EMA Calls New York Bill Passed Today “Unconstitutional” and “Ill-Conceived”

Today, the New York Assembly passed Assembly Bill 8696 by a vote of 130-10. What’s it all about? Well, A8696, if signed into law, would bar persons under the age of 17 from purchasing or renting video games that contain depictions of “depraved violence” and “indecent images.” The penalty for violating this law? A Class E Felony, which means the retailer and/or the clerk could face up to four years in jail if convicted. In addition, the bill also requires all video game consoles sold in New York after September 1, 2009 to include parental control mechanism to allow parents to block the console from playing ‘certain content.’

This isn’t the first time we’ve told you about nonsense from the state of New York. This bill is pretty ridiculous, huh? That’s what the Entertainment Merchant’s Association thinks, as they took aim at the assembly, calling th bill “ill-conceived” and “unconstitutional.” The EMA represents around 800 retail stores in New York state that sell and/or rent video games and DVDs. EMA President Bo Andersen said, “This bill is ill-conceived and unconstitutional. The proposal to jail retailers and clerks for up to four years for selling certain video games to persons under age 17 is apparently based on misunderstandings about what retailers are doing currently. The requirement that video game consoles include parental controls ignores the fact that the new generation of consoles include them already. Finally, nine similar proposals that have been enacted around the nation in recent years have all been blocked by federal courts on First Amendment grounds. For such an ill- conceived and unconstitutional law, ignorance is no excuse.”

What’s the truth?

In point of fact, pretty much every mass market seller of video games and other media has implemented policies that keep minors from buying Mature rated games. Rental stores have also jumped on board by not allowing rentals or purchases of M-rated games to kids under 17 without parental consent. Keep in mind that no major retailer stocks or sells games rated AO, or Adults Only. But do these policies work?

According to the Federal Trade Commission survey released April 12, children the FTC sent into video game stores to buy Mature-rated games were turned down 58% of the time. When this program was implemented in 2000, that turndown rate was only 16%, meaning that retailers have improved 362%.

As any current console gamer can tell you, the XBox 360, PS3, and Wii all already contain parental controls of the type mentioned in the proposed law. However, sales of older consoles, such as the PS2, and handhelds, like the PSP and DS, would most likely be hit hard.

As to whether this bill is constitutional, Andersen said, “This bill is impermissibly vague. A8696 seeks to apply real- world standards of violence to the fictional and fanciful world of video games, an environment in which they have no meaning. As a result, retailers and clerks will not and cannot know with certainty which video games could send them to jail under A8696. It was depressing to hear members of the Assembly note the constitutional problems with the bill and then state that they were voting for it.”

We don’t know yet whether this bill will be signed into law or not, but I think that it is safe to say that it will face constitutional challenges from many sources, and considering the fate of similar bills in other states, it may even be struck down.

Regardless of what the fate of this bill is, I think that one major issue is being overlooked. The majority of minors playing ‘M’ rated games are receiving them from their parents. Now, the ESRB is working hard to make parents more aware of their rating systems, and what they mean, but some parents just don’t take the time to find out what they are buying their kids. This is the root of the problem, and it starts at home, not with the video game industry, and certainly not with the retailer.

The fact is this: Until parents step up and take responsibility for what their kids are playing, and until those parents make the effort to educate themselves on the games their kids want to play, there will always be an avenue for kids to get their hands on ‘M’ rated games. In fact, we all know that completely stopping the flow of ‘M’ rated titles to kids is impossible. An older brother buys the game, and his little brother plays along. One parent won’t buy it, but their child can play the violent game at a friend’s house. There’s an infinite number of combinations. It all comes down to parents paying attention to what their kids are doing.