BILL ANALYSIS                                                                                                                                                                                                    






                           SENATE JUDICIARY COMMITTEE
                         Senator Joseph L. Dunn, Chair
                           2005-2006 Regular Session


          AB 1179                                                A
          Assembly Member  Yee                                   B
          As Amended September 2, 2005
          Hearing Date:  September 8, 1005                       1
          Civil Code                                             1
          AMT/MM:cjt                                             7
                                                                 9

                              PURSUANT TO RULE 29.10

                                    SUBJECT
                                         
                     Violent Video Games:  Sales to Minors

                                   DESCRIPTION  

          This bill would prohibit the sale or rental of violent  
          video games to minors under 18 years old, and would require  
          that such games be clearly labeled before being imported  
          into or distributed in California.  Violators of either  
          provision would be subject to liability for up to $1,000.   
          Sales clerks would be exempt from liability, so long as  
          they did not hold a management position or an ownership  
          interest in the retail business.  A minor's parents,  
          grandparents, aunts, uncles, and legal guardians would also  
          be exempt from the terms of the bill.  It would be an  
          affirmative defense to liability for unlawfully selling a  
          violent video game to establish reasonable reliance on  
          evidence that a purchaser or renter was not a minor, or to  
          establish that a manufacturer failed to label a violent  
          video game as required under the bill.

          The bill would offer two alternate definitions of "violent  
          video game."  The first definition would mirror the  
          language used to define "obscene" speech.  The second  
          definition would mirror federal statutes and jury  
          instructions that relate to aggravating factors that  
          warrant death penalty convictions. 

                                    BACKGROUND  
                                                                 
          (more)



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          This bill follows a line of attempts in this and other  
          states to limit the sale and rental of "violent video  
          games" to minors.  Proponents have argued that these  
          attempts are supported by numerous scientific studies which  
          indicate that minors who play violent video games may be  
          more likely to act aggressively than other minors and may  
          suffer other negative emotional and psychological effects.   

          Last year the Legislature passed AB 1793 (Yee), Chapter  
          630, Statutes of 2004, requiring video game retailers to  
          post signs notifying customers of a current industry rating  
          system that may be used to identify age-appropriate video  
          games, and requiring retailers to make information  
          explaining the rating system available on request.  Another  
          bill, AB 1792 (Yee, 2004), which would have prohibited the  
          sale or rental of "violent video games" to minors under age  
          18, failed in the Assembly Arts, Entertainment, Sports,  
          Tourism, and Internet Media Committee.

          Other states have successfully enacted statutes in recent  
          years to restrict minors' access to violent video games.   
          However, those statutes were found unconstitutional on  
          First Amendment and/or vagueness grounds.  [See, e.g.,  
           Interactive Digital Software Assoc. v. St. Louis County   
          (  IDSA  ) (8th Cir. 2003) 329 F.3d 954;  American Amusement  
          Machine Assoc. v. Kendrick  (7th Cir. 2001) 244 F.3d 572;  
           Video Software Dealers Assoc. v. Maleng  (D.C. Wash. 2004)  
          325 F. Supp. 2d 1185.]  The author notes that an Illinois  
          statute was recently signed into law that restricts the  
          sale of violent video games to minors.

          This year, AB 450 (Yee) was introduced in a renewed attempt  
          to prohibit the sale or rental of "violent video games" to  
          minors.  It was amended in the Assembly Judiciary Committee  
          to address some of the constitutional issues raised in  
          recent court decisions.  The bill passed the Assembly  
          Judiciary Committee, but failed its first hearing in the  
          Assembly Arts, Entertainment, Sports, Tourism, and Internet  
          Media Committee.  Although the bill passed on its second  
          vote in that committee, it has not been brought to a vote  
          on the Assembly Floor.

          On September 2, 2005, the last day for amending bills  
          without a rule waiver, the author gutted and amended AB  
                                                                       




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          1179 (Yee) to insert language largely identical to the text  
          of AB 450.  The primary difference between the bills is  
          that AB 1179 would prohibit the sale or rental of "violent  
          video games" to minors under 18 years old, while AB 450  
          would have prohibited the sale or rental of violent video  
          games to minors under 17 years old.

                             CHANGES TO EXISTING LAW
           
           Existing law  , the U.S. Constitution, provides that  
          "Congress shall make no law ? abridging the freedom of  
          speech."  [U.S. Const. Amend. 1.]

           Existing law  , the California Constitution, provides that "A  
          law may not restrain or abridge liberty of speech or  
          press."  [Cal. Const. Art. 1  2.]
           
          Existing law  requires video game retailers to post signs in  
          prominent areas of a retail establishment to provide  
          information about a video game rating system or to notify  
          customers that a rating system is available to aid in the  
          selection of video games.  The law also requires retailers  
          to make information explaining the rating system available  
          on request.  [Bus. & Prof. Code  20650.]  

