The Journal of The DuPage County Bar Association

Back Issues > Vol. 27 (2014-15)

Violent Video Games, the First Amendment, and Child Custody
By Christopher J. Maurer

We recently purchased an Xbox game system, and my twelve-year-old son asked me if I would buy him the game Grand Theft Auto 5. I told him I would check out the reviews for the game to see if it was appropriate, and I saw in his face a look of soul crushing despair — as if his hopes and dreams had just been dashed against the rocks of paternal prudery. Based on his reaction, I had a hunch my investigation would not lead to a decision in his favor.

I was right. We saw a copy of the game at a local retailer and scanned the back of the packaging:

ESRB Rating Category: “M” for Mature 17+ Content Descriptors: Blood and Gore, Intense Violence, Mature Humor, Nudity, Strong Language, Strong Sexual Content, Use of Drugs and Alcohol.

My son saw my face setting like concrete into a disapproving scowl and acted quickly with a torrent of explanations about how he could still play the game while avoiding all of the “inappropriate” areas within the game. Having had the brain of a twelve-year-old boy once myself, I promptly laughed in his face. After nixing Grand Theft Auto 5 from this year’s Christmas list, I began to consider video games with mature themes from the perspective of attorneys who practices in the area of child custody, both as counsel for a party and as Guardians ad Litem appointed by the court to act on behalf of children. What role, if any, have legislatures or courts taken to limit a child’s access to video games that are not age-appropriate? Who should decide what constitutes an age-appropriate game for a child? What impact, if any, should a parent’s philosophy toward violent or sexually explicit video games have on a Guardian ad Litem’s recommendations or a judge’s decisions on custody and visitation? The United States Supreme Court has considered violent video games from a First Amendment perspective in Brown v. Entertainment Merchants Association1, and although the domestic relations laws of Illinois are silent on the subject, a parent’s exposure of a child to such games could arguably be relevant to a court’s determination of that parent’s custody or visitation rights2.

Brown v. Entertainment Merchants Association The year was 2005, and in a fit of irony, then Governor Arnold Schwarzenegger — a man with the highest on screen kill-count in Hollywood3 — signed into law California Assembly Bill 1179 (“the Act”), which prohibited the sale of violent video games to minors4.

The Act defines violent video games as those “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being” if those acts are depicted in a way that:

1. A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors;

2. Is patently offensive to prevailing standards in the community as to what is suitable for minors; and

3. Causes the game, as a whole, to lack serious literary, artistic, political, or scientific value to minors.”

Punishment to sellers violating the law was a $1,000.00 fine per offense.

As to be expected, the entertainment software industry cried foul and filed a case seeking to enjoin enforcement of the Act on First Amendment grounds before the United States District Court of the Northern District of California in the case of Video Software Dealers Association v. Schwarzenegger.5 By the time the case reached the Unites States Supreme Court, California had a new governor and the software industry video software dealers had a new name, so that the case became Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011).

The Supreme Court held that the Act violated the First Amendment. In so holding, the court found that video games (like books, games and movies) constitute “speech” that is entitled to First Amendment protection; that because the Act is a content-based restriction of protected speech, it must pass strict scrutiny by being both (1) justified by a compelling government interest and (2) narrowly drawn to serve that interest. The Supreme Court found that because the State could not show a direct causal link between violent video games and harm to children, it could not establish a compelling government interest.

The ESRB The end result of the Brown v. Entertainment Merchants Association ruling is that a state cannot prohibit the sale of violent video games to minors. But to dispel any visions of Little Johnny shelling out his allowance to some seedy character at the local game shop in exchange for a copies of Bulletstorm and Postal 2, Justice Antonin Scalia, the author of the majority opinion, pointed out that the video game industry already has this issue under control by way of the Entertainment Software Rating Board (the ESRB).

The ESRB, is a self-regulatory organization set up by the entertainment software industry to assign ratings to video games to help parents pick age-appropriate games for their children.

The Rating Categories include Early Childhood (EC), Everyone (E), Everyone age 10 and up (E10+), Teen (T), Mature (M), to Adults Only 18+ (AO)6. Within these categories, there are Content Descriptors run the gamut from lighthearted fun (“Comic Mischief ”) to horrific crimes such as murder and rape (“Blood and Gore” and “Sexual Violence”)7.

Despite Justice Scalia’s confidence in the video game industry’s to self regulate, it is important to note that the ESRB itself readily admits that it “has no ability to enforce its ratings at the retail level”8. While the ESRB proudly points out that the Federal Trade Commission found that national retailers refused to sell M-rated video games underage customers 87% of the time9, what this really suggests is that 13% of minor children attempting to purchase age-restricted games with graphically violent and/or sexual content are able to do so without their parents’ knowledge or consent.

Custody and Visitation Considerations What, if anything, does the Brown v. Entertainment Merchants Association case mean for attorneys, judges, evaluators and Guardians ad Litem in cases involving child custody and visitation?

