers and video
rental stores in Minnesota, because I have seen them.
The most popular game in America last year was ``Grand
Theft Auto,'' which you had on the video that we saw. The
player is a young man who is trying to gain the respect of
street gangsters and other criminals, and, of course, you are
that person. And the more creative and brutal you are in
killing innocent people, and in some cases cops, the more
respect you gain and the more points you score.
One example in this game of a creative kill would be to
beat someone to death with a bat until he drowns in his own
blood, and then when the ambulance comes, you can actually kill
the ambulance driver and use the ambulance to kill some more
people on the street.
Another piece of this game is one that you mentioned, Mr.
Chairman. You can score points by having sex with a prostitute,
and then if you beat her to death afterwards and get your money
back, you may score some more points.
``Clock Tower 3'' is another game that is readily
available. It is a survival horror game about a young girl who
is being chased by murderers who want to kill her and her
family. In one scene, a little girl with pigtails is caught by
her attacker who repeatedly smashes her head against a wall
with a sledgehammer. Later you see her ghost covered in blood
playing a piano while her father is impaled onto a fence. And
another scene shows a killer gouging out a man's eyeballs and
then lowering the man's elderly mother into a vat of acid as
she begs for mercy.
``Manhunt'' is another fairly popular game, and I know that
is available at my large video rental store because whenever I
go with my son and he wants to look at the latest ``Madden NFL
Game,'' there is ``Manhunt'' right next to it. And in this
game, the player is a mass murderer who sometimes wears a clown
mask to disguise himself. You score points by, of course,
killing people in creative and gruesome ways. For example, you
can use a piano wire to grab a man from behind and saw at his
neck, pushing your foot up against his back until his head
falls off. You can suffocate someone with a clear plastic bag.
You can twist large shards of glass into someone's eyeballs or
you can use a sickle to split someone's stomach or stab a
crowbar into the back of someone's head and pry it apart.
And my last example is ``Postal 2,'' and I think we saw an
example of ``Postal 1'' on the video earlier. This is a serial
killer game where, of course, you score points by killing
innocent people. There are a lot of ways of doing it, but one
piece that I found interesting was that you can actually
possibly score extra points by urinating into a victim's mouth
before you kill him or her. And you can even open fire on a Gay
Pride march, a minority community celebration, and a parade of
police officers.
Mr. Chairman, comparing this in any way to playing Frisbee
is just beyond my belief, because it is not.
I do not enjoy reading these descriptions. They literally
make me sick to my stomach, especially knowing that little kids
all over the State of Minnesota are playing them. But people
need to know how horrific these games really are, and I think
by describing them you can better understand why some of us
feel that we absolutely have to do something about it.
To the bill, and I will keep it very brief. We have crafted
a very narrow-language bill in our State because we are
concerned about the cases out there that exist with respect to
content-based restrictions. But despite the dire warnings from
the ESA when I first brought this bill up last year, I believe
that our bill could survive a constitutional challenge, and
here is why. Three brief reasons.
The only case on point with any precedential value in
Minnesota is the Eighth Circuit case of IDSA v. St. Louis
County. The rest of them are without our jurisdiction, and that
case came down over 3 years ago, and I believe was argued
nearly 4 years ago. There is a big difference between our bill
and the bill in that case.
The St. Louis County ordinance in question first was a
great deal broader than our very narrowly tailored bill in
Minnesota, and that is a very important distinction because not
only the Eighth Circuit but all of the other cases, I believe,
where a court has either struck down or placed an injunction on
one of these statutes or ordinances say that we need to more
narrowly define the statute.
Second, the St. Louis County ordinance that is in this case
and all the other laws that have been struck down have been
subject to the argument that they are unconstitutionally vague
because they restricted video games which fell under a specific
statutory definition of ``violence'' or ``excessive violence.''
