I would like to thank Mr. Zolandz for his help and insight in writing this article. Mr. Zolandz is a partner in the Public Policy and Regulation practice and is practice leader for the Public Law and Policy Strategies team. He has also been following this case for the last 10 years. You can check out his full Bio HERE.

Since 2001 California has been debating over a bill that would make it illegal to sell M-rated video games to minors, which we all know as Brown v. Entertainment Merchants. If passed, the bill would the first of its kind for any entertainment medium; making it illegal to sell graphic material to minors.  According to Zolandz, the proposed bill could have been spread to other entertainment medias like comic books and movies; but its main focus was on video games.

The bill composers supported it with stats by a study done by Federal Trade Commission 2006. The study stated that 18-22% of under aged children were able to buy M-rated games from retailers. According to Zolandz these numbers equal to those of minors be able to purchase alcohol, which is illegal.  The question the court had to decide was if the law was worth the constitutional infringement to get that number down from 18-22% to 10-12%.

Many experts, including Zolandz, found it interesting that the case even reached the Supreme Court. Every level the case went through found in favor of the video game industry with strong support. The Supreme Court ruling was not different with a vote of 7-2 in favor of the game industry.

There were two main arguments for the focus on video games rather than other media forums. One had to do with the immersion of video games. The argument was simple. Video games offered more interaction while committing crimes then watching it on a screen or reading it in a book. The second argument had to do with scientific studies done in the late 90’s and early 2000’s that linked playing video games to violent behavior.

In both of these arguments the court found fault in them. According to Zolandz, the first argument was shot down because the court believed that “entertainment is always evolving.”  People had the same reaction about violence when TV and Movies first came out. For the second argument the court found these studies to be inconclusive. The studies were not focused on violence themselves just the “hyping people up” and aggressive competitive behavior that video games produce. This same aggressive behavior could be seen in people who play flag football in their backyard.

I asked Mr. Zolandz what would have happened if the bill passed. He responded saying it would be hard to tell “an alternate reality” of the bill passing. Zolandz did go on to explain that he did not see a huge change for the game industry itself.  The majority of gamers fall into the 18-34 year range, which would not be affected by the bill. The biggest change would be for retail game stores and online business. One version of the bill had retailers placing M-rated games behind a curtain or in a back room much the same way pornographic materials are treated. For online companies they would have to figure out a way for people to confirm their age before sending a game to a consumer.

If the bill passed the only change Zolandz saw for the game industry is in the rating scale. The bill would force the industry to make a clearer rating system with clearer information about the game. Maybe adding a couple more rating levels.

The main supporter of the bill, Senator Leeland Yee, went on record recently to say he will rework the bill to make it more constitutional and then try to resubmit it. According to Zolandz there is not a clear way to make the bill constitutional. The only way is to entirely change the bill by doing away with the penalties on retailers selling M-rated games to minors, and then focus more on making a clear rating system for games.

This was a great victory for the entertainment industry. Sadly, I am sure this is not the last we will see of a bill like this.