When Federal Trade Commissioners Attack
by Daniel Greeberg
© 2000 by Daniel Greenberg
"I am shocked, shocked, to find that gambling is going on here." -Renault, Prefect of Police in Casablanca
On September 11 of 2000, the Federal Trade Commission released a 300 plus page report on the "Marketing of Violent Entertainment to Children."
What Did the FTC Conclude?
- Companies in the Electronic Game Industry Routinely Target Children Under 17
- Retailers Make "Little Effort" to Restrict Access to Violent Material
- Industry Needs to Take Additional Steps to Improve Existing Rating Systems
What Action Did the FTC Call For?
- Expand codes that prohibit target marketing to children and impose sanctions for violations
- Increase compliance at the retail level.
- Increase parental understanding of the ratings and labels.
Why Now? In a word, Columbine. President Clinton requested the one million dollar study in June 99, two months after the school shooting in Littleton, Colorado. (If you want another word, Elections; members of Congress, the President, the candidates and various candidates' wives have all staked a claim to this hot issue.)
How Did They Conclude This? For their "smoking gun," the FTC turns to voluntarily supplied memos and marketing plans from game publishers (and movie studios and record labels). Of 118 Mature rated electronic games, they found that 70% targeted children under 17.
What Do They Want Us To Do? The FTC is seeking an end to advertising Mature rated games in "venues with a substantial under-17 audience." They want stores to check IDs before selling M rated games. They want publishers to place descriptions of the "reasons for the rating" on the packaging and "better educate parents about the ratings and labels."
What Will They Do To Us If We Don't? The FTC has no law enforcement powers, but when its informal investigations become formal, it can subpoena witnesses and levy fines against companies it deems to be out of compliance with federal trade laws. The Department of Justice, which collaborated on the study, has plenty of enforcement power, and some have called on the DOJ to attack the industry just like they went after the tobacco companies.
Private organizations that criticize video games have also called for the application of laws against false advertising. Lawmakers are interested in using the study as a springboard to new legislation. For example, a proposed Senate gun-control bill would prevent violent movies and TV shows from filming on federal land.
Some in Congress want the National Institutes of Health to conduct a study on how children are affected by violent music and video games, in hopes of producing a study that could be used to justify a more elaborate crackdown. Senators Joe Lieberman (D-CT) and John McCain (R-AZ) introduced legislation to impose a single rating system on video games, movies and music (but not books).
What's Conspicuous for Its Absence? A call for legislation. New legislation is hinted at, but not recommended, due primarily to First Amendment issues. Agencies that call for legislation that gets thrown out by the courts are agencies that tend to lose credibility. Losing credibility causes a loss of influence, and then a loss of power. Unfortunately, passing unconstitutional legislation does not seem to hurt Congress, which has been passing record numbers of broad, sweeping, crowd-pleasing laws that are flatly unconstitutional and are struck down even in conservative courts. Remember the first Internet indecency law, the Child Online Protection Act? Legal experts testified that the law was flatly unconstitutional, but Congress tucked it into a bigger bill and voted for it in big numbers. Lawmakers scored political points for passing it, knowing that the Supreme Court would throw it out as junk litigation. However, FTC Chairman Robert Pitofsky told the Senate Commerce Committee that, "If it turns out that self-regulation does not solve these problems and that current law is inadequate, legislation, respectful of the First Amendment, should be considered."
Impact on Game Developers
The FTC report reminds me of the scene in the great movie Casablanca, when the Prefect of Police is commanded to close Rick's American Café, and he indignantly huffs "I am shocked, shocked, to find that gambling is going on here."
The FTC report is shocked, shocked, to discover that children like violent entertainment. How could such a thing be? It must be because unscrupulous companies are manipulating them through deceptive marketing.
So Is It Time to Panic? No. For two reasons. The First Amendment and the facts.
The Constitution Rears Its Ugly Head
The key to understanding the FTC recommendations is to note that everything they ask for is voluntary. (Though the word "voluntary" is in danger of losing its meaning when it's followed by "or else the government will take action.")
The FTC is requesting that the industry change without further legislation. This is partly because the FTC is on very shaky Constitutional grounds and the FTC knows it. In calling for the study, the President noted the need to "value the First Amendment right to free speech."
The report grudgingly admits the limits of government power right on the second page of the Executive Summary. "Self-regulation by these industries is especially important considering the First Amendment protections that prohibit government regulation of content in most instances."
But the industry's most vocal critics are not nearly as outspoken on rights. Groups like the Lion and Lamb Project seldom mention Constitutional protections. One of the few places the Lion and Lamb website acknowledges First Amendment protections is in a 1999 article that incorrectly predicted that the FTC study "won't be ready until the 2000 election is over" and calls the report "lame" before it was even written (apparently under the false impression that the FTC would not actually criticize the media).
Violent Media Does Not Cause Violent Behavior
For years, criminologists, biologists, and sociologists have told us that violent media is not even a significant factor in causing or preventing violence. This is something that the even the FTC had to grudgingly admit.