          Existing law  prohibits the sale, lease, rental, or  
          provision of any video game intended for use by any person  
          under 18 years old, which contains any commercial  
          advertisement, brand names, trademarks, or copyrighted  
          slogans of alcoholic beverages or tobacco products in the  
          design, presentation, packaging or advertisement of the  
          video game.  [Penal Code  308.5.]

           This bill  would make a legislative finding that exposing  
          minors to depictions of violence in video games makes  
          minors more likely to experience feelings of aggression, to  
          experience a reduction of activity in the frontal lobes of  
          the brain, and to exhibit violent antisocial or aggressive  
          behavior.  It would also make a finding that even minors  
          who do not commit acts of violence suffer psychological  
          harm from prolonged exposure to violent video games.

           This bill  would make a legislative finding that the state  
          has a compelling interest in preventing violent,  
          aggressive, and antisocial behavior, and in preventing  
                                                                       




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          psychological or neurological harm to minors who play  
          violent video games.

           This bill  would prohibit the sale or rental of violent  
          video games to minors who are under 18 years of age.  This  
          prohibition would not apply when a minor's parent,  
          grandparent, aunt, uncle, or legal guardian rented or sold  
          a violent video game to the minor.  It would also be an  
          affirmative defense to establish: (1) that a defendant or  
          his or her employee or agent reasonably relied upon  
          evidence that a purchaser or renter was not a minor; or (2)  
          that a manufacturer failed to label a violent video game as  
          required under the bill.  

           This bill  would define "violent video game" as a video game  
          in which the range of options available to a player  
          includes killing, maiming, dismembering, or sexually  
          assaulting an image of a human being, if those acts are  
          depicted in the game in a manner that does  either  of the  
          following:

             a)   Comes within all of the following descriptions:

               i)     A reasonable person, considering the game as a  
                 whole, would find [it] appeals to a deviant or  
                 morbid interest in minors;

               ii)    It is patently offensive to prevailing  
                 standards in the community as to what is suitable to  
                 minors;

               iii)   It causes the game, as a whole, to lack serious  
                 literary, artistic, political, or scientific value  
                 for minors.

             b)   Enables a player to virtually inflict serious  
               injury upon human beings or characters with  
               substantially human characteristics in a manner which  
               is especially, heinous, cruel, or depraved in that it  
               involves torture or serious physical abuse to the  
               victim.

           This bill  would define the terms "heinous," "cruel,"  
          "depraved," "torture," and "serious physical abuse," and  
          would list pertinent factors to consider in determining  
                                                                       




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          whether violence is especially heinous, cruel, or depraved.

           This bill  would provide that violent video games which are  
          imported into or distributed in California for retail sale  
          shall be labeled on the front face of the package, as  
          specified.

           This bill  would make a person who violates any provision of  
          the bill subject to liability for up to $1,000, with the  
          exception that a person who is employed solely in the  
          capacity of a salesclerk or other similar position, and who  
          does not hold an ownership interest or a management  
          position in the business, may not be held liable.

           This bill  would provide that a violation may be prosecuted  
          by any city attorney, county counsel, or district attorney,  
          and that a violation may be reported to the city attorney,  
          county counsel, or district attorney by an adult acting on  
          behalf of a minor to whom a violent video game was sold or  
          rented.

           This bill  would state that its provisions are severable. 

                                     COMMENT
           
           1.Stated need for the bill  

            The author contends that this bill is a necessary  
            response to the potential negative impacts that violent  
            video games may have on minors under 18 years old.  The  
            author states:

               Since teens are wiring the circuits for self  
               control, responsibility and relationships they  
               will carry with them into adulthood, they are  
               more impressionable than we thought.  Active  
               participation by youth in playing violent video  
               games has a greater impact than watching  
               television.  Youth choose actions where they are  
               rewarded for causing violence to another  
               character.  Repetition greatly increases learning  
               and also causes youth to identify with the  
               aggressor in the game.  Dozens of studies on  
               violent video games, including an analysis of 54  
               independent samples with 4,262 participants, show  
                                                                       




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               five major effects: playing violent games leads  
               to increased physiological arousal, increased  
               aggressive thoughts, increased aggressive  
               feelings, increased aggressive behaviors, and  
               decreased pro-social or helping behaviors.  ?   
               These studies include experimental studies (that  
               show playing violent video games actually causes  
               increases in aggression), correlational studies  
               (where long-term relations between game play and  
               real-world aggression can be shown), and  
               longitudinal studies (where changes in children's  
               aggressive behaviors can be demonstrated).   
               Furthermore, students who played more violent  
               video games had greater involvement in physical  
               fights ?, became desensitized to violence, and  
               developed pro-violence attitudes and increased  
               tolerance of violence ?  The American Academy of  
               Pediatrics Policy Statement on Media Violence  
               stated that playing violent video games accounts  
               for a 13% to 22% increase in adolescents' violent  
               behavior.  When considering the negative impact  
               violent video games have on youth, the evidence  
               is strong:  playing violent video games has more  
               effect on increased youth aggression than  
               second-hand smoke has on causing cancer, or lead  
               exposure links to decreased IQ?