Section 602 of the Illinois Marriage and Dissolution of Marriage Act directs the courts to determine custody in accordance with the best interest of the child, and provides a list of factors the court should consider in making that determination. Although none of the listed factors refer to a child’s video-game usage, several of them could be brought into play if the evidence of a case established that one parent allowed the child to play or be exposed to age-inappropriate games or allowed a child to play video games for unreasonably large blocks of time to the exclusion of other worthwhile developmental activities.

For example, Section 602 (a)(3) looks at the interaction and interrelationship of the child with his parent or parents, his siblings and any other person who may significantly affect the child’s best interest10. If a party’s parenting time with the child consists primarily of marathon video game sessions with very little true “interaction”, it could weaken that party’s position in a custody dispute. More to the point, Section 602 (a)(5) considers the mental and physical health of all individuals involved. While Justice Scalia did not find the competing psychological studies persuasive enough to establish a compelling government interest, it is conceivable that a custody evaluator or a guardian ad litem could find and assert that a parent who is routinely exposing a young child to violent or age-inappropriate video games is harming the child’s mental health and is not acting in the best interest of the child.

With respect to visitation, Section 607 of the Illinois Marriage and Dissolution of Marriage Act grants noncustodial parents reasonable visitation unless a court finds, after a hearing, that visitation would endanger seriously the child’s physical, mental, moral or emotional health11. Again, it is conceivable that an evaluator or guardian ad litem could opine, and a court could subsequently find, that a parent’s exposure of a child to age-inappropriate video games endangers the child, as a result of which his or her parenting time must be somehow restricted.

But would such a visitation restriction run afoul of the holding in Brown v. Entertainment Merchants Association? One could argue that if a state legislature cannot restrict a retailer from selling a violent video game to a child, then a state court cannot restrict that same child’s parent from allowing the child to play that same video game.

Drafting Considerations One way to address the issue is through drafting appropriate terms into custody judgments that are agreed upon by the parties. This may be considered micromanaging on what most people see as a trivial matter, and in the vast majority of cases, that is probably correct. But those who handle domestic relations cases with any regularity know that what is trivial to one parent can be profoundly important to another. If our clients’ parenting philosophies prompts them to shield their children from mature subject matter, we as attorneys should support them in that regard through creative drafting.

Because of the variety of potentially “age-inappropriate” electronic materials that exist, both passive (movies and videos) and interactive (games and apps), it may make sense to use more generalized language that encompasses all forms electronic entertainment. One way to structure such a provision would be to use prohibitive language, such as:

“Neither parent shall allow the child(ren) to use, play, watch or be exposed to age-inappropriate movies, games or other electronic entertainment, based on ratings set forth by the industry standards of ageappropriateness for such entertainment, including but not limited to the Entertainment Software Ratings Board (ESRB), or the Motion Picture Association of America (MPAA).”

An alternative would be to use positive or instructive language, such as:

“Each parent shall ensure that the child(ren)’s use of and exposure to electronic entertainment such as movies and video games are limited to that which is age-appropriate based on industry established ratings for such entertainment (e.g. ESRB and MPAA).

Given that parties may contract away rights, even those of a constitutional dimension12, these types of provisions included in an agreed custody judgment presumably would be binding and would not risk a First Amendment challenge.

Conclusion Entertainment technology, through TV, computers, game systems, and mobile devices evolves and changes rapidly. This, coupled with the ubiquity of violent content in all mediums of entertainment poses a challenge to parents who believe that exposure to such content is harmful to their children.

Despite the First Amendment protections afforded to sellers of violent video games, as described in the Brown case, the provisions of the Illinois Marriage and Dissolution of Marriage Act still allow the courts to consider a parent’s exposure of a child to violent video games in making custody determinations, assuming competent evidence is presented that such exposure has occurred and is harmful to the child in question.

1 Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011)

2 750 ILCS 5/602; 750 ILCS 5/607

3 www.moviebodycounts.com

4 California Assembly Bill 1179, Chapter 638

5 Video Software Dealers Assn. v. Schwarzenegger, 2007 U.S. Dist.LEXIS 57472 (N.D. Cal. 2007)

6 http://www.esrb.org/ratings/ratings_guide.jsp#rating_categories

7 http://www.esrb.org/ratings/ratings_guide.jsp#descriptors

8 http://www.esrb.org/ratings/faq.jsp#20

9 Id.

10 750 ILCS 5/602(a)(3)

11 750 ILCS 5/607

12 Johannesen v. Eddins, 2011 IL App (2d) 110108, 963 N.E.2d 1061, 1067 (2nd Dist., 2011).

Christopher J. Maurer is an attorney with the law firm of Anderson & Associates, P.C., where he has concentrated his practice in family law for over a decade in DuPage, Cook, Kane, Will and Kendall Counties. Christopher is a member of the DuPage County Bar Association. He is a trained Guardian ad Litem and certified Mediator for the 18th Judicial Circuit, and serves as a member of the DCBA Brief’s editorial board. Christopher received his Juris Doctorate from Loyola University School of Law in 1997 and his Bachelor of Science from the University of Illinois at Urbana-Champaign, College of Communications in 1994.

 
 
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