"This law will have a chilling effect on free speech. It will limit First Amendment rights not only for Illinois' residents, but for game developers and publishers, and for retailers who won't know what games can and cannot be sold or rented under this vague new statute," said Douglas Lowenstein, president of the ESA, the trade group representing U.S. computer and video game publishers. "I'm confident the court will affirm our position. There is already a precedent-setting ruling from the Seventh Circuit, which includes Illinois, establishing the unconstitutionality of this type of statute - and the facts, the science, the law, and the U.S. Constitution have not changed since that decision."
Apart from the constitutionality of the law, the industry argues that the bill is bad public policy because it will substitute the government's judgment for parental supervision and turn retailers into surrogate parents in a misguided effort to help Illinois parents. Further, the law would treat computer and video games differently than other constitutionally protected works, such as films, music, and books.
"Today, politics has trumped the First Amendment rights of retailers and their customers," said Bo Andersen, president of the Video Software Dealers Association, a co-plaintiff in the suit. "We are confident, however, that the courts will vindicate those rights. The Governor's embrace of censorship is guaranteed to gain him wide media attention, but will do nothing to help parents make informed choices about the video games their children play. Rather than imposing restrictions that cannot be understood by retailers or sustained legally, the governor should be working with retailers and the video game industry to educate parents about video game ratings and to encourage parents to utilize those ratings."
The ESA contends that supporters of the bill have ignored the effectiveness of industry self-regulation and the already high levels of involvement by parents in deciding what games are right for their children. In fact, the Federal Trade Commission reported that parents are involved in the purchase and rental of games 83% of the time. In addition, ESA research shows that 90% of parents say they always or sometimes pay attention to the video games their children play. In other words, when kids get Mature rated games, it is usually from Mom and Dad.
"It's unfortunate that taxpayers and parents will see critical funds diverted to defend a bill that courts are almost certain to strike down as patently unconstitutional," said Lowenstein. "A year from now, parents will be no better off, and the state will have wasted taxpayers' dollars, time, and energy all for headlines. Headlines may be good for politicians but they don't help parents do their jobs more effectively."
With the strong support of the ESA, leading retailers have already implemented systems to prevent the sale of Mature-rated games to persons under 17. In fact, the National Institute on Media and the Family found last fall, prior to full implementation of these new enforcement systems, that retailers prevented the sale of Mature-rated video games to minors 66% of the time. The ESA highlighted national retailer Best Buy and its recent announcement that it was taking further steps to strengthen its enforcement program.
The ESA noted that in 2004, the average game buyer was 37 years old and the average game player was 30. In addition, of all games sold in 2004, only 16% were rated Mature. "Knowing this," Lowenstein continued, "our industry creates a wide range of content for a diverse consumer audience, just as other entertainment industries do. It's illogical that video games would be treated more harshly than R-rated movies or music CDs with parental warning labels, both of which can be legally viewed and sold to minors. We should be treated the same way as those industries."