            The author acknowledges that the entertainment industry  
            has undertaken self-regulatory measures to prevent minors  
            under 17 years old from renting or buying games that are  
            "M-rated," e.g., that contain mature content which may  
            include mature sexual themes, more intense violence,  
            and/or strong language.  But the author argues that  
            self-regulation has been unsuccessful, as discussed in  
            Comment 3 below.

           2.First Amendment concerns  

            The First Amendment right to free speech must be a chief  
            consideration if the bill's restrictions would limit the  
            distribution of materials that are "protected speech."   
            The First Amendment does not prohibit every restriction  
            on protected speech, but it requires that restrictions be  
            carefully weighed and limited.  Appropriate questions  
            here are therefore whether "violent video games" are  
                                                                       




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            protected speech and, if so, whether the bill is  
            appropriately tailored to limit access to that speech.

              a)   Whether violent video games are "protected speech"  

               Video games have been found to be "protected speech"  
               in several recent court decisions, one court  
               explaining that games are protected because they  
               "contain stories, imagery, ageold themes of  
               literature, and messages, even an ideology, just as  
               books and movies do."  [  IDSA  , 329 F.3d 954 (internal  
               quotations omitted); see also  Kendrick  , 244 F.3d 572.]  
                

               The author notes that some speech which is considered  
               "protected" for adults may be deemed unworthy of  
               protection for children in certain cases.  [See  
                Ginsberg v. New York  (1968) 390 U.S. 629.]  But this  
               distinction has only been made in narrow circumstances  
               where the question was whether the speech was  
               "obscene."  Obscenity is one of the few categories of  
               speech which has historically been unprotected under  
               the First Amendment.  [See  Miller v. California  (1973)  
               413 U.S. 15.]  In  Ginsberg  the Supreme Court held that  
               children's access to certain pornographic magazines  
               could be restricted without any violation of the First  
               Amendment, even though those magazines were not  
               "obscene" according to adult standards, because the  
               magazines could properly be deemed obscene according  
               to community standards for children.  [  Ginsberg  , 413  
               U.S. at 636.] 

               The obscenity standard that was tailored to  
               child-specific standards in  Ginsberg  could not be  
               equally applied here.  This is because several federal  
               courts have held that materials which do not contain  
               "depictions or descriptions of sexual conduct" may not  
               be treated as obscenity, even when those materials  
               contain objectionable violence. [  IDSA  , 329 F.3d at  
               959;  Maleng  , 325 F.Supp. 2d at 1185.]   As the  Maleng   
               court explains:

                 Sexually-explicit materials were originally  
                 excluded from the protections of the First  
                 Amendment because the prevention and punishment  
                                                                       




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                 of lewd speech has very little, if any, impact  
                 on the free expression of ideas and government  
                 regulation of the sexually obscene has never  
                 been thought to raise constitutional problems.   
                 ?  The same cannot be said for depictions of  
                 violence: such depictions have been used in  
                 literature, art, and the media to convey  
                 important messages throughout our history, and  
                 there is no indication that such expressions  
                 have ever been excluded from the protections of  
                 the First Amendment or subject to government  
                 regulation.

               A limited application of the  Ginsberg  case to speech  
               regarding sexual conduct is consistent with the  
               Supreme Court's statement in  Erznoznik v. Jacksonville   
               that:

                 speech that is neither obscene as to youths nor  
                 subject to some other legitimate proscription  
                 cannot be suppressed solely to protect the  
                 young from ideas or images that a legislative  
                 body thinks unsuitable for them.  In most  
                 circumstances, the values protected by the  
                 First Amendment are no less applicable when the  
                 government seeks to control the flow of  
                 information to minors.   [  422 U.S. 205, 213-14  
                 (1975).]  

               Under the reasoning offered in the above cases, the  
               speech that would be restricted under this bill would  
               not be deemed obscene, even for minors, and would  
               therefore be considered "protected speech."  

               Nevertheless, one of the two definitions offered in AB  
               1179 for "violent video games" directly follows the  
                Ginsberg  obscenity standard, and applies the terms of  
               the obscenity definition to video games where certain  
               violent acts may be committed by a game character.  It  
               is questionable whether this definition is appropriate  
               under existing law.  Neither the  IDSA  or the  Maleng   
               decision is binding in California, but those decisions  
               and the precedent upon which they rely may be  
               persuasive to a California court.

