[Senate Hearing 109-479]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-479
 
   WHAT'S IN A GAME? REGULATION OF VIOLENT VIDEO GAMES AND THE FIRST 
                               AMENDMENT

=======================================================================

                                HEARING

                               before the

                   SUBCOMMITTEE ON THE CONSTITUTION,
                    CIVIL RIGHTS AND PROPERTY RIGHTS

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             SECOND SESSION

                               __________

                             MARCH 29, 2006

                               __________

                          Serial No. J-109-64

                               __________

         Printed for the use of the Committee on the Judiciary


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                       COMMITTEE ON THE JUDICIARY

                 ARLEN SPECTER, Pennsylvania, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
JON KYL, Arizona                     JOSEPH R. BIDEN, Jr., Delaware
MIKE DeWINE, Ohio                    HERBERT KOHL, Wisconsin
JEFF SESSIONS, Alabama               DIANNE FEINSTEIN, California
LINDSEY O. GRAHAM, South Carolina    RUSSELL D. FEINGOLD, Wisconsin
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
SAM BROWNBACK, Kansas                RICHARD J. DURBIN, Illinois
TOM COBURN, Oklahoma
           Michael O'Neill, Chief Counsel and Staff Director
      Bruce A. Cohen, Democratic Chief Counsel and Staff Director
                                 ------                                

   Subcommittee on the Constitution, Civil Rights and Property Rights

                    SAM BROWNBACK, Kansas, Chairman
ARLEN SPECTER, Pennsylvania          RUSSELL D. FEINGOLD, Wisconsin
LINDSEY O. GRAHAM, South Carolina    EDWARD M. KENNEDY, Massachusetts
JOHN CORNYN, Texas                   DIANNE FEINSTEIN, California
TOM COBURN, Oklahoma                 RICHARD J. DURBIN, Illinois
                    Ajit Pai, Majority Chief Counsel
               Robert F. Schiff, Democratic Chief Counsel


                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Brownback, Hon. Sam, a U.S. Senator from the State of Kansas.....     1
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin......................................................     3
Kohl, Hon. Herbert, a U.S. Senator from the State of Wisconsin, 
  prepared statement.............................................   138

                               WITNESSES

Bickham, David S., Research Scientist, Center on Media and Child 
  Health, Children's Hospital Boston, Boston, Massachusetts......    12
Carll, Elizabeth K., Chair, Interactive Media Committee, Media 
  Psychology Division, American Psychological Association, Long 
  Island, New York...............................................     7
Johnson, Hon. Jeff, Assistant Majority Leader, Minnesota House of 
  Representatives, Plymouth, Minnesota...........................    23
Saunders, Kevin W., Professor of Law, Michigan State University, 
  East Lansing, Michigan.........................................    29
Smith, Paul M., Jenner and Block LLP, Washington, D.C............    27
Strickland, Steve, Reverend, Fayette County, Alabama.............     5
Vance, Patricia E., President, Entertainment Software Rating 
  Board, New York, New York......................................    22
Williams, Dmitri, Assistant Professor, Department of Speech 
  Communication, University of Illinois at Urbana-Champaign, 
  Urbana, Illinois...............................................    10

                       SUBMISSIONS FOR THE RECORD

American Center for Law & Justice, Jay A. Sekulow, Esq., Chief 
  Counsel, Stuart J. Roth, Esq., Senior Counsel, Colby M. May, 
  Esq., Director, Washington Office, and Erik Zimmerman, Law 
  Clerk, Washington, D.C., statement.............................    37
Andersen, Crossan R., President, Video Software Dealers 
  Association, Encino, California, statement.....................    57
Bach, Robert J., President, Entertainment and Devices Division, 
  Microsoft Corporation, Redmond, Washington, statement..........    64
Bickham, David S., Research Scientist, Center on Media and Child 
  Health, Children's Hospital Boston, Boston, Massachusetts, 
  statement......................................................    66
Calvert, Clay, Associate Professor of Communications and Law, 
  Pennsylvania State University, State College, Pennsylvania, 
  statement......................................................    72
Carll, Elizabeth K., Chair, Interactive Media Committee, Media 
  Psychology Division, American Psychological Association, Long 
  Island, New York, statement and attachments....................    79
Florida Police Chiefs Association, Tallahassee, Florida, 
  resolution.....................................................    91
Fraternal Order of Police, Mark Koch, President, Pensylvania 
  State Lodge, Games and youth violence--independent research 
  findings ignored by APA, Harrisburg, Pennsylvania, letter......    92
Gee, James Paul, Tashia Morgridge Professor of Reading, 
  University of Wisconsin Madison, Madison, Wisconsin, statement.   100
Goldstein, Jeffrey H., Department of Social & Organizational 
  Psychology, Utrecht University, The Netherlands, statement.....   110
Horowitz, David, Executive Director of the Media Coalition, 
  statement......................................................   127
Interactive Entertainment Merchants Association, Hal Halpin, 
  President, Wilton, Connecticut, statement......................   132
Johnson, Hon. Jeff, Assistant Majority Leader, Minnesota House of 
  Representatives, Plymouth, Minnesota, statement................   135
Murray, John P., Professor of Developmental Psychology, School of 
  Family Studies and Human Services, Kansas State University and 
  Senior Scientist, Visiting Scholar, Center on Media and Child 
  Health, Children's Hospital Boston, Harvard Medical School, 
  Boston, Massachusetts, statement and attachment................   140
Nusbaum, Howard C., Chair, Department of Psychology, University 
  of Chicago, Chicago, Illinois, statement.......................   143
Saunders, Kevin W., Professor of Law, Michigan State University 
  College of Law, East Lansing, Michigan, statement..............   153
Smith, Paul M., Jenner and Block LLP, Washington, D.C., statement   158
Sternheimer, Karen, Sociologist, University of Southern 
  California, Los Angeles, California, statement.................   171
Strickland, Steve, Reverend, Fayette County, Alabama, statement..   172
Take-Two Interactive Software, Inc., and Rockstar Games, Inc., 
  Paul Eibeler, New York, New York, letter.......................   174
Thierer, Adam D., Senior Fellow and Director, Center for Digital 
  Media Freedom, Progress & Freedom Foundation, Washington, D.C., 
  statement and attachment.......................................   176
Vance, Patricia E., President, Entertainment Software Rating 
  Board, New York, New York, statement and attachment............   207
Williams, Dmitri, Assistant Professor, Department of Speech 
  Communication, University of Illinois at Urbana-Champaign, 
  Urbana, Illinois, statement....................................   222
Yee, Hon. Leland Y., Speaker Pro Tempore, Assembly Member, 
  Twelfth District, Sacramento, California, statement............   234


   WHAT'S IN A GAME? REGULATION OF VIOLENT VIDEO GAMES AND THE FIRST 
                               AMENDMENT

                              ----------                              


                       WEDNESDAY, MARCH 29, 2006

                              United States Senate,
Subcommittee on the Constitution, Civil Rights and Property 
                  Rights of the Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:10 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Sam 
Brownback, Chairman of the Subcommittee, presiding.
    Present: Senators Brownback, Coburn, and Feingold.

 OPENING STATEMENT OF HON. SAM BROWNBACK, A U.S. SENATOR FROM 
                      THE STATE OF KANSAS

    Chairman Brownback. The hearing will come to order. Thank 
you all for joining us here today. I am sorry to be late. We 
had a long caucus discussion on immigration, one of the key hot 
topics of the day.
    I am delighted that the witnesses are here and the people 
present, my colleague, Senator Feingold, who is also interested 
in this issue, and his colleague, Senator Kohl, has been one of 
the leaders on this topic for many years. I follow his lead on 
it.
    We are here today to discuss the recent developments in 
State efforts to restrict the sale of violent video games to 
minors. We have a video that we are going to show briefly here 
about some of the recent games out, some of the cop-killer 
games that I want people to get a good view of what we are 
talking about.
    Since 2001, four States and two cities have passed laws 
restricting minors' access to violent video games. The video 
game industry successfully challenged each of these laws in 
Federal court. Four district courts and the Seventh and Eighth 
Circuit Courts have granted injunctions barring enforcement of 
these laws. Despite this, 15 other States have introduced 
similar legislation. I believe we have a chart that shows the 
States that are proceeding down this line.
    The courts' decisions in these cases were primarily based 
on the failure of the States to show a compelling State 
interest necessary to justify the regulations. That is what we 
want to talk about today. Several judges noted past studies 
which link media violence to aggressive behavior in children. 
They were not convinced, however, that such evidence justified 
restrictions on minors' access to violent video games.
    Because video games are a relatively new medium, studies 
exploring their effects are still developing. Today we have 
several witnesses who will discuss recent studies which bolster 
the call for increased restrictions.
    The First Amendment guarantees the right to free speech. 
What too many in the media industry fail to realize is that 
this right is not without limits, particularly when it comes to 
minors. The Supreme Court in Sable Communications v. FCC held 
that, ``The Government may, however, regulate the content of 
constitutionally protected speech in order to promote a 
compelling interest. We have recognized that there is a 
compelling interest in protecting the physical and 
psychological well-being of minors.''
    In 2002, the Sixth Circuit held that, ``The protections of 
the First Amendment have always adapted to the audience 
intended for the speech. Specifically, we have recognized 
certain speech, while fully protected when directed to adults, 
may be restricted when directed toward minors.'' State laws 
restricting minors' access to violent games do not impair adult 
access. Adults can continue to buy these games for themselves 
and can provide them to children. The laws are only aimed at 
preventing children from entering stores and purchasing the 
games themselves. However, requiring adults to purchase these 
games will cause parents to think twice, we hope, about buying 
them for their children.
    Thanks to new technology, the violence in today's video 
games is becoming more graphic, realistic, and barbaric. 
Today's video games allow players to decapitate and electrocute 
their opponents, beat their victims to death with golf clubs, 
pin women against walls with pitchforks, and have sex with 
prostitutes before beating them to death.
    In Ginsburg v. New York, the Supreme Court upheld a State 
law prohibiting the sale of obscene material to minors. The 
Court found that two compelling State interests were at work:
    First, ``The legislation could properly conclude that 
parents and others--teachers, for example--who have the primary 
responsibility for children's well-being, are entitled to the 
support of laws designed to aid discharge of that 
responsibility.''
    Second, the State ``has an independent interest in the 
well-being of its youth.''
    These are important interests that may justify regulation 
on the sale of violent video games as well. The State laws 
passed to date target only those games which include extreme 
violence and gore or target police officers. It is with regard 
to these games that the need for parental involvement is so 
important.
    A number of courts have held that States cannot show a 
compelling State interest because scientific studies showing a 
link between the games and real-life violence are lacking. 
However, many psychologists agree that violent games are 
associated with violence in children. The American 
Psychological Association issued a resolution in November 
calling for a reduction in violence in video games and 
interactive media. The APA resolution was a result of research 
by its Media Psychology Division, which showed that violent 
video games increase aggressive thoughts and behavior among 
youth.
    Recently, a new group has voiced concern over violent video 
games, and that is police officers. A new video game--``25 to 
Life'' is the title of the game, shown in a clip that we will 
show--was released in January of this year. In ``25 to Life,'' 
players choose the role of either a police officer or gang 
member. If the player chooses to be a gang member, the goal is 
to avoid arrest. Players use guns, pipe bombs, tasers, Molotov 
cocktails, and broken bottles to torture and kill. This is not 
the first cop-killing game to gain national attention.
    One of our witnesses today, Steve Strickland, will share 
the story of his brother, who, along with two other police 
officers, was shot and killed by Alabama teen Devin Moore, an 
avid player of ``Grand Theft Auto.'' That game rewards players 
for avoiding law enforcement in a quest to steal cars and 
perpetrate crime. After his arrest, Moore stated, ``Life is 
like a video game. Everybody's got to die sometime.''
    The National Law Enforcement Officers Memorial Fund has 
also voiced concern about a game that glorifies and rewards the 
murder of police officers. They have a petition--I have got it 
here to show you--signed by 265,000 voicing the concern of 
officers and their families across the country. A number of 
representatives of that organization are here today, and I 
appreciate your attendance.
    At this point, with the indulgence of my colleague, I work 
to show a short clip of some of these video games that are new 
on the market, and particularly the cop-killing ones. I would 
advise those in the audience that these are graphic, they are 
violent. If you do not want to watch them, please do not. And I 
would not blame you a bit. I viewed them myself, and really, 
they turn your stomach. But I want to give you an idea. The 
videos you are about to see show clips of three games that are 
rated M for mature audience.
    Would you please put those videos on? It is about a 4- or 
5-minute clip showing several games.
    [Video shown.]
    Chairman Brownback. Thank you for showing that. My 
apologies if it offends people. I think it is important, 
though, that we show those.
    I hope that this hearing will allow us to discuss the 
current state of the law with regard to restrictions on the 
sale of these types of video games to children. I will 
introduce our witnesses in just a moment after I go to my 
colleague for an opening statement.
    Senator Feingold?

