Free Future

The Freedom to Game

By Gabe Rottman, Legislative Counsel, ACLU Washington Legislative Office at 1:17pm

In 1954, German-American psychiatrist Fredric Wertham published the now infamous Seduction of the Innocent, a book chronicling the supposed harm caused to America's youth by comic books. Wertham's book prompted a wave of hand-wringing around the nation.

Now, we're seeing a new round of the same hysteria directed at video games — old wine in new digital bottles. And, the history of comic book censorship is directly relevant for the contemporary debate over "violent video games."

Wertham took particular aim at the horror and science fiction comics published by Entertaining Comics, or "EC" Comics, as it was popularly called. Although EC was certainly known for pushing the boundaries of the medium in titles like Tales From The Crypt, it also was responsible for some of the most socially conscious work ever to appear in comic books, and it often used the horror and sci-fi genres to address and criticize contemporary racial and sexual mores.

The publication of Seduction of the Innocent opened the door for Congress to start showboating on the issue. Tennessee Democrat Estes Kefauver took the opportunity to convene hearings in front of the Senate Judiciary Subcommittee on Juvenile Delinquency, which in turn led to widespread media coverage of this "crisis."

As with other media, including movies and music, the hearings led the comic industry to effectively self-censor. The industry formed the Comics Code Authority — which soon came (contrary to the original intent of its founders) to review every comic prior to publication, and imposed various limits on content, including a requirement that criminals never be seen to profit from their crimes, and a ban on the words "terror" or "horror" in comic titles.

The pernicious effects of the Comics Code Authority — which was only abandoned in 2011 — were nowhere more obvious than in the treatment of Incredible Science Fiction #33, an EC title. EC owner William Gaines wanted to reprint a "pre-Code" story called "Judgment Day" about an astronaut who travels to a planet inhabited by two "races" of robots, one of which is subjected to institutional bigotry. The punch line of the story, a clear allegory for race relations in the United States at the time, comes in the final panel: the astronaut removes his helmet to reveal . . . he's Black.

The Code administrator objected to that final panel, initially insisting that the race of the astronaut be changed. To his credit, Gaines went to the mat over the issue, telling the administrator (a New York state judge) that he would go to the press if the comic failed to receive Code approval. It got that approval.

But despite that rare victory, the industry code nonetheless led to years of self-censorship and the imposition of a crimped and limited notion of the artistic medium of comic books. The story of Seduction of the Innocent and Comics Code Authority illustrates the danger involved when Congress gets it in its head that a particular art form threatens the wide-eyed innocence of America's youth.

Now it is happening all over again. Earlier this year, Reps. Joe Baca (D-Calif.) and Frank Wolf (R-Va.) introduced H.R. 4204, a bill that would require every video game with a rating from the Entertainment Software Rating Board (ESRB, the equivalent of the Comics Code Authority) above E (for Everyone) to carry the cigarette-style admonition: "WARNING: Exposure to violent video games has been linked to aggressive behavior."

Anyone who plays video games knows that they are a legitimate art form, and the Supreme Court has held as much. They, like movies or music, use the trappings of fiction and the special qualities of the medium to convey sometimes profound social commentary (and to do so, much like "Judgment Day" and similar parables, through allegory and satire). In fact, the special qualities of the medium promise radical advances in the narrative form. Fan disquiet over the ending of the recent BioWare game Mass Effect 3, for instance, led developers to promise they would release additional content possibly changing the ending.

There are three specific major problems with this violent video game labeling bill:

1. The warning the bill would require is simply untrue. As with comic books, there is little evidence that violence in video games has any detrimental effect on gamers. In fact, there is countervailing scientific evidence that video games may actually be beneficial in terms of enhancing gamers' problem solving skills. And, as game developers have pointed out, the interactivity of some modern video games can lead players to more closely associate with game characters, and, even more than with other media, to feel guilt and other complex emotions through control over characters' actions.

2. Any time Congress tries to turn the screws on a mass medium, that medium ends up needlessly self-censoring. In response to the Baca/Wolf bill, however, game developers are certain to pump the brakes in terms of creativity and narrative innovation. This is exactly what happened in the 1950s following the Senate hearings on juvenile delinquency and the industry's creation of the Comics Code Authority. Groundbreaking horror and science fiction comics virtually disappeared, leaving the industry dominated almost exclusively by relatively sterile superhero comics.

3. The video game bill interferes with parental rights and obligations. The warnings will undoubtedly chill video game sales, including sales of titles that have little or no violence at all. A not-insignificant subset of parents will unquestioningly take these warnings to heart, and refuse to purchase games for their children (when, in fact, the unsold games would have no harmful effect). Recall that these warning labels would be required for any title above an E rating (there is only one rating below E: EC, for "Early Childhood"). Numerous games without any violent content, like Little Big Planet or the Sims, will be branded with the cigarette-style warning, pushing sales down and chilling speech.

We at the ACLU already have problems with industry self-regulation (which, in the case of the movie ratings board, for instance, can arbitrarily limit the distribution of certain movies). But the only thing worse than industry self-regulation is congressional interference, both because it directly violates the First Amendment ("Congress shall make no law . . . abridging the freedom of speech") and because it forces the entertainment industries to over-police for fear of congressional preemption.

Parents are the ones who need to make sure that children exposed to mature content have the guidance to appreciate and contextualize what they are seeing or hearing. Congress cannot effectively monitor your children's media consumption, and it shouldn't try. H.R. 4204 would prove a terrible babysitter.

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