                                                                       




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               SHOULD AB 1179'S DEFINITION THAT MIRRORS THE OBSCENITY  
               DOCTRINE BE RETAINED, DESPITE CASES HOLDING THAT  
               "OBSCENITY" RELATES ONLY TO SEXUAL CONDUCT?

              b)   Whether the proposed restrictions are necessary and  
               narrowly tailored to serve a compelling state interest  
                

               When speech is deemed "protected speech," any  
               restrictions on its content must be "necessary to  
               serve a compelling state interest," and "narrowly  
               tailored" to achieve that interest.  [  Republican Party  
               of Minn. v. White  (2002) 536 U.S. 765, 774-75.]  This  
               standard has been applied by courts considering  
               similar violent video game restrictions for minors.   
               [See  IDSA  , 329 F.3d at 958;  Maleng  , 325 F.Supp.2d at  
               1186.]  

               Courts have repeatedly recognized that a state has a  
               legitimate and compelling state interest in  
               safeguarding both the physical and psychological  
               well-being of minors.  [  Sable Comm., Inc. v. FCC   
               (1989) 492 U.S. 115.]  The appropriate questions are  
               therefore whether the bill's proposed restrictions on  
               the sale and rental of violent video games are (1)  
               necessary and (2) narrowly tailored to achieve the  
               stated interest of safeguarding minors.

                i.   Whether the proposed restrictions are necessary  

                 The author argues there is clear evidence that  
                 violent video games increase children's aggressive  
                 behaviors, thoughts, and attitudes, and that they  
                 jeopardize children's psychological health by  
                 decreasing emotional empathy and pro-social helping  
                 behaviors.  

                 Opponents note that the courts which have evaluated  
                 similar statutes found the restrictions proposed in  
                 those measures to be unsupported by scientific  
                 evidence.  The court in  Kendrick  noted that there  
                 was no demonstrated causal connection between the  
                 playing of violent video games and any violent acts,  
                 and found there was no evidence that the interactive  
                 character of the games -- rather than images which  
                                                                       




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                 might be equally evident in movies or other  
                 unrestricted materials -- that caused the negative  
                 impacts.  [244 F.3d at 578-79.]  In  IDSA  , the court  
                 discounted a study which indicated only that "more  
                 aggressive thoughts are reported and there is  
                 frequently more aggressive behavior" after minors  
                 played violent video games, when there was no  
                 further evidence of actual psychological damage.   
                 [329 F.3d at 958-59.]

                 The author asserts that the studies relied upon here  
                 demonstrate both a causal connection to acts of  
                 violence and actual psychological damage.  In  
                 contrast, opponents assert that the studies relied  
                 upon are largely the same as the studies rejected by  
                 the courts, without any new primary or experimental  
                 research.  Opponents also argue that the  
                 restrictions are not "necessary" because any impact  
                 on a child caused by video game violence will be  
                 very small in comparison to other factors that may  
                 contribute to aggression, including real-world  
                 interactions and exposure to other types of media  
                 violence. It is unclear whether the evidence upon  
                 which this bill is based would support a finding  
                 that the proposed statutory restriction is  
                 necessary.

                 DOES THE EVIDENCE SUPPORT A LEGISLATIVE FINDING THAT  
                 THE PROPOSED RESTRICTIONS ARE NECESSARY?

                      ii.   Whether the proposed restrictions are  
          narrowly tailored 

                 In support of a finding that the proposed  
                 restrictions are narrowly tailored to achieve the  
                 stated interest, the author notes that the  
                 definition of "violent video game" (actually one of  
                 two definitions, the first being the obscenity  
                 definition discussed in Comment 2(a)) is limited to  
                 violence that is "heinous, atrocious, and cruel,"  
                 and is perpetrated against a game character that is  
                 human or has "human-like characteristics." 

                 Although these limitations would undeniably narrow  
                 the statute's scope, it is not clear that the  
                                                                       




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                 narrowing effect would effectuate the stated purpose  
                 of the statute.  The statute is designed to address  
                 studies which indicate that playing violent video  
                 games may have undesirable physical and mental  
                 effects on minors.  But it is not evident that these  
                 studies identify "heinous, atrocious, and cruel"  
                 violence as causing the significant negative effects  
                 that the bill attempts to address.  