 OPENING STATEMENT OF HON. RUSSELL D. FEINGOLD, A U.S. SENATOR 
                  FROM THE STATE OF WISCONSIN

    Senator Feingold. Thank you, Mr. Chairman. Thank you for 
holding this hearing.
    The issue of violence in the media, and violent video games 
in particular, has raised a lot of concerns for parents and 
lawmakers, and I hope this hearing will be a constructive forum 
for inquiry and debate in both the scientific and legal issues 
related to the regulation of violent video games.
    Now, contrary to popular rumor, I am not a big video game 
guy, so this is really an opportunity for me to learn about 
something I am not terribly familiar with. Politicians do not 
usually admit they do not know about something, but I really do 
not.
    We have all heard about some of the extremely violent video 
games on the market today, and we have seen a powerful example 
of that today. And let me just say, Mr. Chairman, it enrages me 
that such a thing exists, that anyone would want to spend even 
1 minute creating such a monstrous thing. I say that as an 
individual.
    It is natural for parents to worry about whether playing 
those games could have detrimental effects on our young people, 
so I am interested to hear from the experts today about the 
work they have done in this area. While I realize that this 
hearing is not intended to address any particular Federal 
legislation, there are pending proposals in Congress on this 
topic.
    As in so many areas, Congress must be careful to consider 
the constitutional questions related to any attempt to address 
violence in video games. Obviously, we are taking this up as a 
part of the Judiciary Committee. We must precisely identify the 
problems that we are attempting to solve, and we have to 
evaluate the First Amendment implications of any proposed 
solutions.
    Federal courts, everyone should be aware, have consistently 
struck down on First Amendment grounds local and State efforts 
to regulate violent video games. It would be an enormous waste 
of time and resources to pass a clearly unconstitutional law, 
and at the end of the day, passing such a statute does not help 
anyone. Nonetheless, I am very interested in learning about 
this problem, and I welcome the witnesses, and I look forward 
to the testimony.
    Thank you, Mr. Chairman.
    Chairman Brownback. Thank you, Senator Feingold.
    I want to recognize again Senator Kohl's leadership on this 
effort for some time, your colleague from Wisconsin.
    We will go to the witnesses. I do not know, Senator Coburn, 
if you have an opening statement. No opening statement?
    Senator Coburn. No.
    Chairman Brownback. Let me introduce our first panel. We 
have two panels today.
    First, Reverend Steve Strickland, whose brother, Arnold 
Strickland, was a 25-year veteran of the police force in 
Fayette County, Alabama. He was shot and killed, along with two 
other offices, in 2004 by Alabama teen Devin Moore, an avid 
video game player.
    Second is Dr. Elizabeth Carll. She is Chair of the 
Interactive Media Committee, which is part of the Media 
Psychology Division of the American Psychological Association. 
She was actively involved in the APA resolution drafted last 
year calling for a reduction in violence in video games. Thank 
you very much for joining us, Dr. Carll.
    The third witness is Dr. Dmitri Williams, an Assistant 
Professor of Speech Communication, University of Illinois at 
Urbana-Champaign. Dr. Williams recently led a study on the 
effects of violent games and aggression.
    Dr. David Bickham is a research scientist at the Center on 
Media and Child Health at Harvard Medical School. Dr. Bickham 
has spent years studying the effects of all forms of media 
violence on children and published numerous articles on the 
subject.
    I thank the panel for joining us here today. I am looking 
forward to your testimony.
    As I mentioned at the outset, my intent here is to try to 
get and to build a factual basis of why there is a legitimate 
State interest in legislating on violence in video games and 
their targeting and marketing toward children. Any suggestions 
you have to us of Federal legislation would be good as well, 
but I am primarily trying to establish a factual record as to 
why there is a legitimate State interest in these, contrary 
really to how the Federal courts have ruled to date.
    Reverend Strickland, I know this must be difficult for you 
to be here, but I am delighted that you are willing to join us. 
The microphone is yours. We will set the clock at 6 minutes. 
That is a guide for you. All of your written testimony will be 
submitted into the record, and I would personally prefer most 
if you would summarize so we can ask as many questions as 
possible.
    Reverend Strickland?

STATEMENT OF REVEREND STEVE STRICKLAND, FAYETTE COUNTY, ALABAMA

    Rev. Strickland. Mr. Chairman and other distinguished 
members of this Committee, my name is Reverend Steve 
Strickland. I am one of three brothers of Arnold Strickland, 
who was a Fayette, Alabama, police officer, who was murdered by 
a teenager on June 7, 2003. I was asked to come and testify by 
Senator Brownback's office on how my brother's murder has 
affected me and our family, and the two other families who also 
lost their loved ones, and our entire community. Thank you for 
giving me this opportunity today.
    The best way to start is to start on that Saturday morning, 
a morning that changed all of our families' lives. Arnold and I 
had plans of going fishing that day. I was looking forward to 
spending that time with him. We did not get to spend and share 
as much time together as we would have liked because of my work 
as a minister. There was always something going on to keep us 
apart but not on that day. I was already on the water at 
daylight and waiting for him to get off work and come join me. 
It was going to be a fun day for the both of us. It always was 
when we got together. It was about 6:30 when that beautiful 
Saturday morning turned into one of the darkest days of my 
life.
    My nephew Shane, one of Arnold's three sons, called and 
asked if I had seen Dad, and I said no, that I was waiting on 
his phone call to tell him how to get where I was. He was 
supposed to get off at 5 a.m. and should be here any minute. 
Shane said something had happened in Fayette and when he found 
out he would call me back. It was not 15 minutes when my phone 
rang again, and he said with tears in his voice, ``You need to 
come home quick.''
    I knew at that moment I would never see my brother alive 
again. Our fishing days together were over. I sat there and 
wept bitterly because I loved my brother deeply. As I got to 
the house, there were family members already there along with 
police officers. It was total shock and confusion as to what 
had happened and what was going on. Being a minister, I deal 
with death on a regular basis, but I had not experienced such 
trauma as I did that day. In the hours ahead, we learned that 
Arnold along with two other men--one being James Crump, a 
fellow officer, and the other, Ace Mealer, who was the 
dispatcher that night--were also murdered. A young teenage boy 
named Devin Moore was responsible for the brutal execution of 
the three men that morning.
    As days passed and then weeks, months, and now years, our 
family is still trying to put our lives back together. No 
Saturday will ever be the same for me. No holidays will we ever 
enjoy as much as when Arnold was there. But what hurts the most 
is to see his grandchildren and knowing how much he loved them. 
They will never get to see him again. They will only hear 
stories and see pictures of their granddad. And how do you 
explain to a child that just last week granddad was there and 
now he is gone? And then the parents get to try to explain, 
when asked, How did he die and why did he die?
    The total impact on our families behind these senseless 
killings will never be over. This is the reason I accepted your 
invitation to come and speak today, so that maybe other 
families will not have to answer those hard questions or go 
through what our families are still going through to this day, 
trying to still sort it all out. That brings me to the point of 
why I am here.
    Video games: What are they and how are they being used? The 
statement I made earlier about Arnold and the other two being 
executed was a very true statement. You see, they were not just 
shot. All three received a bullet to the head after they were 
on the floor. You have to ask the question: What would bring a 
young teenage boy like Devin to this point?
    Devin made a statement in a local newspaper 1 day that made 
no sense to me whatsoever, until it got in the hands of one of 
our attorneys, Jack Thompson, who knows all about what that 
statement meant: ``Life is like a video game, everyone has to 
die sometime.'' As a minister, I deal with a lot of different 
issues and try to stay up and become educated on them, but Jack 
opened up a whole other world to me that I did not even know 
existed. This is the violent video game world--a world that, as 
far as I am concerned, is straight from the pits of Hell.
    As I gather more information on the games and the people 
who call themselves ``gamers,'' I could see how someone like 
Devin, who at 1 minute did not put up any resistance when 
arrested for stealing a car or when being booked, to the next 
minute, getting my brother's gun from him in the police 
station, shooting him, and then killing two other men in a 
matter of less than 2 minutes. A game such as ``Grand Theft 
Auto: Vice City'' could and did teach him how to do this. As I 
watched this game being played on CBS' ``60 Minutes,'' I could 
not believe my eyes of how close in comparison this game was to 
the actual slaughter of my brother, along with James and Ace.
    I had to ask myself the question: Why would someone put 
such games on the market and into the hands of teenagers? In 
``Grand Theft Auto: Vice City,'' the people we put our faith 
and trust in to protect us from harm--the police officers--are 
the ones being targeted as the bad guys. Devin Moore practiced 
on this game hour after hour to kill our loved ones. It made 
him a more effective killer.
    In this game, if you kill the police and other innocent 
people, you win points. You get extra points for shots to their 
heads. When a society gets to the point to where law 
enforcement are the bad guys and the thugs and the murderers 
are the good guys, our society will take a turn for the worse. 
Some have taken that turn. I do not believe most of us are 
ready for that. We have an opportunity to do something about 
this problem. Why don't we? I am a man of facts. I try to live 
my life by them. Jack Thompson and others have facts and 
experts to back up what these games are: they are cop-killing 
simulators, and they will bring more deaths in the future. Our 
loved ones in Fayette are not the only ones to die at the hands 
of teens who trained on this game to kill.
    Let me remind you if I may: It could be one of your family 
members next. I ask that we put all the true facts on the table 
about how dangerous all of these murder simulation video games 
are.
    The primary motivation for what these video game companies 
do in making and marketing violent video games to kids is this: 
money. Why would these companies want to change things? One 
day, we will all stand before the Almighty God and give an 
account for what we have done and what we have accomplished, 
both good and bad on this Earth.
    I ask all of you Senators that we take a good, hard look at 
the impact of these games and what they have on our teenagers 
and hold everyone accountable for their part. These games in 
the wrong hands played long enough are detrimental to our 
families, to our friends, and to our entire society.
    I thank you for allowing me to share our grief, as well as 
our hope for a safer America. Thank you.
    [The prepared statement of Rev. Strickland appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Reverend Strickland. That 
was very powerful, and we are sorry about your brother and the 
other members, but I do appreciate very much your willingness 
to come here and to testify about it. I look forward to having 
some questions for you.
    Dr. Carll, thank you very much for being here today.