So the retailer could not look at the box and say, ``Oh, this
falls under the law.'' What we have done is we have said that
the restrictions only apply to those games that are rated in a
certain way so that you can look at the box and immediately
determine. And I realize this isn't ideal because the industry
or at least a private entity will have control over which games
fall within the category, but it is all we have got. And I
would certainly welcome a future discussion on possible
Government rating of these video games.
And then finally, and most importantly, the St. Louis
County case was argued more than 3 years ago, and the court
determined at that time that there was no compelling State
interest because they were unable to find a credible link
between excessively violent video games and psychological
health of children. And if you actually read the case, you will
see that almost nothing of value was offered. One psychologist
testified in court--
Chairman Brownback. Mr. Johnson, let's wrap it up here if
we can.
Representative Johnson. Thank you. The difference is that a
lot has happened in the last 3 years, and, frankly, I think we
have heard in the last hour more evidence than what the Eighth
Circuit was presented. So my belief, and my strong belief, even
though I may have a misplaced faith in the court system, is
that our case will survive a constitutional challenge.
Thank you.
[The prepared statement of Mr. Johnson appears as a
submission for the record.]
Chairman Brownback. Thank you.
Mr. Smith?
STATEMENT OF PAUL M. SMITH, JENNER AND BLOCK LLP, WASHINGTON,
D.C.
Mr. Smith. Thank you, Mr. Chairman and Ranking Member
Feingold and members of the Subcommittee. I appreciate the
opportunity to come before you today to discuss the
constitutionality of State regulation of violent video games,
and I ask for consent that my full statement, including the
relevant attachments, be made a part of the hearing record.
Senator Feingold. [Presiding.] Without objection.
Mr. Smith. My perspective is that of an appellate advocate
who has litigated First Amendment issues for the better part of
three decades. Most recently I have represented the video game
industry in litigation regarding the constitutionality of State
laws that ban distribution to minors of video games with
violent content. In each of those cases, as well as every other
case to consider the issue, the courts have struck down legal
restrictions on minors' access to violent video games. Those
outcomes reflect the fact that there is no general exception to
the First Amendment for laws that target minors' access to
protected speech. Any attempt at such regulation of
distribution of video games based on their violent content,
either at the State or Federal level, would under no
circumstances that I can contemplate be upheld.
Every court that has looked at this has found that the
State regulation in question did not pass constitutional muster
because the Government lacks a legitimate and compelling
interest which must be based on substantial evidence in the
record for restricting violent video game content and access by
minors. The kinds of testimony presented here today in favor of
legal restrictions on video games have been rejected out of
hand by every court that has considered them.
First, as a matter of law, any attempt to justify content-
based suppression of speech based on the theory that particular
content carries too much risk of causing listeners to engage in
bad behavior is categorically ruled out under the First
Amendment. Our Constitution mandates that the Government
regulate behavior, not speech that is perceived as likely to
cause undesirable behavior among listeners or recipients. There
is only a single very narrow exception to that rule, the
Brandenburg incitement standard, and that test requires that
the speech have been intended to and e likely to incite
imminent lawless action like a mob being whipped up in the
street. As the courts have recognized, video games do not
remotely meet that standard.
Similarly, courts have rejected the argument that
restrictions on violent video games can be justified as a means
to prevent psychological harm to minors. That is because the
Government does not have a legitimate let alone compelling
interest in regulating speech in order to affect citizens'
thoughts, attitudes, and personalities. This is through for
minors as well. The Supreme Court has made abundantly clear
that the Government cannot suppress speech to minors solely to
protect the young from ideas or images that a legislative body
thinks unsuitable for them. That is simply not a role that the
Government may play in our society.
In any event, factually, the social science claims that
minors who are exposed to depictions of violence in video games
are more likely to experience feelings of aggression, to
experience a reduction of activity in the frontal lobe of the
brain, or to exhibit violent anti-social or aggressive behavior
have found absolutely no judicial acceptance. Courts have
considered them wholly unpersuasive and not even approaching
substantial evidence, and one factor in that is the precipitous
drop in youth violence per capita that has occurred in this
country since 1994 when the most violent and graphic games were
introduced in the range of a 43-percent reduction.
