Minors and violent, sexual video games

The Congressional Research Service (CRS) issued a report on Jan. 18 on the constitutionality of limiting minors' access to video games rated M (Mature) or AO (Adults Only). These ratings, which have no legal effect, are given by the Entertainment Software Ratings Board (ESRB), a non-governmental entity established by the Interactive Digital Software Association (ISDA). ESRB's criteria for its M and AO ratings are found on its website:

Titles rated M (Mature) have content that may be suitable for persons ages 17 and older. Titles in this category may contain intense violence, blood and gore, sexual content, and/or strong language.

Titles rated AO (Adults Only) have content that should only be played by persons 18 years and older. Titles in this category may include prolonged scenes of intense violence and/or graphic sexual content and nudity.

The CRS report states that the primary constitutional issue is whether a statutory ban of these videos to minors would violate the First Amendment right of free speech. According to CRS, the U.S. Supreme Court has never ruled on the constitutionality of such a statute, but every lower federal court has found such statutes unconstitutional or issued a preliminary injunction on the likelihood that the statute in question would be found unconstitutional.

The report analyzes the application of First Amendment principles to violent and sexual material and discusses violent and sexually explicit video games decisions. It concludes that for an effective ban, the government would have to present empirical evidence that the games harm minors or cause them to become violent. Even so, because of the vagueness of the M and AO ratings, a law prohibiting video games with these ratings could be found "unconstitutional on its face."

Constitutionality of Proposals to Prohibit the Sale or Rental to Minors of Video Games with Violent or Sexual Content or "Strong Language", CRS report, RL33232
(pdf, 72KB, 15p., from Open CRS)