   STATEMENT OF ELIZABETH K. CARLL, CHAIR, INTERACTIVE MEDIA 
 COMMITTEE, MEDIA PSYCHOLOGY DIVISION, AMERICAN PSYCHOLOGICAL 
               ASSOCIATION, LONG ISLAND, NEW YORK

    Ms. Carll. Thank you, Mr. Chairman and distinguished 
members of the Committee, for initiating this important hearing 
on violence in video games. I am Dr. Elizabeth Carll, the Chair 
of the Interactive Media Committee of the Media Psychology 
Division of the American Psychological Association.
    Chairman Brownback. Pull it up a little bit. You are kind 
of hard to hear.
    Ms. Carll. The effects of media violence on children has 
been a career-long interest with the adoption of the APA 
Resolution on Violence in Video Games and Interactive Media 
being one of the initiatives when I served as president of the 
Media Division of APA. I am also a psychologist in private 
practice in Long Island, New York, and I have worked with 
children, teens, and families for more than 25 years. The APA 
is pleased to participate in today's hearing and thanks Senator 
Brownback for his important work on issues surrounding media 
and children.
    The Interactive Media Committee was formed to facilitate 
the implementation of the recommendations of the Resolution on 
Violence in Video Games and Interactive Media, which was 
adopted by APA in 2005, which I will be discussing. APA's Media 
Psychology Division spearheaded the adoption of the APA 
resolution with the recognition that there is often a 
disconnect between research, legislation, and implementation of 
useful recommendations at the community level.
    It may be of interest for the Committee to be aware that, 
as a result of the APA resolution, a formal dialog with the 
Electronic Software Ratings Board has begun to discuss ways in 
which the current ratings system may be improved.
    It is also important to emphasize that the electronic media 
plays an important role in the emotional development, social 
behavior, and intellectual functioning of children and youth. 
There are many video games that are very helpful for children 
to facilitate medical treatment, increase learning, and promote 
pro-social behavior. However, there are also video games that 
include aggression, violence, and sexualized violence that may 
have a negative impact on children. It is this group of video 
games that I will be discussing today.
    Many of the issues that I will be discussing today were of 
concern when I first testified at the 1999 New York State 
Legislature's hearings on the effects of violence in 
interactive media on children and discussed the unique 
characteristics of video games. However, what has changed since 
that time has been the rapid growth in the body of research 
that continues to point to the detrimental effects of violence 
in video games and interactive media on children, as well as 
the increasing public concern regarding this issue.
    So what are the unique characteristics of video games and 
interactive media versus TV and film?
    More than four decades of research have revealed that TV 
violence has a strong influence on the aggressive behavior of 
children and youth. Exposure to violent media increases 
feelings of hostility, thoughts about aggression, suspicions 
about the motives of others, and demonstrates violence as a 
method to deal with conflict.
    However, video games and interactive media have certain 
qualities that are distinct from passive media, such as TV and 
film. For example, video games require active participation 
enabling rehearsal and practice of violent acts; include 
frequent repetition of acts of violence as part of winning the 
game; reward game players for simulated acts of violence, often 
the winner of the game is the one who kills and destroys the 
most; and enables the identification of the participant with a 
violent character while playing video games. All of these 
qualities enhance learn.
    Therefore, this practice, repetition, identification with a 
violent character, and being rewarded for numerous acts of 
violence may intensify learning of violence. With the 
development of more sophisticated interactive media, the 
implications for violent content are of further concern. This 
is due to the intensification of more realistic experiences, 
which may be even more conducive to increasing aggressive 
behavior as compared to passively watching violence on TV and 
in films.
    What are the effects of exposure of children to violence in 
video games?
    A comprehensive analysis of violence in interactive video 
game research suggests exposure increases aggressive behavior, 
aggressive thoughts, angry feelings, physiological arousal, and 
decreases helpful behavior.
    Studies further suggest that sexualized violence in the 
media has been linked to increases in violence toward women, 
the acceptance of rape myth, and anti-women attitudes.
    Research also suggests that the most popular video games 
contain aggressive and violent themes and content. Girls and 
boys, men and women, and minorities are depicted in exaggerated 
stereotypical ways. Sexual aggression against women, including 
assault, rape, and murder, is depicted as humorous and 
glamorous and is rewarded.
    What are some of the concerns regarding the current rating 
system for video games?
    Efforts to improve the rating system for video games and 
interactive media would be a first step in providing additional 
helpful information as to the content of video games. 
Currently, the labels are very general, and more content 
specificity is needed for parents to make informed decisions 
about the video games their children play. For example, are 
there only a few depictions of violence, or is it a main theme? 
What types of violence are depicted--sports violence, war 
violence, or random thrill kill violence? Is violence linked 
with negative social consequences or rewarded? The scientific 
community should be involved in the development of a more 
accurate rating system to better inform parents and consumers.
    Recommendations from the APA Resolution on Violence in 
Video Games and Interactive Media:
    Advocate for the funding to support research on the effects 
of violence in video games and media on children, adolescents, 
and young adults. APA supports the Children and Media Research 
Advancement Act to amend the Public Health Service Act to 
authorize funding to establish a program on children and the 
media within the Centers for Disease Control and Prevention to 
study the role and impact of electronic media in the 
development of children.
    Recommendation: Teach media literacy to children so they 
will also have the ability to critically evaluate interactive 
media. This needs to involve educating parents, teachers, and 
caregivers.
    Encourage the entertainment industry to link violent 
behaviors with negative social consequences. Showing violence 
without realistic consequences teachers children that violence 
is an effective means of resolving conflict; whereas, seeing 
pain and suffering as a consequence can inhibit aggressive 
behavior.
    Develop and disseminate a content-based rating system that 
more accurately reflects the content of video games and 
interactive media and encourages the distribution and use of 
the rating system by the industry, parents, caregivers, and 
educational organizations.
    The complete text of the APA Resolution on Violence in 
Video Games and Interactive Media is available online.
    I would like to thank the Committee for their interest in 
this important issue and Senator Brownback for his continued 
leadership in this area.
    [The prepared statement of Ms. Carll appears as a 
submission for the record.]
    Senator Brownback. Thank you, Dr. Carll, and APA is going 
to be critical in its findings if Federal court should rule the 
other way, that there isn't a legitimate State interest. Your 
organization is going to be one of the critical ones to say 
there is a legitimate State interest, and I appreciate the 
resolution. I hope you can keep moving forward with it.
    Dr. Williams?

  STATEMENT OF DMITRI WILLIAMS, ASSISTANT PROFESSOR OF SPEECH 
  COMMUNICATION, UNIVERSITY OF ILLINOIS AT URBANA-CHAMPAIGN, 
                        URBANA, ILLINOIS

    Mr. Williams. Thank you, Mr. Chairman, Senator Feingold, 
for the opportunity to testify here today.
    I am here today in my capacity as a media researcher and 
social psychologist to talk about the science of media effects. 
Like my colleagues here, I have read the research, and like 
them, I strongly support media literacy for both adolescents 
and parents. Like them, I have come to the conclusion that 
televised violence likely does lead to increases in aggression 
among some adolescents, most often the ones in at-risk 
categories. I have no issue with that body of research.
    The question is whether the same thing holds true with the 
work on video games, violent and otherwise. My message to you 
here today is that we do not know yet. People use words like 
``links'' and ``relationships,'' which imply cause and effect, 
but that is not well established yet. Based on what has been 
published so far, I do not share my colleagues' certainty at 
all, and I would like to explain specifically why.
    The first reason is that we have been studying fish out of 
water. Gaming is a highly social activity, and we know from 
media research dating back to at least the 1930's that social 
context can change media effects drastically. Some games have 
vibrant social communities, and some have none. A massively 
multi-player game like ``World of Warcraft'' is as unlike a 
game like ``Doom'' as ``Sesame Street'' is from ``The 
Sopranos.'' The games are often apples and oranges, and many 
researchers do not know one from another. Plainly put, games 
are not television.
    I talk to gamers every day. They say things like, ``GLA for 
the win'' and ``Minus 50 DKP'' and other arcane slogans. Unless 
you enter their very social world, you will not understand what 
meanings they are making.
    Bringing isolated people into a lab does not gain us much 
because that is not how people play, especially in the Internet 
era. When you include the social side, you quickly find large 
effects, both good and bad. I have found and published both 
good and bad.
    The second point is that we do not know if we can trust a 
lot of the existing research because of how short it is. If I 
told you that we had a study that showed games causing 
aggression and that that study lasted 30 minutes, you would 
have a hard time then concluding that games would cause 
aggression over an hour or a week or a year. For that you would 
need a study that lasted an hour, a week, or a year. I am not 
sure that you realize that all you have been given are these 
short studies. They usually last between 10 and 30 minutes, and 
yet we are all talking about years and life spans.
    The other big problem is that with a study that short, you 
might be measuring excitement, not violence. That would be 
arousal, not aggression. You could effectively get the same 
effects by having them throw a Frisbee.
    In fact, when the studies go longer, it is possible that 
the effects might fade away. We do not have a lot of these long 
studies, so the jury is really still out, but we do have two 
studies of one violent game in particular--``Mortal Kombat.'' 
In the first study, the players played for 10 minutes, and 
there were large effects. In the second study, the players 
continued playing for 75 minutes, and the effects were nearly 
gone. That means there is a very good chance they fade away or 
were not there in the first place. It is possible that arousal 
was replaced with boredom or fatigue in those studies.
    Last year, I published the longest study to date 
investigating game violence. I had players play a game over a 
month and not in a laboratory. The average play time in my 
sample was 56 hours, which is the longest research exposure for 
a game ever. And after 56 hours, I found nothing. I was 
surprised--no increases in violence, aggressive cognitions, 
anything.
    Let me be clear. I am not suggesting that this study proves 
that games do not cause violence. A different game, a different 
sample, different measures might have found something 
different. I also cannot say what 2 months would do. I am not 
willing to make that leap the way that others are willing to 
do.
    But when you look at the length of these studies and you 
consider results like mine, you have to become at least a 
little skeptical of the strong claims that are made, the strong 
causal claims.
    I know that one of the reasons to hold this hearing is to 
find out why the State laws keep getting defeated. Let me 
explain why the laws are losing on the science. It is because 
the legislators are only talking and listening to people who 
agree with them, when, in fact, there is significant 
disagreement within academia.
    I have read the legislative bibliography for the current 
California case, and I have seen materials from the State which 
claim that they have read all the applicable research. But they 
did not. There are studies that are missing. There are entire 
methods which do not appear on their list. The 75-minute study 
is there. My 1-month study is not there. There are entire 
research associations that were not consulted, two which 
specialize in media, which I belong to, and one which 
specializes in game research. Not consulted. And the entire 
body of anthropological work is completely ignore.
    Those decisions represent politics, not science. And if you 
read the courts' opinions, you can see that the judges' can 
tell.
    I know that the CAMRA Act is also making its way through 
Congress, so here is a place where I think we have some common 
ground. We really do need more and better research, and 
certainly better media literacy. I support CAMRA, but let me 
offer some suggestions of how it can get rid of objections like 
mine.
    First, do not ask the Centers for Disease Control to 
administer studies of media. Media is not a controlled 
substance. If you want media researchers to respect it, 
consider the National Science Foundation.
    Second, amend the Act to include the social context of 
media use. I have read the Act's language and it is missing. 
More studies of college sophomores playing alone are not going 
to help anymore. We need studies of all ages and of how they 
actually play, which means studies of gamers playing with their 
friends, playing with family, playing with strangers, online at 
home, in Internet cafes, at school, and at work. The networked 
world of play is the future, and it is also the future, 
subsequently, of research.
    And, last, emphasize long-term studies, controlled, if 
possible. Ten- and 30-minute studies are not sufficient for 
science to conclude long-term effects, and they should not be 
enough for policymakers either.
    Senators, thank you again for the opportunity to speak 
today.
    [The prepared statement of Mr. Williams appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Dr. Williams, and I look 
forward to some discussion and the question time period. Thank 
you.
    Dr. Bickham?

