Pimply faced, socially awkward fanboys and nerd girls rejoice! Last week, the U.S. Supreme Court issued a ruling striking down a California statute outlawing the sale of bloody video games to minors. The justices held that the law, designed to protect children, nonetheless violated constitutional protections on free speech. And the court’s decision was probably the right one. There’s too little evidence of real danger from video games, and too little reason to treat video games as categorically different from other sources of violent content.
But the video game industry ought not congratulate itself too quickly. In general, being told that your business model is permissible only as a matter of constitutional interpretation is not a good sign. For one thing, it doesn’t exactly put you in the best of company. It puts you shoulder-to-shoulder with hard-core pornographers, and with arms dealers who make armour-piercing bullets for American “hunters.” For another thing, it doesn’t say the product is harmless, merely that whatever harms do result from it are considered a private matter, beyond the reach of the law. More fundamentally, narrow constitutional protection means that your business is only barely tolerable by your fellow citizens.
Of course, this is precisely what is so nice about a free market: your product doesn’t have to be popular in any grand sense in order for you to stay in business. You just have to find a niche that provides you with enough customers to pay the bills. You may find that there are people who don’t like you, but you generally won’t be beholden to them to make your living. And this isn’t merely economically good for the parties involved. It is also, generally, morally good. Compare the diversity and flexibility of a free market to those times and places where a product—even an innovative and useful one—could only find its way into the hands of customers by first tickling the fancy of the right nobleman or petty bureaucrat. That comparison is what makes constitutional protection of even dubious businesses something worth celebrating. The freedom of the market, it should be remembered, is not just about the freedom of money; it is the freedom of persons.
Still, the freedom of markets might be something to celebrate socially, but that doesn’t mean that selling gory games directly to kids is something for companies to be proud of. The fact that your business is protected in a free society is no reason to be proud of what you do for a living. Legal permission to do something doesn’t imply that you should do it, and there’s every reason for the video game industry to try to figure out how it can move its collective toe a little farther from the line. In other words, this is fertile terrain for industry self-regulation.
And efforts have been made: since 1994, the Entertainment Software Rating Board (ESRB) has rated video games in North America and attempts to ensure responsible retail practices.
But for whatever reason, the ESRB system isn’t perceived as being even as effective as the admittedly imperfect system that generally prevents American movie theatres from admitting 14-year-olds to NC-17-rated movies. Self-regulation isn’t easy, particularly with regard to products that are sold through thousands of retail outlets, and increasingly online. Still, the industry has to try. A clear push toward social responsibility might go some distance toward proving that the video game industry is worthy of the constitutional protections it enjoys.
CORRECTION: The original version of this article did not indicate the existence of the ESRB regulatory body. The article has now been corrected to reflect that fact.