The Competitive Enterprise Institute released a report this week entitled, “Politically Determined Entertainment Ratings and How to Avoid Them” by Cord Blomquist and Eli Lehrer. The report examines the ratings systems for movies, comic books, music, television, radio, and video games. Its most basic conclusion is one I agree with: we don’t need the government running ratings systems for entertainment, whether for video games or some other medium. Their more specific conclusions are somewhat problematic. They conclude that “the best ratings systems have evolved in response to market forces.” The report doesn’t offer much support for this conclusion. In part, there is a shortage of examples of ratings systems that haven’t been influenced by the political process and/or threats of government regulation. As best I can tell from the report, satellite radio is the one complete exception where the government played no role in the development of a ratings system. B&L at 18. Music ratings are only a partial exception, since according to the report, several politicians’ wives prompted the creation of music labels. B&L at 13. Blomquist and Lehrer also conclude that as compared to other ratings systems, the one for video games is “the least government-influenced of the lot.” B&L at 24. The report actually suggests otherwise. I'll offer some thoughts on the weaknesses of what is an otherwise interesting report.
To start, compare the comic book and video game rating systems, i.e., the Comics Code and the Entertainment Software Ratings Board (ESRB) (the two systems I know best). Blomquist and Lehrer do not mention the 1948 Comics Code and the associated controversy that led to it. Instead, they start in 1954, claiming that “[t]he battle over comic book content began with Frederic Wertham’s 1954 book Seduction of the Innocent.” B&L at 9. Cf. Amy Kiste Nyberg, Seal of Approval: The History of the Comics Code 23-44 (University of Mississippi 1998) (discussing the controversy over comic book content in the 1940s). Blomquist and Lehrer describe the 1954 Comics Code, which was later modified in 1971 and 1989, as a failure. B&L at 2, 11. But they describe the ESRB’s system as one of the best ratings systems—perhaps the best ratings system. B&L at 1, 24. As mentioned above, the report concludes that government influence impairs the development of rating systems. One was bad (the Comics Code). One was good (the ESRB). To find out why, we need to be clear about how the two systems developed and the level of government involvement in both. There are, however, problems with the authors’ account of the history of these ratings systems.
Blomquist and Lehrer initially suggest the origins of the two industries’ ratings systems differ in terms of government influence. For the comic book industry, they say “the Comics Code came into existence following a series of hearings that made it clear that Congress would impose a code if the industry did not write one.” B&L at 1. For the video game industry, they say the ESRB “emerged almost entirely as a result of voluntary private action.” B&L at 1. Here, it sounds as if there was more government influence over the development of the Comics Code.
At the same time, Blomquist and Lehrer suggest a similarity
in terms of government influence: both industries faced a hostile government
prepared to regulate them, but in both cases, the industries outmaneuvered
Congress by setting up private systems. For the comic book industry, “Had
[Senator Estes] Kefauver pressed ahead, he likely could have convinced the
House and Senate to pass comic book censorship legislation in short order. But
the bigger comic book publishers, working with their distributors, quickly
moved to a system of self regulation[.]” B&L at 9. And for the video game
industry, “[Senator Lieberman’s and Kohl’s video game regulation] bills never
made it out of committee, because the industry took the wind out of Congress’s
sails. After infighting about an industry-wide ratings system, the industry
became galvanized to view a ratings system that involved compromise as
significantly better than one in which they had no input at all, and acted to
create the Electronic Software Rating Board” B&L at 21.
These histories need some refining.
First, unlike in 1993, the members of the 1954 Subcommittee to Investigate Juvenile Delinquency made clear that they were not particularly interested in seeking national regulation. On the first day of the comic book hearings, Senator Robert Hendrickson, the chairman of the subcommittee, said,
“I wish to state emphatically that freedom of the press is not at issue in this investigation. The members of this Senate subcommittee . . . are fully aware of the long, hard, bitter fight that has been waged to achieve and preserve the freedom of the press, as well as the other freedoms in our Bill of Rights which we cherish in
America. We are not a subcommittee of blue-nosed censors. We have no preconceived notions as to the possible need for new legislation.”
Hearings at 1. Senator Kefauver, the most prominent member of the subcommittee and later its chairman, echoed these sentiments. Hearings at 3. (As minor corrections to the report, Blomquist and Lehrer incorrectly state that the comic book hearings occurred in 1955 and that Senator Kefauver was the chairman of the subcommittee when the hearings took place. B&L at 9.)
Although Senator Hendrickson left open the possibility of
legislation, the subcommittee’s main interest was to prompt the industry to
self-regulate (and, probably more importantly, to generate good publicity for
the members). The most thorough study of the Comics Code supports this view. According to Amy Nyberg, whose book Blomquist
and Lehrer reference in their footnotes, “the intention of the  hearings
from the beginning was to force (or frighten) the publishers into adopting a
self-regulatory code like that of the film industry.” Nyberg at 79. Nyberg
adds, “from the beginning, the senators and their staff realized that no
legislation could possibly result from the hearings.” Id. Blomquist and Lehrer
do not provide evidence to counter what was said by the subcommittee members at
the hearings or what has been said by the author of the leading study of the
hearings. Perhaps they are right that the “hearings made it clear that Congress
would impose a code if the industry did not write one,” B&L at 1, but they
need something to back up this claim.