In his remarks before the Senate Commerce committee's hearings, FTC Chairman Robert Pitofsky said "Although scholars and observers generally have agreed that exposure to violence in entertainment media alone does not cause a child to commit a violent act, there is widespread agreement that it is, nonetheless, a cause for concern."
The report itself says the viewing of entertainment media violence "is not the sole, or even necessarily the most important, factor contributing to youth aggression, anti-social attitudes, and violence."
I pressed this point with FTC Consumer Protections Bureau Director Jody Bernstein on C-SPAN's Washington Journal, and she admitted in unambiguous language that "there is no scientific evidence that links directly conduct from viewing." Thank you, Director Bernstein.
Political Science: Change the Facts to Fit the Hypothesis
The FTC's unwillingness to go so far as to assert a causal link is very important, because many in Congress have made it clear that they would like some respected organization to give them just such a claim.
Sen. Sam Brownback, R-Kan., a leading proponent of the scientifically unfounded notion that media violence causes real violence asked for such a statement, and four groups complied: the American Medical Association (AMA), the American Academy of Pediatrics, the American Psychological Association, and the American Academy of Child & Adolescent Psychiatry.
In July of 2000, the board of directors of these four groups issued a statement saying that over 1,000 studies "point overwhelmingly to a causal connection between media violence and aggressive behavior in some children." It also said "the conclusion of the public health community, based on over 30 years of research, is that viewing entertainment violence can lead to increases in aggressive attitudes, values and behavior, particularly in children."
Junk Science: Inventing Causality Without Reading the Research
But rank and file members of these health groups were quick to dispute the statement made by the groups' boards.
University of Toronto Department of Psychology professor and psychologist Jonathan Freedman called the AMA statement "irresponsible." Freedman, who has studied the extensive research into media violence and violent behavior, said, "It's incredible. The scientific evidence does not support what they are saying. In fact they claim that it does, and that is simply incorrect in my opinion."
Freedman said that some of the studies have suggested a causal link between media violence and violent behavior by children, but "the majority of them do not. Normally, in science, you expect to get consistent results. It's irresponsible for any scientist to say that given the distribution of (these) results, this is proven."
It would be better if the health groups said the link was "based on our intuitions and experience. But putting it in terms of what scientific evidence shows is irresponsible and absolutely wrong. I would challenge the AMA to bring forth any member of their board who has read it (the research)."
Turns out Freedman was right. Again. When the AMA spokesman Dr. Edward J. Hill was asked if the AMA board had read the research before issuing the report, his answer was unbelievable. Hill admitted that NOT ONE MEMBER of the AMA board had actually read the research. And Hill confessed that he had not read it either. In defending this lapse, Hill compared studies into media violence/real world violence to studies on tobacco/cancer.
But Freedman dismissed the tobacco comparison as "really insulting." He said of the smoking studies "There the evidence is extremely powerful and consistent and convincing. That is not the case with (violence) research."
I Have Here In My Hand a List of 1000 Studies.
Compounding the problem, the AMA did not reveal that their statement was made at Senator Brownback's request. Instead, they announced the statement as if it was a new conclusion they had come to in just the same way as they had come to any other sound, scientific judgment; in a petrie dish free from external political contamination.
In fact, the political origin of the statement was not disclosed when it was announced. It was only revealed under questioning. Making matters worse still, the AMA report on the subject has not actually been written.
The AMA mentions "1000 studies," but they have no such list. There may not even be 1000 studies into children and media violence at all, and there certainly are not 1000 studies that find a clear and unambiguous causal link. The statement is an insult to science, and has made cowards of all four groups. When Galileo sold out science, at least he did it under threat of death.
Fortunately, the FTC did not buy into the health groups' profile in cowardice. Instead, the FTC wisely backed away from the AMA's craven statement, and rejected a causal link in clear terms. Remember that the next time someone trots out the AMA's "1000 studies." Ask them why the FTC flatly contradicts the AMA's claim.
So What ARE the Important Factors in Youth Violence?
The FTC goes on to report that several major public health organizations and "the researchers and advocates who have studied youth violence, posit that a range of other factors - such as child abuse and neglect, victimization, bullying, drug and alcohol abuse, exposure to violence in the home, neurobiological indicators, and low socioeconomic status - can interrelate to cause youth violence.
After dropping this bombshell, the FTC report quickly gets back to the business at hand: marketing of violent entertainment. But we need to pause a moment and look at what has been said. Do these eight non-media factors have anything in common? Oh yes. They are all factors that put the responsibility squarely back on the shoulders of parents. Let's look at them again:
The Real Factors in Youth Violence, According to the FTC:
- Child abuse.
- Child neglect.
- Drug and alcohol abuse.
- Exposure to violence in the home.
- Neurobiological indicators.