Now, singling out video games from all other media
containing violent images constitutes another fatal flaw in
State video game legislation. Because movies, books, magazines,
music, art, television, the Internet, to which almost all
modern American children are exposed, are left unaffected by
these laws, they cannot conceivably advance any purported State
interest. In addition, courts require that a regulation of
expression be the least speech-restrictive means available to
achieve the bill's end. Given the multitude of other options
available to the Government, such as parental education and
parental controls that are being installed in the video game
machines themselves, legislative censoring of violent video
games has consistently been held unconstitutional.
Finally, it is worth noting that the proposed Federal
legislation restricting access to video games would fare no
better than the State regulations that have been struck down.
The proposed Federal Family Entertainment Protection Act would
impose Federal penalties on the sale or rental of a video game
rated M for mature or AO for Adults Only by the ESRB to minors
under the age of 17. Like the State laws, the proposed Federal
act would impose a content-based restriction on expression that
is fully protected by the First Amendment and would without
question be struck down by the courts.
For all of these reasons, among others, I urge this
Subcommittee not to support unconstitutional legislation that
has been consistently struck down in courts around the country.
Even beyond their repugnance to the Constitution, it is clearly
the view of the courts, and likely most Americans, that
families and not the Government should be making the decisions
about what type of content children should be exposed to.
Thank you, and I look forward to answering any questions
that you may have.
[The prepared statement of Mr. Smith appears as a
submission for the record.]
Chairman Brownback. Thank you, Mr. Smith.
Professor Saunders? And we just called for a vote. My
colleague went over for that. We will hear your testimony, and
then hopefully he will be back after my questioning, and we can
keep this going without going into a recess. Professor
Saunders?
STATEMENT OF KEVIN W. SAUNDERS, PROFESSOR OF LAW, MICHIGAN
STATE UNIVERSITY, EAST LANSING, MICHIGAN
Mr. Saunders. Mr. Chairman, I want to thank you and the
Committee for the opportunity to share my thoughts on the
shielding of children from violent video games. Those thoughts
are set out in more detail in my written statement. I am Kevin
W. Saunders, Profess of Law at Michigan State University. I
have spent the last dozen years studying the constitutional
issues surrounding attempts to limit the access of children to
depictions of extreme violence, and I have been involved in
most of the recent round of attempts to so limit children. I am
bothered by the view that while these games are poison, the
First Amendment requires that children have access to that
poison. While the attempts have thus far been struck down,
there are bases on which restrictions may overcome First
Amendment limits.
I also would say I agree that the first line of defense
does have to be families, but I think families need help, that
you cannot ride herd over your child every minute of every day,
and by simply requiring that materials not be provided directly
to children, it requires that their parents make the one-time
decision to provide that material or not to provide that
material.
Turning to those bases, the first two potential bases I
will mention only briefly have met with at best limited success
in the courts, and later courts may take the earlier decisions
as authoritative, although the Supreme Court has not ruled on
the theories involved. One approach is to argue that
sufficiently violent material, when presented to children, may
be obscene. I argued for this thesis in my book ``Violence as
Obscenity,'' and it was accepted by the Federal district court
in the Indianapolis litigation but was rejected by the Seventh
Circuit. It is important to note that the Supreme Court has
never ruled that violent material cannot be restricted. It has
struck down a violence statute as vague, but specifically
warned against the more general conclusion that violent
material cannot be restricted.
The second theory is that video game play, like the play of
pinball machines, is not an activity protected by the First
Amendment. This was the theory of the district court in the St.
Louis case, but it was rejected by the Eighth Circuit. The
important distinction, one not spelled out by either court, is
between the creative activity of the programmer and the
communication of the product of that activity to the player on
the one hand and the player's playing of the game on the other.
This sort of distinction was recently recognized by the Fourth
Circuit in distinguishing between the band at a community dance
and a dancer on the floor.