                 The author contends that the "heinous, atrocious,  
                                                              and cruel" limitation is offered in response to the  
                  Maleng  court's statement that the speech  
                 restrictions imposed by that statute were overly  
                 broad because the definition of "violent video  
                 games" was "expansive and d[id] not attempt to  
                 regulate the dissemination of video games on the  
                 basis of the extremity of the violence portrayed."   
                 [325 F.Supp.2d at 1190.]  However, the  Maleng  court  
                 was evaluating its statute based on experts'  
                 testimony asserting "that 'ultra-violent' video  
                 games cause aggression and must be regulated in  
                 order to further the state's compelling interests."   
                 [  Id.  at 1189.]  Here, the studies used to justify  
                 the state's compelling interests do not apparently  
                 relate to "ultra-violent" video games or video games  
                 that feature "heinous, atrocious, and cruel"  
                 violence.  It is unclear what types of "violent"  
                 video games were used in the studies referenced by  
                 the author, and the author's comments sometimes  
                 treat the violent video games discussed in the  
                 studies as interchangeable with the M-rated games  
                 which are currently subject to industry  
                 self-regulation.  

                 Because there does not appear to be a direct  
                 correlation between the proposed limitations and the  
                 negative effects discussed in the studies relied  
                 upon by the author, it is unclear that the proposed  
                 definition of "violent video game" is narrowly  
                 tailored to address the state's compelling  
                 interests, rather than simply tailored for the sake  
                 of a more "narrow" statute.

                 WOULD SOME OTHER STANDARD MORE EFFECTIVELY IMPOSE  
                 LIMITATIONS NARROWLY TAILORED TO ADDRESS THE  
                                                                       




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                 COMPELLING INTERESTS AT STAKE?

           3.Opponents contend industry self-regulation is a less  
            restrictive alternative  
           
             Opponents argue that existing laws and regulations are  
            further evidence that the bill's proposed restrictions  
            are not "narrowly tailored" to address a compelling state  
            interest, since those measures are "less restrictive  
            alternatives" that may be used to address the same  
            compelling state interests.  Specifically, opponents note  
            that the Entertainment Software Rating Board (ESRB)  
            already assesses and rates video games based on their  
            content and age-appropriateness, and that members of the  
            industry have voluntarily submitted to the restrictions  
            of these ratings.  Opponents note that the ESRB's rating  
            system has been praised by the Federal Trade Commission  
            (FTC) as the most comprehensive rating system of the  
            three entertainment industries.  

            The ESRB rating system uses six age-based ratings and  
            about 30 content descriptors to provide information about  
            the content of the game.  The six age-based ratings are:
               EC or Early Childhood-suitable for ages 3 and older.   
               Games contain no material that parents would find  
               objectionable.

               E or Everyone-suitable for ages 6 and older.  Games  
               may contain minimal cartoon, fantasy, or mild violence  
               and/or infrequent use of mild language.

               E10+ or Everyone 10 and Older-suitable for ages 10 and  
               older.  Games may contain more cartoon, fantasy or  
               mild violence, mild language, and/or minimal  
               suggestive themes.

               T or Teen-these games may be suitable for ages 13 and  
               older.  Games may contain violence, suggestive themes,  
               crude humor, minimal blood and/or infrequent use of  
               strong language.

               M or Mature-suitable for ages 17 and older.  Games may  
               contain mature sexual themes, more intense violence,  
               and/or strong language.

                                                                       




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               AO or Adults Only-suitable for adults only.  Games may  
               include graphic descriptions of sex and/or violence.   
               These products are not intended for persons under the  
               age of 18.

            Each video game rated by the ESRB has the age-based  
            rating symbol printed on the front and back of the game  
            box, and the back of the box displays content descriptors  
            that may explain why the game received the rating it did.  
             Examples of the content descriptors include "animated  
            blood," "comic mischief," "mild violence," "intense  
            violence," "strong language," "suggestive themes,"  
            "strong sexual content," "drug reference" and "use of  
            drugs."

            The author acknowledges that the ESRB rating system is  
            currently in place, but argues that its implementation  
            has been unsatisfactory.

               Recent studies show that the voluntary rating and  
               enforcement system implemented by self-regulatory  
               associations or entertainment producers have had  
               limited success on decreasing youth access to  
               Mature (M) rated video games.  In a phone survey  
               of clerks at forty-six stores in 12 states, only  
               76% of respondents say they understand the  
               ratings they are supposed to enforce and only  
               half of the stores reported training employees in  
               the use of the ratings ?  In many of the stores  
               that have reported they have training, further  
               questioning revealed the "training" only included  
               installing cash register prompts.  Eight[y]-nine  
               percent (89%) of stores surveyed said they now  
               have policies restricting the sale of M-rated  
               games to those under seventeen ?  Despite this,  
               clerks still sell these video games to under-aged  
               youth.  During 2004, the National Institute on  
               Media and the Family had children between the  
               ages of seven and fourteen attempt to purchase  
               M-rated games in thirty-five stores.  Youth  
               succeeded 34% of the time.  While the overall  
               purchase rate was 34%, boys as young as seven  
               were able to buy M-rated games 50% of the time.   
               A nationwide undercover survey of stores  
               completed by the Federal Trade Commission in 2003  
                                                                       




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               corroborated these findings.  In this study, 69%  
               of unaccompanied 13 to 16-year-olds purchased  
               M-rated games and only 24% of cashiers asked the  
               youth's age.