 STATEMENT OF DAVID S. BICKHAM, RESEARCH SCIENTIST, CENTER ON 
  MEDIA AND CHILD HEALTH, CHILDREN'S HOSPITAL BOSTON, BOSTON, 
                         MASSACHUSETTS

    Mr. Bickham. Thank you very much. Thank you for the 
opportunity to testify today. My name is David Bickham, and I 
am a research scientist at the Center on Media and Child Health 
located at Children's Hospital Boston and affiliated with 
Harvard Medical School and Harvard School of Public Health. The 
center is an interdisciplinary group of pediatricians, 
psychologists, social scientists, and child development experts 
with the mission to research and respond to the effects of 
media on the physical, mental, and social health of children. 
My own research has been published in top health and psychology 
journals. I am here today to review the scientific evidence on 
video games and the concern that these games contribute to 
children's violent thoughts and behaviors.
    While most the research on video game violence is 
relatively new, we must consider it within the broader field of 
television, film, and visual violence, and I disagree a little 
with Dr. Williams on this point. I see television--we 
understand television teaches kids by them viewing the 
violence, seeing it rewarded, and then incorporating that into 
their own behavior. Video games go one step further and 
actually allow them to imitate it and do it onscreen 
themselves. So I see that television provides a very good basis 
for understanding the effects of video game violence because it 
is also a visual medium.
    There are five decades of research that show a link between 
violent media and aggression the Tribunal is based on a sound 
theoretical and empirical understanding of learning aggression 
and social cognition. A core ongoing project at the Center on 
Media and Child Health is the consolidation of all existing 
research on media effects into one publicly available data 
base. After 3 years of this work, the data base includes over 
1,200 research reports investigating the effects of media 
violence.
    Now, if you take any of these studies alone, we must 
realize that no study is perfect. Even the best study design 
can be criticized for limitation of its methods. All methods 
have weaknesses. Taken together, however, each study provides a 
piece of a single puzzle that all interlock to reveal one 
picture. In this case, the picture is clear: Using violent 
media increases children's aggressive thoughts, attitudes, and 
behaviors.
    Beyond violent television and film, there are reasons to 
believe that violent video games have stronger effects. We know 
that all media teach, and they especially teach young children. 
And they teach whether it is by the design of the media or just 
simply by default. Video games are exceptional teaching tools. 
They incorporate many techniques that promote learning in their 
users. They are interactive. They are involving. They require 
almost complete attention. And they reward success with points 
and new challenges. Scientists have exposed children to violent 
video games in laboratories and found that they become more 
aggressive than children who played non-violent games. Using 
survey studies, scientists have found that, even after 
controlling for complex environmental and individual 
characteristics that are also linked with aggression, playing 
violent video games is related to children's aggression 
additionally.
    Overall, we should not be surprised by the scientific 
evidence illustrating that when children play games that reward 
and encourage violent behavior onscreen, they become more 
violent.
    In rare situations, violence from media is directly 
imitated. But the most pervasive effects are more subtle and 
come from repeated viewings and playings. Violent video games 
present a world where violence is justified, it is rewarded, 
and it is often the only way to win the game. Exposure to this 
world primes children for hostile thoughts and behaviors 
immediately after playing a game. They begin to think and act 
aggressively and solve problems with violence.
    Regardless of exactly how this process happens, the real 
question is about risk. Playing violent video games is one of a 
number of factors in a child's life that increases that child's 
risk of behaving aggressively.
    Before suggesting some strategies for mitigating the 
effects of violent video games, I would like to clarify two 
common misconceptions about research on media violence.
    First, scientific research does not claim that media 
violence is the sole cause of human aggression. Nor does it 
claim that media violence is the original or most important 
cause. Violent media is, however, a substantial, pervasive, and 
controllable contributor to children's violent behaviors. The 
aspect of controllable is very important because other factors 
that contribute to aggression, such as heredity, family 
environment, racism, culture, all of these things are 
difficult, if not impossible, to change.
    Second, this research does not show that there is something 
inherently dangerous about video games. Many non-violent 
puzzle-based and educational games have been shown to increase 
children's mental abilities and teach academic lessons. 
Children will learn what we teach them. If we provide positive, 
healthy messages the resulting behaviors will be positive and 
healthy as well.
    Further research in this area can inform us in the most 
effective intervention strategies. We need to know more about 
what factors increase and decrease a child's risk for the 
effects of violent video games. Through this research, we can 
develop prevention measures for all children and specifically 
target higher-risk children for intervention. We need to extend 
the research that ties violent video games with real-life 
violence. There is some anecdotal evidence that many school 
shooters have been heavy users of violent video games. Could 
violent video game play have been a trigger that switched a 
troubled child from thoughts of revenge to actual behavior? We 
do not know. And given the nature of the crime, we will 
probably never be able to study this directly. But we can 
examine the relationship between violent video games and 
precursors of school shootings, including the most common, much 
more common behaviors of bullying and weapon carrying. A long-
term study, preferably one that is nationally representative, 
is essential to understand these and other effects of violent 
video games.
    Media literacy programs where children learn critical 
thinking skills can help immunize them against the effects of 
violent media. At the Center on Media and Child Health, we are 
currently evaluating the effectiveness of a school-based media 
literacy program. Our preliminary evidence shows that children 
start to change their understanding of media violence after a 
single class session. Additional research is necessary so that 
we can create the most effective programs possible.
    To date, the evidence about video games may not be perfect. 
In social science, you rarely actually ever prove anything. But 
I think we are at a point when we need to act on what we know.
    Given the evidence that we have, are we actually willing to 
risk the possible and dramatic long-term effects that playing 
these games could have on our children's health? As caretakers 
of the next generation, we have a responsibility to provide 
children with a safe environment in which to grow, develop and 
learn. Research has shown the media children use have real 
effects on their lives. In the Information Age, media must be 
understood as a powerful, nearly universal environmental health 
influence. We ensure the safety of what we feed children's 
bodies. We owe it to their future and the future of our society 
to ensure the safety of what we feed their minds.
    Thank you.
    [The prepared statement of Mr. Bickham appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Dr. Bickham.
    I am going to go to Senator Coburn first for questions. We 
will run the clock at 6 minutes, if that is OK with my 
colleagues, and then I will go to Senator Feingold. Senator 
Coburn has another meeting he has to attend.
    Senator Coburn. Thank you, Mr. Chairman, and thank you, 
Senator Feingold, for the deference to ask questions first.
    Is there any doubt in any of your minds that you can 
positively influence behavior in a positive way with video 
games? In other words, if you want to achieve a certain goal, 
you can design a video game to increase the propensity to 
establish that behavior?
    Mr. Bickham. I will take that. I think there is some doubt 
because there is not a lot of research on it. There is a lot of 
research on educational television that shows when it is well 
designed, it can have long-term effects, including positive--
kids who watch more ``Sesame Street'' when they are about 4 
have higher grades in high school. So there is some evidence 
base there. And because of the potential that video games have 
for how good teachers they are, I think that a well-designed, a 
well--a game that is well designed but also has a lot of 
research put into it at the front end as they are developing it 
could lead to very dramatic positive effects if it is designed 
that way.
    I would go a little further and say that you would have to 
take violence completely out of those games because those 
effects are so well documented that I think it would have those 
as well, so we would have to be very careful to take that out 
of any of those types of games.
    Senator Coburn. Dr. Carll? Dr. Williams?
    Ms. Carll. I would certainly agree that there are many 
games that are not violent and destructive and there are video 
games that are being developed for children who have various 
illnesses to help them deal with those. So there are a lot of 
positive things developing, and learning theory is a neutral 
theory. You can learn negative behaviors and you can learn 
positive behaviors.
    Senator Coburn. But your general inclination is that that 
is probably so, that you can learn a positive behavior from a 
well-designed video game.
    Ms. Carll. Yes, if it has positive content.
    Senator Coburn. Yes.
    Mr. Williams. This is a place where our colleagues in the 
field of education have actually done probably more extensive 
research than many of us in social psych and the effects side 
have, especially some work for some people up in Wisconsin, 
actually. At UW, the Education Department there has a group of 
researchers who have actually been looking at long-term 
learning effects, and here is a place where they have us at a 
disadvantage because rather than doing 10-minute or 20-minute 
or 30-minute studies, they can look at things like test scores 
over the course of a semester, and they could taken games, some 
with violence, some without, games like ``Civilization'' where 
you are building up societies and attacking and defending from 
others, following the course of history, and you can see 
dramatic improvement in learning.
    It is an area where we do not have the same level of 
evidence to make the same kind of conclusions.
    Senator Coburn. Dr. Williams, in your 56-hour study, how 
long was your followup period on that, post-follow-up? have you 
had a continuing post-follow-up on that study?
    Mr. Williams. No. For reasons of compliance with my local 
IRB, this was a 1 month-off study, also for resources. I did a 
pre-test. They played the game. There was a post-test 
immediately after, and that is it. Also because of anonymity, I 
cannot contact them. They are gone.
    Senator Coburn. So you are basing your testimony on a study 
you had and you have no followup?
    Mr. Williams. As I said, I am only comfortable talking 
about what happened over the course of the month. I do not want 
to make conclusions longer--
    Senator Coburn. Which means if we have no followup, we know 
nothing about the results of that exposure--
    Mr. Williams. We know nothing about--
    Senator Coburn [continuing]. Because it is not immediate--
    Mr. Williams [continuing]. It after a month, that is right.
    Senator Coburn. That is right, OK.
    Mr. Williams. That is the longest to date.
    Senator Coburn. Let me ask you a question. At any time in 
the course of your studies have you received any funding, 
directly or indirectly, from either a video game company, a 
manufacturer, or somebody that is a principal in that through 
an indirect or direct source?
    Mr. Williams. For research?
    Senator Coburn. Yes.
    Mr. Williams. When I was completing my dissertation work, I 
had to get copies of the game that I used as a stimulus 
somehow, and I did not have the resources to do it. But for 
legal reasons, the publisher of the game did not want to be 
associated with it, so they gave me copies as a donation, wiped 
their hands clean. They did not want to be in possession in 
case I did find something negative. It turns out that I did 
not. But for that reason I actually have no relationship with 
the game industry.
    Senator Coburn. OK. Thank you.
    I am amazed that we do not sit back and look at common 
sense on this. I mean, we know what television does. You know, 
it is pretty firm, the conclusions both the psychologists, the 
pediatricians, the social psychologists have come to in terms 
of the influence of violence through television. And it seems 
to me strange that we would not start with the concept that 
probably there is an impact and now let us go prove it to see 
if there is since we know through other video forms that there 
is an impact.
    Mr. Chairman, I would just relate, I have taken care of 
kids in my practice for 25 years, and I can tell you, I have 
seen the effects, both negatively and positively, of video 
games. And my partners see the effects. We actually had a 
shooting in Fort Gibson, Oklahoma, at one time, and much of 
that was related--not just to video games, but also to the 
environment that a child was in.
    So I would hope that we and the Congress would start with 
the precept of what we do know about video presentation of 
violence and children and work from that, and I would agree 
that we should certainly be in the position to fund some long-
term studies.
    In the meantime, we ought to do whatever we can to limit 
the violent exposure of these games to children, because there 
is nothing positive. There may not be anything negative, but 
there is certainly nothing positive from these games.
    And with that, I yield back my time.
    Chairman Brownback. Thank you very much.
    Senator Feingold?
    Senator Feingold. Thank you, Mr. Chairman.
    Mr. Chairman, I have received a number of additional 
statements and testimony for this hearing, and I would ask that 
they be placed in the record.
    Chairman Brownback. Without objection.
    Senator Feingold. Thank you, Mr. Chairman.
    Reverend Strickland, thank you for being here today. I am 
sure it was not an easy thing for you to do this, and I want 
you to know that I appreciate your willingness to share your 
experience with us.
    This question is for the three researchers on the panel. I 
understand from the testimony that quite a bit of research has 
been done regarding the effects of television violence on the 
behavior of children, but far less has been done, as has been 
indicated, specifically on the effects on violent video games. 