The theory to which the courts have paid the most attention
is based on the claim that, even if violent video game play is
protected by the First Amendment, restrictions may stand based
on the danger the games pose. Infringing a constitutional right
does not mean the limitations are necessarily struck down.
Instead, a restriction must meet strict scrutiny. It must be
narrowly tailored to a compelling governmental interest. All
the courts have accepted that physical and psychological well-
being of youth is a compelling interest, but the courts have
not been willing to find the restrictions necessary to that
interest.
The courts have questioned the scientific studies and have
questioned whether evidence of correlation between violent
video game play and real-world violence demonstrates causation.
This is particularly interesting given the overwhelming
consensus of the health and science community that media
violence causes real-world violence.
As an aside, let me say there is a new body of evidence
developing that was not presented today, a neuroscience in the
violent video game play on the development of brains in
adolescents, a study at the Indiana University Medical School
that shows a difference in functioning in the prefrontal cortex
of children with exposure to violent media. This was raised in
the Illinois case. The industry produced a witness who said,
well, maybe this judgmental function is being done in some
other part of the brain. No evidence that it is being done in
any other part of the brain, but it could happen, I suppose.
Even if that is true, it still shows a brain dysfunction that
is similar to that of children who have disruptive
developmental disabilities. So I think that is a developing
area that needs to be followed.
I am not a scientist. I do not have the understanding of
the issues that others testifying today do have. It seems
likely that none of the judges involved have been scientists
either, and we would almost be open to recognizing the
continuing development of this area of research, both
psychology and neuroscience.
From a legal point of view, it is important to note that
the courts' decisions on the scientific issues can have no
long-term precedential effect. Unlike conclusions of law, the
conclusions on science are contingent. A court's conclusion
that the science fails to establish the danger perceived by the
public and the legislature is only a conclusion that the
science at the time was lacking. It does not establish the
conclusion that the science at the time of any future
legislation or litigation is also lacking. Each time the issue
arises, the courts must consider the science anew.
Last, returning to the issues I addressed in a recent book,
``Saving Our Children from the First Amendment,'' that argues
for lesser First Amendment protection for expression to
children, I think it important to consider the costs of two
possible errors here. If violent video games do cause an
increase in real-world violence and courts refuse to allow
limitations, the cost is psychologically damaged children and,
in the extreme, deaths. For the other possible error, allowing
restrictions when media violence does not, in fact, have the
effects suggested, the costs would seem to be to the values
behind the First Amendment. But the most important values
served by protecting free expression are those tied to self-
government. To be self-governing, we must have access to
information, but children do not vote. True, as Judge Posner
argued, they need to be competent voters when they turn 18, and
that is why I have counseled legislators to set limits at 17.
That allows a year to play as many violent video games as it
takes to become a competent voter. The other major value
thought by some to underlie the Expression Clauses is autonomy,
but we do not really believe in autonomy for children, or we
would allow them to smoke and drink.
I hope legislatures will continue in their efforts to
protect children from this serious danger. Absent a Supreme
Court decision on the issues, at least some lower courts may
consider the constitutional theories suggested. Even with a
negative Supreme Court opinion on all the issues, a failure to
find adequate science at one point does not bar legislation and
litigation at a later point. Despite past losses, as the
science continues to develop, the effort can continue, and the
danger theory is never permanently dismissed.
Once again, thank you for this opportunity.
[The prepared statement of Mr. Saunders appears as a
submission for the record.]
Chairman Brownback. Thank you, Professor Saunders, for the
testimony and you work in this area. I have a few questions I
want to try to ask, and I will ask I be advised when the vote
is down to 2-1/2 minutes. If my colleague has not come back,
what we will do is probably adjourn at that point in time if he
is not being with 2-1/2 minutes left on the vote. I might ask
if his staff could find out if he is definitely coming back.
Representative Johnson, what would be the most useful or
helpful thing we could do at the Federal level, for you at the
State level in dealing with this issue? What information, what
could we do to be the most helpful?