            Opponents respond that between 85% and 90% of retailers  
            have recently implemented programs to prevent the sale  
            and rental of M-rated games to minors.  They argue that  
            this new program will help to reduce improper sales of  
            M-rated games to minor, and note that recent studies  
            indicate sales of M-rated and AO-rated games to minors  
            were prevented 66% of the time this year, an improvement  
            from 45% the year before.

            Opponents also argue that limitations on who can sell or  
            rent video games is not the only way to successfully  
            limit minors' access to M-rated games, since information  
            on the ESRB rating system is readily available to  
            parents.  In addition to the information included on the  
            box of each video game, last year's AB 1793 (Yee) created  
            a statutory requirement for video game retailers to  
            prominently post signs advising consumers about the  
            rating system, and to provide information explaining the  
            rating system upon request.  Opponents argue that making  
            this information available to parents will play a large  
            role in protecting minors from exposure to violent video  
            games, citing FTC statistics which indicate that parents  
            are involved in 8 out of 10 video game purchases or  
            rentals.  

           4.Whether the terms of the bill are unconstitutionally  
            vague  

            Opponents argue that the terms of the bill fall short of  
            the level of clarity required by the First Amendment.   
            Under  Grayned v. City of Rockford  , a legislative  
            enactment must "give the person of ordinary intelligence  
            a reasonable opportunity to know what is prohibited, so  
            that he may act accordingly."  [408 U.S. 104, 108.]  

            Opponents challenge the bill's application to "characters  
            with substantially human characteristics," arguing that  
            this term could apply to aliens, talking beasts, robots,  
            cartoon-type characters, and a broad range of other video  
            game characters.  Opponents also challenge the language  
                                                                       




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            used to define "heinous, atrocious, and cruel" violence.   
            Those definitions require findings, for example, that  
            virtual victims were "conscious" of specified abuse or  
            that players had a specified intent or state of mind with  
            respect to a virtual killing.  Opponents argue that it is  
            unclear how a virtual character could be found to be  
            "conscious of abuse" or how it could be found that a  
            video game player "intends to virtually inflict a high  
            degree of pain" or "relishes the virtual killing or shows  
            indifference to the suffering of the [virtual] victim."   
            Determinations of consciousness and intent are clearly  
            appropriate in assessing the severity of violent acts  
            committed by (and against) real people.  But those terms  
            are more unwieldy and difficult to apply in the context  
            of virtual characters or players whose ultimate "intent"  
            is simply to progress through the levels of a computer  
            game.

            The Assembly Judiciary Committee analysis noted that the  
            terms discussed above, which define "heinous, atrocious,  
            and cruel" conduct, survived a vagueness challenge in a  
            death penalty case.  [Citing  United States v. Jones  (5th  
            Cir. 1998) 132 F.3d 232.]  That holding may not resolve  
            the vagueness issues discussed above, however, because  
            those questions relate specifically to problems that stem  
            from the difficulty of applying those standards to  
            virtual characters in a video game setting.

            In discussing vagueness issues for another violent video  
            game statute, the  Maleng  court stated:

               The problem is not, as defendants suggest, that a  
               retail clerk might be unaware of the contents of  
               a particular game ?  The real problem is that the  
               clerk might know everything there is to know  
               about the game and yet not be able to determine  
               whether it can be legally sold to a minor.  The  
               effects of such vagueness are particularly  
               troublesome where First Amendment rights are  
               implicated.  Not only is a conscientious retail  
               clerk (and her employer) likely to withhold from  
               minors all games that could possibly fall within  
               the broad scope of the Act, but authors and game  
               designers will likely 'steer far wider of the  
               unlawful zone ? than if the boundaries of the  
                                                                       




          AB 1179 (Yee)
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               forbidden area were clearly marked.'  

            [325 F.Supp.2d at 1191.]

            These vagueness concerns may be further intensified by  
            the potentially broad scope of responsibility for  
            determining what video games are "violent" under the  
            bill.  AB 1179 would require every violent video game  
            that is imported into the state for retail sale to be  
            appropriately labeled, and would impose liability up to  
            $1,000 for violations of this requirement.  The author  
            indicates that the requirement is intended to put the  
            responsibility on manufacturers to determine what video  
            games are violent.  But it is possible that there would  
            also be situations where large retailers want to import  
            games from an out-of-state store to an in-state store for  
            retail purposes.  In such cases, it is unclear whether  
            the responsibility for labeling would fall on the  
            manufacturer (who may not have intended the game for sale  
            in California) or the retailer.  A wide variety of  
            entities might therefore be responsible for making the  
            difficult assessment of what video games are restricted  
            under the statute. 