Obviously, Dr. Williams had already alluded to this.
    But each of you, I would like you to comment on do you 
think we need more research in this area. Dr. Carll?
    Ms. Carll. Oh, absolutely. That is why we support the CAMRA 
Act. We certainly need more research on longer-term and we need 
more research in many of the things that I think Dr. Williams 
also had said, as well as Dr. Bickham, particularly in Dr. 
Williams' because his is a multi-player format, which is very 
different than some of the video games that have been evaluated 
before, which involves cooperation and various other aspects. 
So certainly the importance of research is there.
    Senator Feingold. Dr. Williams, I think I know what you are 
going to say, but go ahead.
    Mr. Williams. I agree with myself, yes.
    [Laughter.]
    Senator Feingold. Very eloquently stated.
    Mr. Williams. Thank you.
    To elaborate briefly, there are some initial pieces of 
research coming out that you find that there are differences 
when people are playing by themselves, with other people, 
against other people, with teammates, and I think that is the 
direction we ought to be heading, because those are the ways 
that games are actually played. It could very well be that that 
shows that things are worse, not better, but these are the 
mediating factors that we would like to understand better. Me 
particularly, I would focus on the social. This is a huge 
phenomenon, especially playing online. Millions of people 
playing together creating online communities, and we know 
almost nothing about it.
    Senator Feingold. Dr. Bickham?
    Mr. Bickham. Yes, surprisingly, I also agree there needs to 
be more research. I think, however, there is enough research 
now, I think, as I said, that we can act. You know, it is at a 
point where in social science we do not prove things. We always 
work with limited information. We always work with incomplete 
knowledge. We could fund this forever. We could do this 
research forever. These games change every day. We have to make 
a decision at some point: Do we know enough now, are we willing 
to step out and say, yes, we want to protect children from 
something, even if we are not completely 100 percent sure? Even 
if it is only something that accounts for 15 or 20 percent of 
all the crime, are we willing to go out on the research that we 
have and make some interventions to protect kids from them?
    Senator Feingold. I think that is a fair point. It is hard 
to know at what point you have done enough, and you cannot make 
it impossible for you to go forward and do anything about a 
problem. But I want to go back to Professor Williams with 
regard to this. Say a little bit more how a researcher goes 
about evaluating whether a particular form of media, such as 
video games, might cause people to engage in aggressive 
behavior. It strikes me as a very difficult hypothesis to test. 
And Dr. Bickham just talked about knowing that in 15, 20 
percent of the cases this is the case--I did not hear you say 
that in your testimony. It did not seem like you necessarily 
thought this was true, any proof that it is true in any case. 
So how do you separate these things out in terms of 
methodology?
    Mr. Williams. I certainly agree with Dr. Bickham that you 
need multiple methods to really understand something. It would 
be nice to also have some sociological and ethnographic work 
done to actually talk to players, as revolutionary a concept as 
that may sound, actually go and see what meanings they are 
making out of it. You get a very different story than you do 
with a study.
    To track someone over the long term is, as you say, a 
pretty difficult thing. It is something that is resource-
intensive, and in the communication area we are often having a 
hard time getting funding for it to do these long-term studies. 
And I think we are all on the panel in agreement that it would 
be a useful contribution to the literature and to our 
understanding.
    My contention is that 30 minutes, that does not tell us 
much about truly long-term things, and here is a point of 
significant difference with the television literature, where 
there are truly longitudinal research studies, and I started my 
testimony by saying that I have no quibble with them. I am 
sold. But that is where you have people and you can follow them 
over 25 years. I do not think we need to do 25 years of 
research, but I think that going past 30 minutes into days, 
weeks, months gets a little more at the reasonableness factor 
to see when these things might stick, because some of the 
research that I talked about suggested that it might not be 
sticking, it might fade off. It might work just like television 
does. It might be worse. But until you show it, that is very 
different than saying that you know about it.
    Senator Feingold. How do you deal with the problem that the 
same person may be watching other kinds of media that are 
disturbing? And how do you separate that out?
    Mr. Williams. It is a very difficult research problem. It 
adds a significant amount of noise. The one thing you can try 
to do is establish a control group of people who are not 
engaging in your kind of media, but they are going to be 
engaging in some other kind of media. So what you have to do is 
find some kind of game that is significantly different than the 
media universe they might consume on their own, or you take 
some measure after, post hoc to find out what they did and 
contrast it with it.
    It is a thorny issue, and it is one of the reasons why the 
television research, the long-term one, did not have a control 
group. The 1 month I had is tough enough to do, and without 
more resources it becomes even harder.
    Senator Feingold. Dr. Carll, I want to followup on 
something that you touched on in your testimony. Video games 
along with other forms of media can obviously deliver many 
messages to children that you and I might not think are the 
best messages to send. Has work been done to evaluate the 
effects on children of other aspects of video games besides 
violence that you mentioned in your testimony, that is, let's 
say, based on gender or racial stereotypes or glorifying sexual 
aggression against women?
    Ms. Carll. Yes, there have been many studies in that area. 
In fact, the list that was attached to the testimony we 
submitted includes that. But, yes, there are stereotypes, and 
many of the video games, unfortunately, look toward those 
stereotypes and depict those, and anyone playing that would 
have exaggerated aspects in playing that as far as how people 
are depicted, whether it is women, children, boys, men, 
minorities in particular. So, yes, other aspects besides 
violence have been researched.
    Senator Feingold. Thank you, Mr. Chairman.
    Chairman Brownback. Thank you, Senator Feingold.
    I want to ask first submission to the record of a statement 
by Dr. Leland Yee, Speaker Pro Tem of the California State 
Assembly; also a statement in by Dr. John Murray, Professor, 
Department of Psychology, Kent State University; a resolution 
by the Florida Police Chiefs Association; and from the 
Pennsylvania Fraternal Order of Police--the police ones 
particularly regarding the video gam ``25 to Life'' that we 
showed. Those will be submitted into the record.
    Reverend Strickland, thank you again for being here, and I 
appreciate your poignant testimony about the impact and the 
impact on your family in particular. Have you in your work as a 
minister worked with families where the child--or with children 
that have been involved in video games, violent video games? Do 
you have more experience in this area?
    Rev. Strickland. No, sir, I do not. Like I said, it is a 
whole new world to me. I deal mainly with alcohol and drugs 
more than the videos, but the videos are becoming very evident 
within our communities. I mean, when all this came about in 
2003, I had many mothers that would come up to me after it hit 
the media about the video games and tell me that they did not 
realize that their children--or what their children was 
playing. Many parents, you know, you stick a video in, you go 
buy a video game and let the kids play, and you go do what you 
want to do. And, unfortunately, they did not censor these games 
before they started letting them play, and they would come up 
and tell me and say, ``When I watched the games of what they 
were, I actually took them out and throwed them in the garbage 
can. I did not realize that they were this violent.''
    So it is a whole new area for me. It is one that I am 
learning and trying to get educated on, on how to handle it, 
because I feel that it will affect our younger generation.
    Chairman Brownback. Did you see any quotes from Devin 
Moore's parents about his playing of these violent video games? 
Or do you know anything about that situation?
    Rev. Strickland. Nothing other than we have facts that he 
did play them. Devin came from a very difficult background. He 
has had a mom and a dad that was not together, or whatever. His 
upbringing was not the best in the world. But his mom did say 
that she was with him when he purchased the video games 
themselves at an age that he wasn't supposed to be able to 
purchase them.
    Chairman Brownback. But Devin purchased the games himself?
    Rev. Strickland. Right.
    Chairman Brownback. Even though it was not age-appropriate 
for him to purchase it?
    Rev. Strickland. Right.
    Chairman Brownback. I want to go to the researchers on this 
point. I have been around this topic awhile. Since being in the 
Senate, I have been around this topic, and they just keep 
getting more graphic, more violent, more horrific. I mean, I 
long for the time in 1997, I think, when I started these 
hearings, because the technology was not as good. I am 
imagining the day soon where you stand in the video room as the 
first-person killer and you are surrounded by sound and by 
screens and shooting in a very realistic setting. As a matter 
of fact, I am sure somebody technologically could do it today. 
It is whether they can make any money out of it probably is the 
question. And you all know we use these video settings to train 
our military with. I have been in simulators at Fort Riley in 
Kansas where we use a video simulator to train, and we retrain 
and retrain and retrain. And so that when the person gets in 
the situation, they do not have to think. They act. And we can 
also overcome the natural tendency in people to not want to 
shoot somebody else. It is actually more natural within us not 
to shoot somebody else, but in military settings, in 
particular, OK, we are trying to force people to overcome that. 
And so part of it is this, OK, we are going to put you in a 
simulator and simulate and simulate and simulate so that when 
you get in that situation you are not thinking, you are just 
shooting. And I cannot help but to think that that flows right 
into this situation here when we purposely do it in that 
setting and when it gets so much more graphic, so much more 
violent and realistic.
    Let me ask you, the researchers in particular, what if we 
require the video game manufacturers before they released an M-
rated game that they had to do some sort of behavioral study 
like what you have done and we try to build the prototype of 
what it is, that we require that prior to the game being 
released. Would that be useful information to help build up the 
body of knowledge that you all say is lacking? Dr. Carll?
    Ms. Carll. I would request that certainly various kinds of 
research would be helpful, but it should not be conducted by 
the entertainment industry but a neutral organization who does 
not have a vested interest in it.
    Chairman Brownback. Amen to that. I agree with you on that. 
But what about having that information by a neutral group?
    Ms. Carll. That may be helpful. I think what would be even 
more helpful, because that is something so far down the road, 
would be information in a rating system that would be helpful 
for parents to be more specific as to the content--
    Chairman Brownback. That is what you mentioned in your 
testimony.
    Ms. Carll. Right. And that could be more easily done than 
what you are describing. It would be very helpful for parents 
to know if violence is rewarded and does it have negative 
social consequences or is the purpose of the game thrill kill 
to see how many people you can kill for the sake of killing 
them. That is a different kind of game than, for instance, the 
one that was used by Dr. Williams, which was not antisocial in 
that sense.
    So different kinds of games have different outcomes, and I 
certainly agree that there is a diversity of games and we need 
to look at research in that area. But those kinds of games 
which have those negative qualities are likely very different 
from some of those with more positive ones, and, yes, so having 
more research in that area would be helpful as well. But having 
information for parents to know what kind of games their kids 
are playing is even more important.
    Chairman Brownback. I agree with that.
    Dr. Williams, what do you think about that, requiring a 
study for M-rated games released?
    Mr. Williams. Well, here we cross into the First Amendment 
territory as much as the research territory, and the impulse to 
in some way restrict or measure something before it is released 
to the general public falls way outside of my purview. And as a 
citizen, honestly it creeps me out a little bit. As a 
researcher, sure, I would love to have access to those kinds of 
materials. I can also tell you that we take a really, really 
long time with things, so I don't know how feasible that would 
be. Would it be nice to have some kind of better description or 
content knowing what is out there to give parents more 
information? I don't think anybody objects to that. You know, 
you will hear from the ESRB rep in the second panel, and you 
can figure out whether or not you think they do a good job or 
not.
    I have to say in passing that I spent all last week at the 
game developer conference in San Jose talking with game 
developers, and it might surprise you to know that they have a 
very contentious relationship with ESRB and find them very 
adversarial. So ESRB obviously feels besieged from both sides.
    Chairman Brownback. OK. I want to thank the panel very 
much. If you have additional statements to put in, please feel 
free to do so.
    We have a second panel I want to call up. The first witness 
on the second panel is Pat Vance, President, Entertainment 
Software Rating Board. The ESRB provides the ratings for video 
games.
    We have Representative Jeff Johnson, Assistant Majority 
Leader, Minnesota House of Representatives. Representative 
Johnson drafted a video game bill which is currently pending 
before the Minnesota Legislature.
    Paul Smith is a partner at Jenner and Block in Washington, 
D.C. He has represented the video game industry in a number of 
its suits challenging State restrictions on the sale of violent 
games to minors.
    And Professor Kevin Saunders, a law professor at Michigan 
State University, teaches a course on constitutional law and 
the First Amendment. He has been involved in drafting a number 
of the State laws.
    Thank you all very much for being here. Ms. Vance, I want 
to open up with you. Welcome. We will run the time block at 
about 6 minutes.