Representative Johnson. Mr. Chairman, I think two things
come to mind. No. 1, anything you can do to provide more
evidence than we already have--and I am under the impression
that there may be enough there in front of a certain court to
show a link and a compelling State interest. But anything that
the Government could help establish in that area by funding
something would be very helpful. And then as I mentioned, I
think at least there should be a discussion of a rating system
different than what we have, and I don't think the rating
system we have is necessarily wrong, but I think it does pose
some separate potential constitutional problems.
Chairman Brownback. More information in the rating system?
Representative Johnson. No. A rating system that is done by
a separate entity.
Chairman Brownback. Outside group.
Representative Johnson. Yes.
Chairman Brownback. We have been looking at that for some
period of time, and this is one, you know, where you have got
the manufacturers that set up the entity to rate it, it does
not lend much confidence to me about the independence of that.
Professor Saunders, what should we do at the Federal level
to be most helpful for these State and local efforts?
Mr. Saunders. Clearly, anything that can be done to help
further research on both the psychological and the neurological
issues I think would be important. There is, of course, always
the possibility of a Federal statute as well, and Congressional
findings of fact may help to show up alongside the testimony
that has been offered by psychologists.
Chairman Brownback. Anything on ratings, any studies on
target marketing? We have seen a number of people in the
entertainment industry target, market age-inappropriate
material where they would take an M-rated item and market it to
a 10-year-old?
Mr. Saunders. The problem, of course, in that area is that
it is not illegal to provide the material to children. If you
are advertising illegal material to an audience--cigarettes to
children, for example--then there is a legitimate basis to go
about that. Not that I do not think it would be legitimate, but
under the court's view of the First Amendment, children would
have a right to this material.
So you are going to have to get around the problems that
have been raised in the legal decisions so far in order to do
what you are suggesting.
In terms of whether or not the ratings are adequate, I am
not an expert in terms of the ratings, and I have been content
so far to try to at least enforce the ratings. The games that
the industry itself says are inappropriate to children, simply
try to get stores not to sell those games to children. And the
industry, despite saying these games are inappropriate for
children, comes in and fights us in litigation and says we have
a right to sell these games to children and children have a
right to buy them.
Chairman Brownback. Ms. Vance, I want to ask you, you
represent the industry, have done so very effectively. A lot of
these games turn your stomach, too, don't they, when you see
these clips?
Ms. Vance. I certainly would not bring some of those games
home for my children.
Chairman Brownback. And yet they are part of your industry
group. They are manufactured by people that are part of your
industry or association?
Ms. Vance. Well, anybody can submit a game to the ESRB to
be rated.
Chairman Brownback. But I am having a little difficulty
understanding. If you look at these and you are just saying,
you know, killing a cop and then putting him on fire with
gasoline and kicking him in the groin, that does not seem to be
really encouraging scenery to put forward. Why wouldn't the
organization itself just drum out people, saying, you know,
look, we have got certain standards, we think this is important
that people be able to have access to it? Why doesn't the
industry itself police some of those items and saying this is
just degrading to our industry?
Ms. Vance. Well, our job is not to censor. Our job is to
make sure that the product is accurately labeled, and all the
games that were shown were--
Chairman Brownback. I am not asking you to censor. I am
asking you to look after your own industry.
Ms. Vance. I represent consumers. That is my mission. I
want to make sure that consumers are informed and the
information is on all the packages and in all the advertising
is informative. And the games that you are specifically
referring to are all rated for 17 or 18 and older.
Chairman Brownback. So there is nothing that would not be
inappropriate for your industry to put out for sale?
Ms. Vance. Again, our job is not to censor. Our job is to
enforce the system that we have, which means that--
Chairman Brownback. But I just want to understand that
there is nothing that would come across the industry that you
guys would say we just are not going to let you guys be a part
of this industry, we are not going to allow you to be a part of
this association. You are just saying, look, we do not censor
anybody, so everything is legal and everything is OK.
Ms. Vance. If it is a game, we will rate it. We can rate it
in the most restricted categories, and we can apply a number of
content descriptors that would be very informative to consumers
before they purchase. But our job is not to censor.