            As discussed below in Comment 5, opponents indicate that  
            the labeling required under this bill would not be  
            implemented on a national scale.  Indeed, nation-wide  
            labeling based on the AB 1179 standard would not be  
            permitted to the extent that legislation in other states  
            required labeling in accordance with different "violent  
            video game" definitions.  

            ARE THE DEFINITIONS IN THE BILL TOO VAGUE TO PROVIDE A  
            REASONABLE OPPORTUNITY FOR MANUFACTURERS AND RETAILERS TO  
            DETERMINE WHAT GAMES ARE RESTRICTED?

           5.Opponents say the bill would be unreasonably burdensome  
            to implement  
           
             The California Retailers Association (CRA) contends that  
            this bill's requirement of additional labeling would  
            place extreme and unreasonable burdens on retailers.  CRA  
            asserts that implementation problems would arise because  
            this labeling would have to be California-specific, while  
            the voluntary ESRB labeling system would continue to be  
                                                                       




          AB 1179 (Yee)
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            applied nationwide.  Although the author argues that AB  
            1179's definitions may ultimately be integrated with the  
            ESRB rating criteria, it is unclear that any kind of  
            integration would be possible when Illinois has enacted  
            violent video game restrictions that rely on a different  
            definition.  In order to do state-specific labeling, the  
            CRA maintains that retailers would be required to change  
            their software programs to account for different labels  
            on identical games to be sent to different destinations,  
            and that new UPC (Universal Product Codes) would have to  
            be assigned to violent video games that would be sent to  
            California.  

           6.Opponents note that government regulation has not proven  
            necessary for other entertainment industries  

            Opponents point out that other entertainment industries,  
            such as the motion picture, recording, and publishing  
            industries, are not subject to the sort of statutory  
            restrictions this bill would impose on the video game  
            industry.  Notably, the motion picture industry has been  
            voluntarily self-regulated for approximately 40 years.   
            Given the apparent success of other self-regulating  
            industries, opponents to the bill argue that current  
            self-regulating mechanisms for video games should be  
            given an opportunity for similar success.    

            Some opponents note an additional concern that the  
            regulations proposed in the bill would set a precedent  
            for imposing regulations on violent speech in other  
            entertainment industries.  Indeed, some supporters of the  
            bill readily agree that the bill's proposed regulations  
            on violent video games should be expanded to movies,  
            songs, and books which contain violent images or  
            descriptions that could be harmful to children.  Given  
            the broad scope of free speech interests associated with  
            music, movies, books, and video games, opponents argue  
            this bill could be the start of a journey down the  
            slippery slope toward endangering important First  
            Amendment rights. 

           7.Opponents argue the bill could chill video gaming  
            development  
           
             Opponents maintain that the proposed regulation would  
                                                                       




          AB 1179 (Yee)
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            subject video game developers to a chilling effect,  
            asserting that:

               Game creation is a massively complex mix of science  
               and art.  From software engineers to script writers to  
               animators to music composers, there is a great need  
               for talented, creative and educated individuals that  
               must work in unison to see a game become a reality.   
               In step with the growing need for talent, universities  
               and colleges-over 50 just in the state of  
               California-are implementing game development courses  
               and degree programs.  

            Opponents are concerned that the regulations proposed by  
            this bill would "stagnate this important cultural medium  
            and its future evolution."  

          8.Whether 17 or 18 is the appropriate age of minority  

            The restrictions proposed in AB 1179 would be applied to  
            minors under 18 years old, but the previous bill, AB 450,  
            would have applied to minors under 17 years old.   
            Opponents argue that the age of majority should be  
            returned to 17 years old, since restrictions currently  
            placed on movies and music both define 17 as the age of  
            majority.  Opponents also note that the industry's  
            self-imposed regulation of video games restricts M-rated  
            games to people 17 years old and older. 

            The author's staff indicates that the author selected 18  
            as the age of majority in this bill mainly for ease of  
            implementation purposes.  The author's staff notes that a  
            recently enacted Illinois statute would restrict access  
            to violent video games by minors under 18 years old, and  
            suggests that manufacturers may have an easier time  
            implementing various state statutes on a nationwide level  
            if they can use the same "18" label.  In practice,  
            however, interchangeable labels would only be of limited  
            use because the definition of violent video games in  
            Illinois is significantly different from the definition  
            proposed in this bill.

            IF APPROVED, SHOULD THE RESTRICTION ON ACCESS FOR MINORS  
            BE SET AT 17 OR 18 YEARS OLD?

