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Proposed ban on violent video games in public spaces faces legal problems

Violent Video Games
A New Jersey legislator is hoping to introduce legislation that would prohibit violent video games from being played in public spaces such as arcades.JOHN SMOCK / AP File

A state lawmaker in New Jersey is planning to introduce legislation that would prohibit public spaces such as amusement parks, movie theaters, bowling allies, or restaurants from making video games rated “mature” or “adults only” available to play.

Under the proposed legislation, business owners could face fines of up to $10,000 for the first offense and $20,000 for repeated offenses.

In a statement introducing the proposed legislation, state Assembly woman Linda Stender (D-Union) said that while violent video games don’t necessarily cause violent behavior, “they can play a role.”

Like many politicians searching for a response to last year's Steuvenville shooting, Stender is targeting violent video games as an threatening part of American popular culture. But her proposed legislation could face legal problems not only because video games are considered a form of speech protected under the first amendent, but also because the "mature" ratings she is appealing to have not historically been applied to the arcade games she is specifically targeting.

“Children today are exposed to violent images more than ever. Violent video games can desensitize children to violence and give them a warped version of reality where violence and death have no consequences outside their TV screens,” Stender said in a press release.

The problem that Stender’s proposed legislation faces, however, is twofold. First, any legislation seeking to prohibit either the sale or production of video games (however violent they may be) would run up against the legal precedent set by the 2011 Supreme Court decision in Brown v. Entertainment Merchants Association (EMA), which found in a 7-2 decision that games, like other forms of media, were protected speech under the First Amendment.

This landmark legal decision alone would challenge Stender’s proposal, as well as a recommendation put forward just a day earlier by New Jersey Gov. Chris Christie’s task force recommendation to require parents to accompany minors when they purchase video games rated “mature.”

The unique problem that Stender’s proposal faces, however, is that the Entertainment Software Rating Board (ESRB) has never rated coin-operated arcade games, which are typically the only kind of video games made available in the public places she mentioned in her statement.

“It’s the typical waste of taxpayer money and effort that capitalizes on a national tragedy to support a culture war agenda,” Christopher Ferguson, a professor of psychology at Texas A&M who has researched and written extensively about the impact of violent video games on their players, said of Stender’s plan in an email to NBC News. “I think it’s simply an effort to make a public show of ‘doing something,’ skirting Brown v. EMA by focusing on publicly owned outlets as opposed to private businesses.”

Ferguson was dismissive of the idea that Stender’s plan to regulate violent video games could have the backing of any new scientific data, saying that “the research really hasn’t changed much over the last few months,” and “the evidence still can’t be used to support the kinds of sweeping conclusions the assemblywoman puts forward.” But he did acknowledge that while these kinds of arcade games haven’t exactly been sanctioned by the ESRB in the past, that leaves them open to renewed inquiry by state legislators such as Stender.

“I suspect the issue with the ‘public accommodation’ is one of public spaces being directly under the control of the state — as opposed to the local Best Buy or Gamestop – and thus the state may be given more leeway to control what is on its own property than what is being sold in private businesses,” Ferguson added. “This, I think, is a riff off of the various Supreme Court cases, where in Brown v EMA video games were afforded First Amendment protections, but in Fox v FCC, the court kinda wiffed, and said maybe the government could regulate it’s own broadcast airwaves. That’s why explicit sex, nudity and profanity is a “no go” on broadcast — that is, publicly — owned airwaves, but anything goes on privately owned cable channels.”

Still, arcade games are widely seen by gamers and their critics alike as an outdated form of entertainment that has been all but eclipsed by console and mobile games alike. Any effort to regulate a dying part of the industry, Ferguson suggested, could seem redundant as well as unconstitutional

“My first thought was: ‘People still go to arcades?’” Ferguson joked.