Chairman Brownback. Nothing inappropriate.
I noted, too, you were saying that most game aren't M-
rated, yet in 2004, the top two video games sold were, No. 1,
``Grand Theft Auto San Andreas,'' No. 2, ``Halo.'' Both are M-
rated, involving extreme violence and sexually explicit scenes.
Ms. Vance. In 2004, there were three games in the top ten.
In 2005, there were no M games in the top ten.
Chairman Brownback. You were not fully representing things.
You may have said ``last year'' but the year before--
Ms. Vance. I did say ``last year.'' I did say ``last
year.''
Chairman Brownback. But the year before that, I would hope
you would fully represent the industry that is saying, now,
wait a minute, we had a pretty good M-rated year in 2004.
Ms. Vance. The games themselves in terms--
Chairman Brownback. Is that true?
Ms. Vance. I am sorry. The question was?
Chairman Brownback. In 2004, your top two games were M-
rated.
Ms. Vance. They were, sir. They represented about 15
percent of the sales overall in the industry.
Chairman Brownback. The top two rated in sales.
Ms. Vance. They were.
Chairman Brownback. So congratulations for selling a lot of
violent games in--
Ms. Vance. I did not sell them, sir. I just rated them, and
they were both rated for 17 and older.
Chairman Brownback. I am going to have to slip on out. We
will go into recess until Senator Feingold can come back. I
have got to get over and vote, and when he comes back, then he
will reconvene for some more questions.
Thank you very much. We are in recess.
[Recess 3:50 to 3:56 p.m.]
Senator Feingold. [Presiding.] I will call the Subcommittee
hearing back to order, and I understand it is my opportunity to
ask some questions of the panel, which I appreciate.
The factual questions that the first panel examined seem to
have played a significant role in the court's evaluation of
State and local regulations of video games. I understand the
goals of these well-intentioned State and local legislators has
been to protect children from possible ill effects of playing
these games.
For the lawyers and the legislator on the panel, to what
extend do each of your legal arguments about the
constitutionality of these laws depend on whether violent video
games can be proven to cause violent behavior in children? And,
more generally, why do you think courts have consistently
struck down laws attempting to regulate violent video games?
Let's start with Representative Johnson.
Representative Johnson. Thank you, Senator. I have paid
most attention, to be honest, to the one case in my own
jurisdiction, which is that Eighth Circuit case, and that court
clearly struck down--one of the reasons it struck down the
ordinance in that case was that there was scant, if any,
evidence presented of a link between violent video games and
behavior, negative behavior with kids.
My understanding, without being a scientist myself but just
from sitting here even today, is that the science has advanced
in the last 3 to 4 years, and so my belief is that there is
more evidence to present, certainly a lot more evidence that
was presented to that particular court. And without having
thought through all the different arguments we could make, I
think that is an important piece of my argument with respect to
the constitutionality of our particular statute, that we are
going to have to show that there is a compelling State
interest. It is going to be hard to get past the protection
that is there without showing that. So I believe that it is
going to be necessary, but I also believe that we can do it.
Senator Feingold. But in terms of all the different courts
that have struck this down, obviously you are aware that there
is a concern about content-based regulation.
Representative Johnson. Of course.
Senator Feingold. Could you comment on that you acknowledge
that--to what extent you acknowledge the danger of such things?
Representative Johnson. Oh, absolutely. I entirely agree,
and that is why we have tried to craft such a narrow bill,
because part of the argument in the other cases was that there
was not enough evidence to show a compelling State interest,
but there are also arguments in those cases that either the
statute was unconstitutionally vague or was too broad, and we
have tried to address all three of those issues, or at least
the latter two that we can address, in our bill. So I think it
is a unique bill in that way, and that is why I am hopeful at
the very least that we could pass muster with the court.
Senator Feingold. Thank you, Representative.
Mr. Smith.