   STATEMENT OF PATRICIA E. VANCE, PRESIDENT, ENTERTAINMENT 
           SOFTWARE RATING BOARD, NEW YORK, NEW YORK

    Ms. Vance. Thank you, Chairman Brownback, Ranking Member 
Feingold, and the entire Subcommittee for the invitation to 
appear today. I would like to take this opportunity to provide 
greater insight into how ESRB ratings currently empower parents 
to make informed decisions about the games their children play. 
I request that my statements, both oral and written, along with 
the instructive appendices, be made a part of the hearing 
record.
    Chairman Brownback. Without objection.
    Ms. Vance. Thank you.
    Virtually every computer and video game sold in the U.S. 
today carries an ESRB rating, and nearly all major retailers 
choose to only stock games that have been rated by our 
organization. This voluntary commitment from the video game 
industry and the retail community ensures that consumers have 
accurate and reliable information to help them decide which 
games are appropriate for themselves, their children, and other 
family members. Today, the vast majority of parents use and 
trust ESRB ratings in helping them make those decisions.
    The two-part ESRB rating system now consists of six age-
based rating categories appearing on the front and back of each 
game package and 32 different content descriptors that appear 
on the back prominently displayed next to the rating category 
which indicate elements in a game that may have triggered a 
rating or may be of concern to parents. ESRB ratings are based 
on the consensus of adult raters who have no ties to the game 
industry and work on a part-time basis. One of ESRB's key 
responsibilities is to ensure that these raters review all 
pertinent game content, including the most extreme, no matter 
how hard it might be to find when playing the game.
    Many of today's games can take over 50 hours to play all 
the way through, so it is critical that companies fully 
disclose to the ESRB in detail exactly what is in the game 
across a broad range of categories, including but not limited 
to violence, sex, language, use of a controlled substance, and 
gambling. If a company does not fully disclose all the game's 
content to the ESRB, recent enhancements to our enforcement 
system allow for the imposition of fines up to $1 million. The 
power to impose substantial penalties which may include the 
suspension of rating services and corrective actions that can 
result in a full product recall serve as a tremendous 
disincentive for any company entertaining the notion of 
withholding pertinent content from the ESRB.
    As the FTC has previously noted, the ESRB enforcement 
system is unique in its scope and severity among entertainment 
rating systems. While games that are rated for mature audiences 
tend to get a disproportionately high amount of media 
attention, the reality is that, by far, the largest number of 
titles rated by the ESRB year in and year out receive a rating 
of ``E'' for ``Everyone,'' and only about 12 percent of games 
receive an M rating for players 17 and older. Furthermore, last 
year, not one mature-rated game made it onto the top ten seller 
list. These facts belie the common misperception that all games 
are created and intended for children. The fact is that the 
average age of a gamer today is 30. So it is not surprising 
that video games, just like movies and TV shows, are created 
for all ages. The ratings help parent discern which games are 
right for their children and which ones are not, and 
increasingly, parents have come to rely on them.
    A recent study by Peter Hart Research found that 83 percent 
of parents with children who play games are aware of the ESRB 
ratings and 74 percent use them regularly when buying games. 
While that is pretty good, we continue to put significant 
resources into aggressive educational initiatives to remind and 
encourage parents to use the ratings every time they buy a 
game.
    Moreover, for the ratings to be reliable, they must meet 
parents' expectations, and to that end, the ESRB commissioned 
separate research annually to test the level of agreement with 
our rating assignments among parents in ten different markets 
across the U.S. In the study, parents view excerpts from a 
large number of randomly selected games across all ESRB rating 
categories, and the results show that parents agree with ESRB 
ratings 82 percent of the time or find them too strict another 
5 percent of the time. Given the broad diversity of values, 
tastes, and opinions in our country, this is a very high level 
of agreement, and it is a testament to the effectiveness of the 
system we use to assign ratings.
    Some would argue that the ratings do not work because they 
do not place restrictions on what kids can buy. To address that 
point, it is worth mentioning that the FTC has reported that 
adults are involved in the purchase of a video game 83 percent 
of the time. Similar studies conducted by the industry have 
found that a parent or adult is involved 92 percent of the 
time. Simply put, parents are the gatekeepers, as well they 
should be, when it comes to which games come into the home.
    I would like to close today by saying simply that nobody 
takes these issues more seriously than we do. ESRB values 
immensely the trust that millions of parents have placed in our 
ratings, and we fiercely intend to preserve that trust. The 
vast majority of parents can and do make sensible choices about 
the games their children play, and our ratings consistently 
play a critical role in making those choices.
    Thank you, and I look forward to answering any questions 
that you may have.
    [The prepared statement of Ms. Vance appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Ms. Vance.
    Representative Johnson?

  STATEMENT OF HON. JEFF JOHNSON, ASSISTANT MAJORITY LEADER, 
               MINNESOTA HOUSE OF REPRESENTATIVES

    Representative Johnson. Thank you, Mr. Chairman and Senator 
Feingold. My name is Jeff Johnson. I am a third-term Republican 
member of the Minnesota House of Representatives. I am 
Assistant Majority Leader and Chairman of the House Civil Law 
Committee. But more importantly, I am the father of two little 
boys who would play video games 12 hours a day if we did not 
limit them to about 3 hours a week. And I should add that I am 
not opposed to video games. In fact, I enjoy those 3 hours on 
the weekends with one of my sons playing football or soccer or 
some other video game, unless one of is naughty and we have it 
taken away from us. But I do not believe that video games are 
inherently bad.
    I do believe that some are, though, and I am the House 
author of a bill in Minnesota that takes a rather modest step 
towards restricting access by our kids to extremely violent or 
sexually explicit video games. And this is a bipartisan effort. 
Senator Sandy Pappas is a Democrat from St. Paul. She has 
already passed this bill off the Senate floor, and I am hopeful 
to do the same in the House within the next few weeks.
    The bill is really very simple. It is very narrowly 
tailored. Frankly, it is probably more narrowly tailored than I 
would like, but because of the constitutional issues, this is 
what we thought we ought to do. And what it says is that 
children under 17 cannot rent or buy video games that are rated 
either M or AO by the ESRB. If they attempt to do so, they are 
subject to a $25 civil penalty or civil fine. Our bill also 
requires that each retailer of these games in Minnesota has to 
post a clearly visible sign regarding the restriction. That is 
the entire bill.
    My intent with this legislation is not to make criminals 
out of kids or to raise money $25 at a time for the State of 
Minnesota, and, frankly, I do not expect that would happen even 
if we are able to pass this bill and make it law. What I am 
hopeful for is that by passing the new law we may get the 
attention of at least a few of the painfully oblivious parents 
in our State who are really paying absolutely no attention to 
some of the garbage that their little kids are playing in their 
own homes on their video game machines.
    As I mentioned, I have two little boys at home, and our 
oldest is in second grade. He is 7. And I am amazed at how many 
of his little friends--and this was last year, actually, when 
he was in first grade. I am amazed at how many of them 
regularly play M-rated video games. Now, I do not blame that on 
the ESA or the companies that make these things. I blame that 
on their parents, and what I want to try to do is at least get 
their attention because I would like to believe that if some of 
these parents knew what was in these games, if we could just 
get their attention, they might put a stop to it.
    I have been working on other ways to get the attention of 
parents in Minnesota with Dr. David Walsh and the Minneapolis-
based National Institute on Media and the Family, which is 
probably the most well-respected organization in the country 
addressing the impact of the media on children and families. 
But I also believe that we have to do something legislatively, 
and you have already mentioned it, Mr. Chairman, and a couple 
of the testifiers did, and we saw it on the screen. We are not 
talking about the equivalent of an R-rated slasher movie here. 
Many of these games are absolutely, to use your term, horrific, 
and I have actually rented some of them so I could see before I 
wrote my bill. They allow kids to learn firsthand how to kill 
people and how to torture people and how to mutilate people and 
how to rape people in graphic detail and in vivid reality. And 
the key difference from the movie is they do not watch other 
people doing it. They get to do it themselves. And in many of 
these games, the more violent and gruesome you are, the more 
points you score.
    I cannot leave today without being certain that everyone 
comprehends the nature of the violence in these games. We saw 
some examples on the screen. Those are not even the worst 
examples that I have seen, Mr. Chairman, and I want to share 
with you just very brief descriptions of four popular video 
games that I know are available at large retailers and video 
rental stores in Minnesota, because I have seen them.
    The most popular game in America last year was ``Grand 
Theft Auto,'' which you had on the video that we saw. The 
player is a young man who is trying to gain the respect of 
street gangsters and other criminals, and, of course, you are 
that person. And the more creative and brutal you are in 
killing innocent people, and in some cases cops, the more 
respect you gain and the more points you score.
    One example in this game of a creative kill would be to 
beat someone to death with a bat until he drowns in his own 
blood, and then when the ambulance comes, you can actually kill 
the ambulance driver and use the ambulance to kill some more 
people on the street.
    Another piece of this game is one that you mentioned, Mr. 
Chairman. You can score points by having sex with a prostitute, 
and then if you beat her to death afterwards and get your money 
back, you may score some more points.
    ``Clock Tower 3'' is another game that is readily 
available. It is a survival horror game about a young girl who 
is being chased by murderers who want to kill her and her 
family. In one scene, a little girl with pigtails is caught by 
her attacker who repeatedly smashes her head against a wall 
with a sledgehammer. Later you see her ghost covered in blood 
playing a piano while her father is impaled onto a fence. And 
another scene shows a killer gouging out a man's eyeballs and 
then lowering the man's elderly mother into a vat of acid as 
she begs for mercy.
    ``Manhunt'' is another fairly popular game, and I know that 
is available at my large video rental store because whenever I 
go with my son and he wants to look at the latest ``Madden NFL 
Game,'' there is ``Manhunt'' right next to it. And in this 
game, the player is a mass murderer who sometimes wears a clown 
mask to disguise himself. You score points by, of course, 
killing people in creative and gruesome ways. For example, you 
can use a piano wire to grab a man from behind and saw at his 
neck, pushing your foot up against his back until his head 
falls off. You can suffocate someone with a clear plastic bag. 
You can twist large shards of glass into someone's eyeballs or 
you can use a sickle to split someone's stomach or stab a 
crowbar into the back of someone's head and pry it apart.
    And my last example is ``Postal 2,'' and I think we saw an 
example of ``Postal 1'' on the video earlier. This is a serial 
killer game where, of course, you score points by killing 
innocent people. There are a lot of ways of doing it, but one 
piece that I found interesting was that you can actually 
possibly score extra points by urinating into a victim's mouth 
before you kill him or her. And you can even open fire on a Gay 
Pride march, a minority community celebration, and a parade of 
police officers.
    Mr. Chairman, comparing this in any way to playing Frisbee 
is just beyond my belief, because it is not.
    I do not enjoy reading these descriptions. They literally 
make me sick to my stomach, especially knowing that little kids 
all over the State of Minnesota are playing them. But people 
need to know how horrific these games really are, and I think 
by describing them you can better understand why some of us 
feel that we absolutely have to do something about it.
    To the bill, and I will keep it very brief. We have crafted 
a very narrow-language bill in our State because we are 
concerned about the cases out there that exist with respect to 
content-based restrictions. But despite the dire warnings from 
the ESA when I first brought this bill up last year, I believe 
that our bill could survive a constitutional challenge, and 
here is why. Three brief reasons.
    The only case on point with any precedential value in 
Minnesota is the Eighth Circuit case of IDSA v. St. Louis 
County. The rest of them are without our jurisdiction, and that 
case came down over 3 years ago, and I believe was argued 
nearly 4 years ago. There is a big difference between our bill 
and the bill in that case.
    The St. Louis County ordinance in question first was a 
great deal broader than our very narrowly tailored bill in 
Minnesota, and that is a very important distinction because not 
only the Eighth Circuit but all of the other cases, I believe, 
where a court has either struck down or placed an injunction on 
one of these statutes or ordinances say that we need to more 
narrowly define the statute.
    Second, the St. Louis County ordinance that is in this case 
and all the other laws that have been struck down have been 
subject to the argument that they are unconstitutionally vague 
because they restricted video games which fell under a specific 
statutory definition of ``violence'' or ``excessive violence.'' 
So the retailer could not look at the box and say, ``Oh, this 
falls under the law.'' What we have done is we have said that 
the restrictions only apply to those games that are rated in a 
certain way so that you can look at the box and immediately 
determine. And I realize this isn't ideal because the industry 
or at least a private entity will have control over which games 
fall within the category, but it is all we have got. And I 
would certainly welcome a future discussion on possible 
Government rating of these video games.
    And then finally, and most importantly, the St. Louis 
County case was argued more than 3 years ago, and the court 
determined at that time that there was no compelling State 
interest because they were unable to find a credible link 
between excessively violent video games and psychological 
health of children. And if you actually read the case, you will 
see that almost nothing of value was offered. One psychologist 
testified in court--
    Chairman Brownback. Mr. Johnson, let's wrap it up here if 
we can.
    Representative Johnson. Thank you. The difference is that a 
lot has happened in the last 3 years, and, frankly, I think we 
have heard in the last hour more evidence than what the Eighth 
Circuit was presented. So my belief, and my strong belief, even 
though I may have a misplaced faith in the court system, is 
that our case will survive a constitutional challenge.
    Thank you.
    [The prepared statement of Mr. Johnson appears as a 
submission for the record.]
    Chairman Brownback. Thank you.
    Mr. Smith?

