U.S. Rep. Joe Baca undeterred by videogames’ First Amendment protection

Videogaming has a cycle of ebbs and flows—there’s a season for a slew of high-profile games for the holidays, a season for late-summer doldrums sprinkled with arcade and indie offerings, and a season for U.S. Representative Joe Baca, Democrat of California’s 43rd District, to introduce unconstitutional legislation mandating that violent videogames carry warning labels.

Okay, not quite—since Congress goes by two-year terms, Working Joe has only introduced one bill every other year or so until this term, plus he gave it a rest for the 109th Congress (2005-2006). But for the other five Congressional terms of the last decade or so, Baca has doggedly sponsored some form of legislation concerning electronic games and their supposed threat to the youth of America. For those of you keeping score at home, that’s H.R. 4645 in the 107th Congress, H.R. 669 in the 108th Congress, H.R. 2958 in the 110th Congress, H.R. 231 in the 111th Congress, and H.R. 400 and H.R. 4204 in the current 112th Congress.

Baca’s focus has evolved somewhat: in 2002, when he was pushing the Protect Children from Videogame Sex and Violence Act, the legislation focused on completely prohibiting the sale or rental of adult videogames with content such as illegal drugs, aggravated assault or general dismemberment to minors, enforced by a $1,000 fine. Thirty-five Representatives co-sponsored that bill. The 2003 version got into even more specific language for terms like “graphic violence,” presumably to avoid charges that the legislation was unconstitutionally vague. It garnered 43 co-sponsors. 

After giving it a rest for the 109thCongress, he proposed legislation (“Children Protection from Videogame Violence and Sexual Content Act”) directing the Federal Trade Commission and the Government Accountability Office to research “whether the [ESRB] ratings system results in the exposure of children to excessive violence and sexual content” and “the impact of videogames on the mental stability and growth of children and young adults,” respectively. For the last two Congressional terms, Baca has introduced legislation, co-sponsored by Republican Frank Wolf of Virginia’s 10th District, appropriately named “A bill to require certain warning labels to be placed on videogames that are given certain ratings due to violent content.” Those labels would be applied to any game rated by the ESRB except for “Early Childhood” titles. For the current 112th Congress, the duo went ahead and introduced the bill twice, once for each session.

Maybe the lack of a snappy title has something to do with the precipitous drop in support from Baca’s earlier efforts. The 2009 version attracted the support of only five Representatives, and the 2011 and 2012 editions only seem to be supported by Frank and Joe so far.

A dearth of enthusiasm from Baca and Wolf’s House colleagues might also stem from the fact that the bill is almost certainly unconstitutional. Haven’t Baca and Wolf heard of Brown v. EMA, the 2011 Supreme Court case that finally established videogames as protected expression? Justice Antonin Scalia, writing for the Court, faulted the underinclusiveness of the California law requiring labels and fines for videogames and not other media containing violence. None of the proposed bills address this shortcoming. But it’s a little weirder than that. Last year, before Brown v. EMA was decided, the proposed label read: “WARNING: Excessive exposure to violent videogames and other violent media has been linked to aggressive behavior.” This year’s model strikes out “and other violent media,” singling out videogames not only for labeling, but also for identification as violent.

If anything, it looks like the latest version of Baca and Wolf’s legislation is even less constitutional than before. Of course, it also doesn’t really make any sense and even if it were enacted as legislation, you’d probably never see a label. The Electronic Software Ratings Board is a voluntary industry organization, not a government agency. If ESRB guidelines were given the weight of law and were accompanied by a prominent logo decrying the violent content in videogames, the ESRB would probably stop issuing ratings and the industry would go to another standard. There’s also a huge overinclusiveness problem with the labels as proposed: Not all games rated above Early Childhood are given ESRB content descriptors including violence, and many games with some violent content do not contain the kind of violent content cited in studies linking aggressive behavior and videogames. But even those studies, as Scalia helpfully summarizes in Brown v. EMA, “have been rejected by every court to consider them.” As bona-fide First Amendment-protected media, any legislation proposing to compel private actors to advertise a certain viewpoint (i.e., the link to aggressive behavior) must be rigorously supported by scientific data and consensus.

The vague wording of the label gives Baca and Wolf some wiggle room—that passive sentence structure lets violence and videogames be linked without ever specifying what’s doing the linking. After all, it’s certainly true that aggressive behavior in youth and violence in videogames have been linked in plenty of unsuccessful legislation. Somehow, I don’t think that explanation is going to go very far in court, where legislation like this, if it were ever passed, would certainly end up. Just like previous efforts, the latest attempt by Joe Baca to introduce government control over electronic games fails to address the constitutional issues inherent in such an endeavor.

In short, this bill, proudly following in the tradition of its predecessors, ain’t going nowhere. Outside some outrageously extreme election year hijinks, both iterations of the videogame labeling bill will die an unremarkable death in committee.