Mr. Smith. Yes, Senator, I think it is not simply a factual
issue. As I said in my statement, there is a very, very high
legal standard, which is the strict scrutiny standard, which is
never--I cannot think of a single example in the history of the
Federal courts where a content-based law which has been
subjected to that level of scrutiny has been upheld. In
addition, you have this Brandenburg principle that if your
justification is we think the people who receive the speech are
going to behave badly, that is not a justification
categorically.
So I think there are very high legal hurdles that on their
face are almost impossible to get over. There is, however, a
factual problem as well. We had a trial last November in the
Illinois case where the leading researcher in this area, who is
an advocate of legal regulation, a psychologist, Dr. Anderson
from Iowa State, took the stand and had to actually explain on
cross-examination the limitations of the research that is out
there. And he acknowledged, as he had to, that there is no
long-term causal inquiry that has ever been made into the
effects of video games. The evidence of that kind is not there.
But he also acknowledged that what studies do exist do not show
that children are more vulnerable to effects than adults. They
do not show that video games are any more severe in their
effects, even under his standards, than television. And they do
not show that the graphic kinds of games that we have seen here
today have any more severe effects than the cartoonish games
that are created for little children.
So the research that he himself was conducting and
describing--and he does eight out of ten of the studies that
anybody ever cites--is so limited in what it tells the courts
that it does not even get them to first base, frankly.
Senator Feingold. Well, I think it is useful that you make
the clear distinction between causality and the legal standard,
which are two important distinct issues.
Professor Saunders?
Mr. Saunders. There are a lot of cases that have been cited
here, and in my statement I talk about two of them--or really
three of them in terms of obscenity, in terms of being not
protected by the First Amendment, like pinball games and in
terms of different layers of protection, different levels of
protection from the First Amendment. But it is easiest to get
the court to accept a challenge, I think, based on danger than
on accepting a new view of the Constitution.
I think there are problems with judges understanding
statistics. In that Illinois case, the judge said something to
the effect of some studies do not show this kind of
correlation, and some studies, in fact, show a negative
correlation. And I am suggesting, you know, if you look at
baseball statistics, I might out-hit--well, I would never do
it, but I might have out-hit Ted Williams in one game, but that
does not mean that I am a better hitter than he is, or was. It
is over a season that you make those distinctions, and meta
analysis which Dr. Anderson has done does tend to show--to even
out the variations from study to study.
It surprises me that Professor Anderson made that
admission, if he made that admission, because he has in one of
his articles called violent video games ``the perfect learning
environment for violence,'' indicating that they are different
from television.
Senator Feingold. Thank you, Professor.
One more question. Mr. Smith and Professor Saunders, how
have courts treated laws regulating the use of video games by
children as opposed to adults? Is there anything comparable to
the ``harmful to minors'' doctrine in the indecency context?
Mr. Smith. The courts have repeatedly rejected that
argument, that there should be a lesser standard, an argument
that Professor Saunders made very eloquently in some of his
published writings. But the courts in at least three circuits
have said that there is no ``harmful to minors'' exception
except for sexual content, obscenity. And that is the Eighth
Circuit, the Seventh Circuit, and the Sixth Circuit have all
rejected the notion that we are going to apply a lesser
standard than strict scrutiny just because somebody comes in
and says it is a violent and we should call it harmful to
minors.
Senator Feingold. Professor?
Mr. Saunders. Mr. Smith is correct there. The Sixth Circuit
cases were before my work was published in that area, but the
Seventh Circuit case, the district court in Indianapolis
accepted the theory, and the Seventh Circuit rejected it. The
Eighth Circuit, it was not the focus of the arguments in those
cases, but it was not accepted there either.
Senator Feingold. It is my understanding the Chairman wants
me to conclude the hearing. Is that correct? Or does he want to
come back?
All right. Well, I believe the Chairman wants me to
conclude the hearing. Let me thank the witnesses on both panels
very much for your testimony and your hard work in responding
to our questions. We look forward to working with you on this
issue, and I thank you all.
This concludes the hearing.
[Whereupon, at 4:03 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
[Additional material is being retained in the Committee
files.]
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