 STATEMENT OF PAUL M. SMITH, JENNER AND BLOCK LLP, WASHINGTON, 
                              D.C.

    Mr. Smith. Thank you, Mr. Chairman and Ranking Member 
Feingold and members of the Subcommittee. I appreciate the 
opportunity to come before you today to discuss the 
constitutionality of State regulation of violent video games, 
and I ask for consent that my full statement, including the 
relevant attachments, be made a part of the hearing record.
    Senator Feingold. [Presiding.] Without objection.
    Mr. Smith. My perspective is that of an appellate advocate 
who has litigated First Amendment issues for the better part of 
three decades. Most recently I have represented the video game 
industry in litigation regarding the constitutionality of State 
laws that ban distribution to minors of video games with 
violent content. In each of those cases, as well as every other 
case to consider the issue, the courts have struck down legal 
restrictions on minors' access to violent video games. Those 
outcomes reflect the fact that there is no general exception to 
the First Amendment for laws that target minors' access to 
protected speech. Any attempt at such regulation of 
distribution of video games based on their violent content, 
either at the State or Federal level, would under no 
circumstances that I can contemplate be upheld.
    Every court that has looked at this has found that the 
State regulation in question did not pass constitutional muster 
because the Government lacks a legitimate and compelling 
interest which must be based on substantial evidence in the 
record for restricting violent video game content and access by 
minors. The kinds of testimony presented here today in favor of 
legal restrictions on video games have been rejected out of 
hand by every court that has considered them.
    First, as a matter of law, any attempt to justify content-
based suppression of speech based on the theory that particular 
content carries too much risk of causing listeners to engage in 
bad behavior is categorically ruled out under the First 
Amendment. Our Constitution mandates that the Government 
regulate behavior, not speech that is perceived as likely to 
cause undesirable behavior among listeners or recipients. There 
is only a single very narrow exception to that rule, the 
Brandenburg incitement standard, and that test requires that 
the speech have been intended to and e likely to incite 
imminent lawless action like a mob being whipped up in the 
street. As the courts have recognized, video games do not 
remotely meet that standard.
    Similarly, courts have rejected the argument that 
restrictions on violent video games can be justified as a means 
to prevent psychological harm to minors. That is because the 
Government does not have a legitimate let alone compelling 
interest in regulating speech in order to affect citizens' 
thoughts, attitudes, and personalities. This is through for 
minors as well. The Supreme Court has made abundantly clear 
that the Government cannot suppress speech to minors solely to 
protect the young from ideas or images that a legislative body 
thinks unsuitable for them. That is simply not a role that the 
Government may play in our society.
    In any event, factually, the social science claims that 
minors who are exposed to depictions of violence in video games 
are more likely to experience feelings of aggression, to 
experience a reduction of activity in the frontal lobe of the 
brain, or to exhibit violent anti-social or aggressive behavior 
have found absolutely no judicial acceptance. Courts have 
considered them wholly unpersuasive and not even approaching 
substantial evidence, and one factor in that is the precipitous 
drop in youth violence per capita that has occurred in this 
country since 1994 when the most violent and graphic games were 
introduced in the range of a 43-percent reduction.
    Now, singling out video games from all other media 
containing violent images constitutes another fatal flaw in 
State video game legislation. Because movies, books, magazines, 
music, art, television, the Internet, to which almost all 
modern American children are exposed, are left unaffected by 
these laws, they cannot conceivably advance any purported State 
interest. In addition, courts require that a regulation of 
expression be the least speech-restrictive means available to 
achieve the bill's end. Given the multitude of other options 
available to the Government, such as parental education and 
parental controls that are being installed in the video game 
machines themselves, legislative censoring of violent video 
games has consistently been held unconstitutional.
    Finally, it is worth noting that the proposed Federal 
legislation restricting access to video games would fare no 
better than the State regulations that have been struck down. 
The proposed Federal Family Entertainment Protection Act would 
impose Federal penalties on the sale or rental of a video game 
rated M for mature or AO for Adults Only by the ESRB to minors 
under the age of 17. Like the State laws, the proposed Federal 
act would impose a content-based restriction on expression that 
is fully protected by the First Amendment and would without 
question be struck down by the courts.
    For all of these reasons, among others, I urge this 
Subcommittee not to support unconstitutional legislation that 
has been consistently struck down in courts around the country. 
Even beyond their repugnance to the Constitution, it is clearly 
the view of the courts, and likely most Americans, that 
families and not the Government should be making the decisions 
about what type of content children should be exposed to.
    Thank you, and I look forward to answering any questions 
that you may have.
    [The prepared statement of Mr. Smith appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Mr. Smith.
    Professor Saunders? And we just called for a vote. My 
colleague went over for that. We will hear your testimony, and 
then hopefully he will be back after my questioning, and we can 
keep this going without going into a recess. Professor 
Saunders?

