CEI Report on Entertainment Ratings

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 [1954] 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). Id. at 466, 478.

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. Lincoln concludes with a call for government involvement.

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?

(H/T GamePolitics)

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Mortal Kombat was ranked one of the "Goriest, Bloodiest, Nastiest Video Games of all time" stating that it was responsible for three things,"1.Mainstream games would now follow MK’s lead and start including fountains of blood, gruesome executions and de-bonings like they were going out of style. 2.A rating scale would now be necessary for home console games going forward. 3.Nintendo would embarrass themselves with their shitty, non-violent port and finally have to sack up and start making games for adults for once.