Second, in neither case is it accurate to say or imply that the industries outmaneuvered Congress by creating a private ratings system (though on the day of the 1993 hearings, Senator Kohl did ask one witness if she thought the industry was trying to do so by promising to create one). In both cases, the senators leading the investigations preferred the industry to adopt a private ratings system. The difference is that in 1993, Senators Kohl and Lieberman increased the pressure by actually proposing legislation, but they freely admitted the purpose of the proposals was just to pressure the industry to self-regulate. (Lieberman acknowledged, however, that he would just ban violent video games but for the pesky First Amendment problem. See Notebook, Consumer Electronics, Dec. 6, 1993.) Here is a clip from the conclusion of the 1993 Senate hearings:
In terms of government interference, it is not clear how we
should distinguish the development of the video game and comic book ratings
systems. The level of government interference was, at least at first glance,
quite similar. Indeed, there were more explicit threats of federal regulation
of the video game industry than the comic book industry. Yet the Comics Code
“failed” while the ESRB “does the best job of giving parents the information
they need to make decisions for their children.” Why the different outcomes,
given that both industries adopted private ratings systems in analogous
circumstances? Were there genuine differences in the level of government
interference or influence? Whatever the answer, the report doesn’t provide it.
To support the claim that government interference results in worse ratings systems,
we need information beyond what the report provides.
Further questions are raised by looking at the other ratings
systems discussed in the report. The ratings system produced with the most
government influence appears to be the system for television. For example, the FCC determined who would nominate members of the board that
designed the television ratings system. B&L at 15. While the report is
critical of the V-chip requirement in the 1996 Telecommunications Act, the
authors do not specifically identify anything wrong with the television rating
system. B&L at 14. The authors call for eliminating the V-chip requirement,
but they do not call for eliminating or changing the current television ratings
system. B&L at 16. Given the relatively high level of government
involvement in the television ratings system, shouldn’t that system
be the worst of the lot?
None of this is to suggest government interference
necessarily leads to swell consequences. The problem is that the report doesn’t
provide a clear enough definition of government influence or a clear enough
analysis of how government influence impacts the development of ratings systems.
Plus, other variables besides government influence are obviously at work and affect the
development of these systems, but the report doesn’t clearly identify these
other variables. One likely candidate is related to the era in which a ratings
system was created. The Hays Code for movies and the Comics Code for comic
books were particularly restrictive, but both were created long ago when there
was a greater willingness to restrict content. They are both “relic[s] of a
more prudish era.” B&L at 1. These other variables, whatever they may be,
may matter a lot more than whether the government influences the development of a particular ratings
system. It just isn’t clear.
A further complication to an analysis of the development of
the ESRB is that the 1993 hearings were not just about the government going
after the video game industry. They were also about two competitors, Nintendo and Sega, going after each other.
Although the facts are unclear, some have suggested Nintendo prompted the hearings “in the hope of stirring up trouble for Sega.” Steven L. Kent, The Ultimate History of Video Games
467 (Three Rivers Press 2001). Prior to the hearings, Nintendo was losing market share to Sega,
which was partially attributable to Sega’s edgier games, such as a more graphically
violent version of Mortal Kombat (but probably not due to the corny game Night
Trap, whose sales were likely attributable to the excessive and misleading attention
given to it at the hearings).
The following clip illustrates the tension between Nintendo and Sega. Here, Howard Lincoln, at the time a vice-president of Nintendo, goes after Bill White, a vice-president of Sega.
As one more example of the tension between Nintendo and
Sega, this clip starts with a silly question from Senator Kohl (given how obvious the answer was). After
Bill White responds, Howard Lincoln again attacks Sega.
The report doesn’t discuss how Nintendo’s more positive stance towards the government should affect the analysis, if at all. There is only the passing reference to “infighting,” which I quoted in the fourth paragraph of this post and which may refer to the post-hearings battle over the development of a ratings system. See Kent at 479-80. This does point to another potential problem with government involvement, the potential for one business to use the government for anti-competitive purposes against a competitor, though again, the events leading up to the 1993 hearings are unclear. Id. at 466.
The report does raise an interesting question for supporters of private ratings systems over public ratings systems (like me). The private systems, some good (the ESRB), some not so good (the Comics Code), often arose in response to government influence. Usually, the government exercised some influence. Government ratings system may be a bad idea, but is a government threat of a ratings system a bad idea? There might have been a video games ratings system without government interference, but it might have taken many more years for an industry-wide standard to develop. Consider again the infighting that took place in 1994, even with the government threat hanging over the industry. See Kent at 479-480. So in December 1993, was the right move for an otherwise anti-regulation member of Congress to bluff?