                                                                       




          AB 1179 (Yee)
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           9.Additional implementation issues  

            The author's staff acknowledges that certain logistical  
            concerns may remain to be resolved.  Specifically, his  
            staff acknowledges that it may be appropriate to delay  
            the effective date of the bill to allow for an evaluation  
            of what games should be restricted under the bill, and to  
            allow for the labeling of such games.  His staff also  
            acknowledges that it may be appropriate to "grandfather  
            in" the video game stock that is already held in  
            California retail outlets.  The grandfather clause  
            contemplated by the author may not address all situations  
            where grandfathering may be appropriate.  In particular,  
            it would not apparently protect secondary markets such as  
            Goodwill shops that resell preexisting stock from other  
            retail outlets, or that sell used games.

            SHOULD PROVISIONS BE MADE TO DELAY THE EFFECTIVE DATE OF  
            THE BILL, AND TO GRANDFATHER IN EXISTING STOCK AND USED  
            GAMES THAT MIGHT BE RESOLD? 

           10.Committee options  

            Because this bill is a gut-and-amend bill that is being  
            heard under Senate Rule 29.10, it may not be amended in  
            committee.  It may be passed out of committee without  
            amendment, it may be sent to the Floor without  
            recommendation, or it may be held as a two-year bill.

          Support:  Alliance for Children of San Mateo and Santa  
                 Clara Counties; California Alliance Against Domestic  
                 Violence; California Commission on the Status of  
                 Women; California State PTA; California Psychiatric  
                 Association; California Psychological Association;  
                 California State Conference of the National  
                 Association for the Advancement of Colored People;  
                 Capitol Resource Institute; City of Norwalk  
                 Department of Public Safety; Cruz Bustamante;  
                 dramaworks; Feather River College; Girl Scouts,  
                 Junior Leagues of California State Public Affairs  
                 Committee; Maidu Cultural and Development Group;  
                 Muir Trail Council; NAACP Legal Defense and  
                 Educational Fund, Inc.; Northern California Society  
                 of Public Health Education; Q Entertainment; Parents  
                 Television Council; Santa Clara County After School  
                                                                       




          AB 1179 (Yee)
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                 Collaborative; Plumas County Child Care and  
                 Development Planning Council; Plumas Rural Services,  
                 Inc. Domestic Violence Services; Portola CARES  
                 Resource Center; Sierra Valley Even Start Family  
                 Literacy Program; Stanislaus County Children's  
                 Council; Support Network for Battered Women; Sutter  
                 Lakeside Community Services; The Child-Responsible  
                 Media Campaign; Women's Mountain Passages; 66  
                 individuals

          Opposition:  Activision; American Civil Liberties Union;  
                    American Electronics Association; California  
                    Broadcasters Association; California Chamber of  
                    Commerce; California Retailers Association;  
                    Electronic Arts; Entertainment Software  
                    Association; Independent Film & Television  
                    Alliance; Interactive Entertainment Merchants  
                    Association; International Game Developers  
                    Association; Motion Picture Association of  
                    America, Inc.; National Association of Theatre  
                    Owners of California/Nevada; Recording Industry  
                    Association of America; The Media Coalition,  
                    Inc.; TechNet; Video Software Dealers  
                    Association; Wal-Mart; Eight Individuals

                                     HISTORY
           
          Source:  California District of the American Academy of  
                Pediatrics; Common Sense Media; Girl Scout Councils  
                of California [co-sponsors]

          Related Pending Legislation:  AB 450 (Yee), which contains  
                                roughly the same terms as this bill  
                                but limits sales and rentals to  
                                people younger than 17, is on the  
                                Assembly Floor.

           Prior Legislation:  AB 1792 (Yee, 2004), which failed in  
                        the Assembly Committee on Arts,  
                        Entertainment, Sports, Tourism, and Internet  
                        Media, would have prohibited the sale,  
                        rental, or exhibition of violent video games  
                        to minors under 18 years old, defining  
                        "violent video games" as games that (1)  
                        appeal to a minor's morbid interest in  
                                                                       




          AB 1179 (Yee)
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                        violence, (2) allow infliction of serious  
                        injuries on human-like characters in a way  
                        that is especially heinous, atrocious, or  
                        cruel, and (3) lack serious literary,  
                                                                     artistic, political, or scientific value for  
                        minors.

                        AB 1793 (Yee), Chapter 630, Statutes of 2004,  
                        requires video game retailers to post signs  
                        in prominent areas of the retail  
                        establishment to notify customers that a  
                        rating system is available to aid in the  
                        selection of video games, and to make  
                        information explaining the rating system  
                        available on request.

          Prior Vote:  Not relevant.  Bill was gutted and amended.
          
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