  STATEMENT OF KEVIN W. SAUNDERS, PROFESSOR OF LAW, MICHIGAN 
            STATE UNIVERSITY, EAST LANSING, MICHIGAN

    Mr. Saunders. Mr. Chairman, I want to thank you and the 
Committee for the opportunity to share my thoughts on the 
shielding of children from violent video games. Those thoughts 
are set out in more detail in my written statement. I am Kevin 
W. Saunders, Profess of Law at Michigan State University. I 
have spent the last dozen years studying the constitutional 
issues surrounding attempts to limit the access of children to 
depictions of extreme violence, and I have been involved in 
most of the recent round of attempts to so limit children. I am 
bothered by the view that while these games are poison, the 
First Amendment requires that children have access to that 
poison. While the attempts have thus far been struck down, 
there are bases on which restrictions may overcome First 
Amendment limits.
    I also would say I agree that the first line of defense 
does have to be families, but I think families need help, that 
you cannot ride herd over your child every minute of every day, 
and by simply requiring that materials not be provided directly 
to children, it requires that their parents make the one-time 
decision to provide that material or not to provide that 
material.
    Turning to those bases, the first two potential bases I 
will mention only briefly have met with at best limited success 
in the courts, and later courts may take the earlier decisions 
as authoritative, although the Supreme Court has not ruled on 
the theories involved. One approach is to argue that 
sufficiently violent material, when presented to children, may 
be obscene. I argued for this thesis in my book ``Violence as 
Obscenity,'' and it was accepted by the Federal district court 
in the Indianapolis litigation but was rejected by the Seventh 
Circuit. It is important to note that the Supreme Court has 
never ruled that violent material cannot be restricted. It has 
struck down a violence statute as vague, but specifically 
warned against the more general conclusion that violent 
material cannot be restricted.
    The second theory is that video game play, like the play of 
pinball machines, is not an activity protected by the First 
Amendment. This was the theory of the district court in the St. 
Louis case, but it was rejected by the Eighth Circuit. The 
important distinction, one not spelled out by either court, is 
between the creative activity of the programmer and the 
communication of the product of that activity to the player on 
the one hand and the player's playing of the game on the other. 
This sort of distinction was recently recognized by the Fourth 
Circuit in distinguishing between the band at a community dance 
and a dancer on the floor.
    The theory to which the courts have paid the most attention 
is based on the claim that, even if violent video game play is 
protected by the First Amendment, restrictions may stand based 
on the danger the games pose. Infringing a constitutional right 
does not mean the limitations are necessarily struck down. 
Instead, a restriction must meet strict scrutiny. It must be 
narrowly tailored to a compelling governmental interest. All 
the courts have accepted that physical and psychological well-
being of youth is a compelling interest, but the courts have 
not been willing to find the restrictions necessary to that 
interest.
    The courts have questioned the scientific studies and have 
questioned whether evidence of correlation between violent 
video game play and real-world violence demonstrates causation. 
This is particularly interesting given the overwhelming 
consensus of the health and science community that media 
violence causes real-world violence.
    As an aside, let me say there is a new body of evidence 
developing that was not presented today, a neuroscience in the 
violent video game play on the development of brains in 
adolescents, a study at the Indiana University Medical School 
that shows a difference in functioning in the prefrontal cortex 
of children with exposure to violent media. This was raised in 
the Illinois case. The industry produced a witness who said, 
well, maybe this judgmental function is being done in some 
other part of the brain. No evidence that it is being done in 
any other part of the brain, but it could happen, I suppose. 
Even if that is true, it still shows a brain dysfunction that 
is similar to that of children who have disruptive 
developmental disabilities. So I think that is a developing 
area that needs to be followed.
    I am not a scientist. I do not have the understanding of 
the issues that others testifying today do have. It seems 
likely that none of the judges involved have been scientists 
either, and we would almost be open to recognizing the 
continuing development of this area of research, both 
psychology and neuroscience.
    From a legal point of view, it is important to note that 
the courts' decisions on the scientific issues can have no 
long-term precedential effect. Unlike conclusions of law, the 
conclusions on science are contingent. A court's conclusion 
that the science fails to establish the danger perceived by the 
public and the legislature is only a conclusion that the 
science at the time was lacking. It does not establish the 
conclusion that the science at the time of any future 
legislation or litigation is also lacking. Each time the issue 
arises, the courts must consider the science anew.
    Last, returning to the issues I addressed in a recent book, 
``Saving Our Children from the First Amendment,'' that argues 
for lesser First Amendment protection for expression to 
children, I think it important to consider the costs of two 
possible errors here. If violent video games do cause an 
increase in real-world violence and courts refuse to allow 
limitations, the cost is psychologically damaged children and, 
in the extreme, deaths. For the other possible error, allowing 
restrictions when media violence does not, in fact, have the 
effects suggested, the costs would seem to be to the values 
behind the First Amendment. But the most important values 
served by protecting free expression are those tied to self-
government. To be self-governing, we must have access to 
information, but children do not vote. True, as Judge Posner 
argued, they need to be competent voters when they turn 18, and 
that is why I have counseled legislators to set limits at 17. 
That allows a year to play as many violent video games as it 
takes to become a competent voter. The other major value 
thought by some to underlie the Expression Clauses is autonomy, 
but we do not really believe in autonomy for children, or we 
would allow them to smoke and drink.
    I hope legislatures will continue in their efforts to 
protect children from this serious danger. Absent a Supreme 
Court decision on the issues, at least some lower courts may 
consider the constitutional theories suggested. Even with a 
negative Supreme Court opinion on all the issues, a failure to 
find adequate science at one point does not bar legislation and 
litigation at a later point. Despite past losses, as the 
science continues to develop, the effort can continue, and the 
danger theory is never permanently dismissed.
    Once again, thank you for this opportunity.
    [The prepared statement of Mr. Saunders appears as a 
submission for the record.]
    Chairman Brownback. Thank you, Professor Saunders, for the 
testimony and you work in this area. I have a few questions I 
want to try to ask, and I will ask I be advised when the vote 
is down to 2-1/2 minutes. If my colleague has not come back, 
what we will do is probably adjourn at that point in time if he 
is not being with 2-1/2 minutes left on the vote. I might ask 
if his staff could find out if he is definitely coming back.
    Representative Johnson, what would be the most useful or 
helpful thing we could do at the Federal level, for you at the 
State level in dealing with this issue? What information, what 
could we do to be the most helpful?
    Representative Johnson. Mr. Chairman, I think two things 
come to mind. No. 1, anything you can do to provide more 
evidence than we already have--and I am under the impression 
that there may be enough there in front of a certain court to 
show a link and a compelling State interest. But anything that 
the Government could help establish in that area by funding 
something would be very helpful. And then as I mentioned, I 
think at least there should be a discussion of a rating system 
different than what we have, and I don't think the rating 
system we have is necessarily wrong, but I think it does pose 
some separate potential constitutional problems.
    Chairman Brownback. More information in the rating system?
    Representative Johnson. No. A rating system that is done by 
a separate entity.
    Chairman Brownback. Outside group.
    Representative Johnson. Yes.
    Chairman Brownback. We have been looking at that for some 
period of time, and this is one, you know, where you have got 
the manufacturers that set up the entity to rate it, it does 
not lend much confidence to me about the independence of that.
    Professor Saunders, what should we do at the Federal level 
to be most helpful for these State and local efforts?
    Mr. Saunders. Clearly, anything that can be done to help 
further research on both the psychological and the neurological 
issues I think would be important. There is, of course, always 
the possibility of a Federal statute as well, and Congressional 
findings of fact may help to show up alongside the testimony 
that has been offered by psychologists.
    Chairman Brownback. Anything on ratings, any studies on 
target marketing? We have seen a number of people in the 
entertainment industry target, market age-inappropriate 
material where they would take an M-rated item and market it to 
a 10-year-old?
    Mr. Saunders. The problem, of course, in that area is that 
it is not illegal to provide the material to children. If you 
are advertising illegal material to an audience--cigarettes to 
children, for example--then there is a legitimate basis to go 
about that. Not that I do not think it would be legitimate, but 
under the court's view of the First Amendment, children would 
have a right to this material.
    So you are going to have to get around the problems that 
have been raised in the legal decisions so far in order to do 
what you are suggesting.
    In terms of whether or not the ratings are adequate, I am 
not an expert in terms of the ratings, and I have been content 
so far to try to at least enforce the ratings. The games that 
the industry itself says are inappropriate to children, simply 
try to get stores not to sell those games to children. And the 
industry, despite saying these games are inappropriate for 
children, comes in and fights us in litigation and says we have 
a right to sell these games to children and children have a 
right to buy them.
    Chairman Brownback. Ms. Vance, I want to ask you, you 
represent the industry, have done so very effectively. A lot of 
these games turn your stomach, too, don't they, when you see 
these clips?
    Ms. Vance. I certainly would not bring some of those games 
home for my children.
    Chairman Brownback. And yet they are part of your industry 
group. They are manufactured by people that are part of your 
industry or association?
    Ms. Vance. Well, anybody can submit a game to the ESRB to 
be rated.
    Chairman Brownback. But I am having a little difficulty 
understanding. If you look at these and you are just saying, 
you know, killing a cop and then putting him on fire with 
gasoline and kicking him in the groin, that does not seem to be 
really encouraging scenery to put forward. Why wouldn't the 
organization itself just drum out people, saying, you know, 
look, we have got certain standards, we think this is important 
that people be able to have access to it? Why doesn't the 
industry itself police some of those items and saying this is 
just degrading to our industry?
    Ms. Vance. Well, our job is not to censor. Our job is to 
make sure that the product is accurately labeled, and all the 
games that were shown were--
    Chairman Brownback. I am not asking you to censor. I am 
asking you to look after your own industry.
    Ms. Vance. I represent consumers. That is my mission. I 
want to make sure that consumers are informed and the 
information is on all the packages and in all the advertising 
is informative. And the games that you are specifically 
referring to are all rated for 17 or 18 and older.
    Chairman Brownback. So there is nothing that would not be 
inappropriate for your industry to put out for sale?
    Ms. Vance. Again, our job is not to censor. Our job is to 
enforce the system that we have, which means that--
    Chairman Brownback. But I just want to understand that 
there is nothing that would come across the industry that you 
guys would say we just are not going to let you guys be a part 
of this industry, we are not going to allow you to be a part of 
this association. You are just saying, look, we do not censor 
anybody, so everything is legal and everything is OK.
    Ms. Vance. If it is a game, we will rate it. We can rate it 
in the most restricted categories, and we can apply a number of 
content descriptors that would be very informative to consumers 
before they purchase. But our job is not to censor.
    Chairman Brownback. Nothing inappropriate.
    I noted, too, you were saying that most game aren't M-
rated, yet in 2004, the top two video games sold were, No. 1, 
``Grand Theft Auto San Andreas,'' No. 2, ``Halo.'' Both are M-
rated, involving extreme violence and sexually explicit scenes.
    Ms. Vance. In 2004, there were three games in the top ten. 
In 2005, there were no M games in the top ten.
    Chairman Brownback. You were not fully representing things. 
You may have said ``last year'' but the year before--
    Ms. Vance. I did say ``last year.'' I did say ``last 
year.''
    Chairman Brownback. But the year before that, I would hope 
you would fully represent the industry that is saying, now, 
wait a minute, we had a pretty good M-rated year in 2004.
    Ms. Vance. The games themselves in terms--
    Chairman Brownback. Is that true?
    Ms. Vance. I am sorry. The question was?
    Chairman Brownback. In 2004, your top two games were M-
rated.
    Ms. Vance. They were, sir. They represented about 15 
percent of the sales overall in the industry.
    Chairman Brownback. The top two rated in sales.
    Ms. Vance. They were.
    Chairman Brownback. So congratulations for selling a lot of 
violent games in--
    Ms. Vance. I did not sell them, sir. I just rated them, and 
they were both rated for 17 and older.
    Chairman Brownback. I am going to have to slip on out. We 
will go into recess until Senator Feingold can come back. I 
have got to get over and vote, and when he comes back, then he 
will reconvene for some more questions.
    Thank you very much. We are in recess.
    [Recess 3:50 to 3:56 p.m.]
    Senator Feingold. [Presiding.] I will call the Subcommittee 
hearing back to order, and I understand it is my opportunity to 
ask some questions of the panel, which I appreciate.
    The factual questions that the first panel examined seem to 
have played a significant role in the court's evaluation of 
State and local regulations of video games. I understand the 
goals of these well-intentioned State and local legislators has 
been to protect children from possible ill effects of playing 
these games.
    For the lawyers and the legislator on the panel, to what 
extend do each of your legal arguments about the 
constitutionality of these laws depend on whether violent video 
games can be proven to cause violent behavior in children? And, 
more generally, why do you think courts have consistently 
struck down laws attempting to regulate violent video games? 
Let's start with Representative Johnson.
    Representative Johnson. Thank you, Senator. I have paid 
most attention, to be honest, to the one case in my own 
jurisdiction, which is that Eighth Circuit case, and that court 
clearly struck down--one of the reasons it struck down the 
ordinance in that case was that there was scant, if any, 
evidence presented of a link between violent video games and 
behavior, negative behavior with kids.
    My understanding, without being a scientist myself but just 
from sitting here even today, is that the science has advanced 
in the last 3 to 4 years, and so my belief is that there is 
more evidence to present, certainly a lot more evidence that 
was presented to that particular court. And without having 
thought through all the different arguments we could make, I 
think that is an important piece of my argument with respect to 
the constitutionality of our particular statute, that we are 
going to have to show that there is a compelling State 
interest. It is going to be hard to get past the protection 
that is there without showing that. So I believe that it is 
going to be necessary, but I also believe that we can do it.
    Senator Feingold. But in terms of all the different courts 
that have struck this down, obviously you are aware that there 
is a concern about content-based regulation.
    Representative Johnson. Of course.
    Senator Feingold. Could you comment on that you acknowledge 
that--to what extent you acknowledge the danger of such things?
    Representative Johnson. Oh, absolutely. I entirely agree, 
and that is why we have tried to craft such a narrow bill, 
because part of the argument in the other cases was that there 
was not enough evidence to show a compelling State interest, 
but there are also arguments in those cases that either the 
statute was unconstitutionally vague or was too broad, and we 
have tried to address all three of those issues, or at least 
the latter two that we can address, in our bill. So I think it 
is a unique bill in that way, and that is why I am hopeful at 
the very least that we could pass muster with the court.
    Senator Feingold. Thank you, Representative.
    Mr. Smith.
    Mr. Smith. Yes, Senator, I think it is not simply a factual 
issue. As I said in my statement, there is a very, very high 
legal standard, which is the strict scrutiny standard, which is 
never--I cannot think of a single example in the history of the 
Federal courts where a content-based law which has been 
subjected to that level of scrutiny has been upheld. In 
addition, you have this Brandenburg principle that if your 
justification is we think the people who receive the speech are 
going to behave badly, that is not a justification 
categorically.
    So I think there are very high legal hurdles that on their 
face are almost impossible to get over. There is, however, a 
factual problem as well. We had a trial last November in the 
Illinois case where the leading researcher in this area, who is 
an advocate of legal regulation, a psychologist, Dr. Anderson 
from Iowa State, took the stand and had to actually explain on 
cross-examination the limitations of the research that is out 
there. And he acknowledged, as he had to, that there is no 
long-term causal inquiry that has ever been made into the 
effects of video games. The evidence of that kind is not there. 
But he also acknowledged that what studies do exist do not show 
that children are more vulnerable to effects than adults. They 
do not show that video games are any more severe in their 
effects, even under his standards, than television. And they do 
not show that the graphic kinds of games that we have seen here 
today have any more severe effects than the cartoonish games 
that are created for little children.
    So the research that he himself was conducting and 
describing--and he does eight out of ten of the studies that 
anybody ever cites--is so limited in what it tells the courts 
that it does not even get them to first base, frankly.
    Senator Feingold. Well, I think it is useful that you make 
the clear distinction between causality and the legal standard, 
which are two important distinct issues.
    Professor Saunders?
    Mr. Saunders. There are a lot of cases that have been cited 
here, and in my statement I talk about two of them--or really 
three of them in terms of obscenity, in terms of being not 
protected by the First Amendment, like pinball games and in 
terms of different layers of protection, different levels of 
protection from the First Amendment. But it is easiest to get 
the court to accept a challenge, I think, based on danger than 
on accepting a new view of the Constitution.
    I think there are problems with judges understanding 
statistics. In that Illinois case, the judge said something to 
the effect of some studies do not show this kind of 
correlation, and some studies, in fact, show a negative 
correlation. And I am suggesting, you know, if you look at 
baseball statistics, I might out-hit--well, I would never do 
it, but I might have out-hit Ted Williams in one game, but that 
does not mean that I am a better hitter than he is, or was. It 
is over a season that you make those distinctions, and meta 
analysis which Dr. Anderson has done does tend to show--to even 
out the variations from study to study.
    It surprises me that Professor Anderson made that 
admission, if he made that admission, because he has in one of 
his articles called violent video games ``the perfect learning 
environment for violence,'' indicating that they are different 
from television.
    Senator Feingold. Thank you, Professor.
    One more question. Mr. Smith and Professor Saunders, how 
have courts treated laws regulating the use of video games by 
children as opposed to adults? Is there anything comparable to 
the ``harmful to minors'' doctrine in the indecency context?
    Mr. Smith. The courts have repeatedly rejected that 
argument, that there should be a lesser standard, an argument 
that Professor Saunders made very eloquently in some of his 
published writings. But the courts in at least three circuits 
have said that there is no ``harmful to minors'' exception 
except for sexual content, obscenity. And that is the Eighth 
Circuit, the Seventh Circuit, and the Sixth Circuit have all 
rejected the notion that we are going to apply a lesser 
standard than strict scrutiny just because somebody comes in 
and says it is a violent and we should call it harmful to 
minors.
    Senator Feingold. Professor?
    Mr. Saunders. Mr. Smith is correct there. The Sixth Circuit 
cases were before my work was published in that area, but the 
Seventh Circuit case, the district court in Indianapolis 
accepted the theory, and the Seventh Circuit rejected it. The 
Eighth Circuit, it was not the focus of the arguments in those 
cases, but it was not accepted there either.
    Senator Feingold. It is my understanding the Chairman wants 
me to conclude the hearing. Is that correct? Or does he want to 
come back?
    All right. Well, I believe the Chairman wants me to 
conclude the hearing. Let me thank the witnesses on both panels 
very much for your testimony and your hard work in responding 
to our questions. We look forward to working with you on this 
issue, and I thank you all.
    This concludes the hearing.
    [Whereupon, at 4:03 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]
    [Additional material is being retained in the Committee 
files.]

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