- Low socioeconomic status
The Real Factors Are Tough to Digest
It's easy to summon a panel of video game publishers to a Congressional hearing for a scolding about this "concern." But for the real factors, who do you scold? Who do you call to complain about children being neglected and bullied? Who do you indignantly tirade against when the problem is the greatly misunderstood subject of mental illness?
According to child and adolescent psychiatrist Preston Wiles, a clinical associate professor at Yale University, "psychiatric illness is frequently the primary cause of violent behavior in children. We're all concerned about cultural deterioration, but if you look at youth offenders, the rate of undetected psychiatric illness is extraordinarily high." In discussing the debate about children and violence, he says that "to leave mental health out is nuts." (Roots of Child Violence Run Deeper Than Hollywood, by Abigail Trafford, Washington Post, September 22, 2000.)
There are very effective treatments for youth mental disorders. But parents, coaches, teachers, administrators, and community leaders have to be sensitive to the issue to identify children in need, and, realistically, how many know what to look for?
Worse, "the mental health system for children and adolescents in this country is in disarray," according to the Washington Post. "An estimated 12 million to 15 million youngsters need mental health care."
After Columbine, "the demand for psychiatric services has skyrocketed. But services, from hospital beds to outpatient therapy groups and classroom supports, are inadequate."
As for Columbine, it's important to note that many of the above factors in youth violence were very much in evidence.
Subsequent news reports revealed that not only was bullying rampant at Columbine High School, but the teachers indulged the worst of the bullies' sadistic behavior. Columbine was a school where "the homecoming king was a football player on probation for burglary." (See "Dissecting Columbine's Cult of the Athlete," Washington Post, June 12, 1999, Lorraine Adams and Dale Russakoff.)
This was not the "normal" school it was painted, but a place of "injustices suffered at the hands of athletes" where "almost no one -- not teachers, not administrators, not coaches, not most students, not parents -- took the problem seriously."
Teachers saw routine violence by star athletes against the rest of the student body and did nothing to stop them. "In the halls, body slams were common." Star athletes sang pro-Hitler songs to taunt Jewish students within earshot of unconcerned coaches. Girls that were sexually harassed by the athletes also suffered the indifference of coaches and teachers. Black students also suffered open racial abuse.
Not only did administrators do nothing to stop these abuses, but also they rewarded their star athletes with privileges unavailable to the bullies' victims. Columbine is a textbook case of victimization, child neglect, and even child abuse by parents, teachers, administrators, and even community leaders. There is far more evidence of inconsistent discipline being a factor in youth violence than media violence.
We can also add drugs and "neurobiological indicators" into this lethal mixture, since Eric Harris was on antidepressants. None of these factors should be construed as justifying the killings, but it explains them a lot more than blaming video games.
So Why Blame Video Games?
In light of these factors-- factors the FTC itself acknowledges are more important than entertainment violence -- the single-minded zeal to focus on video games as a matter for "concern" in Columbine begins to seem misguided and foolish. Where are the hearings on complicity of school administrators in breeding a seething cauldron of abuse, bullying and neglect? Where are the hearings on whether community leaders have the ability to steer parents of troubled children to effective mental health resources? Where are the hearings on the near-criminal lack of mental health resources for suicidal and homicidal youths who are identified?
Blaming commercial media is easy. Blaming school administrators and coaches and community leaders is politically dangerous. Blaming parents is even more politically risky and is rarely done in an era of scapegoating and easy answers to complex problems.
Interestingly, President Clinton was not willing to let parents get completely off the hook. When he first called for the study, he blamed part of the problem on the fact that "parents on average spend 22 hours a week less with their children than they did 30 years ago." Sadly, there's little evidence of this enlightened attitude about parental responsibility in the FTC report.
So What's the Cause for "Concern" With Video Games?
The report says, "Even those who disagree that media violence causes violent behavior, however, concede that a child's exposure to violence can be a concern. (Footnote 15)"
And what is the source of this vague and ill-defined concern? For that you have to see Footnote 15, which is illuminating. It says:
"15. See, e.g., Jonathan Kellerman, Savage Spawn: Reflections on Violent Children (1999) (acknowledging that entertainment media violence might cause an adolescent who is already prone to violent behavior to engage in harmful conduct)."
That's it. (The rest of Footnote 15 is studies about the amount of time children spend with media- not even violent media.)
So, according to this, all the FTC has gained for its million-dollar call to action is to determine that for the vast majority of children -- who are not "already prone to violent behavior" -- there is a lack of serious data to justify anything but a vague "concern" about media violence.
In my opinion, this report is a lot of fuss over a link to violent behavior that "might" exist only in adolescents "already prone to violence." If the child is "already prone to violent behavior," he has a much larger problem than his entertainment. Based on this study, I can see the wisdom of wanting to curb a violent child's diet of media violence. But for the vast majority of healthy kids, the FTC's "concern" might be better applied to one of the many factors that have solid evidence to back it up.
No wonder the cause for "concern" on which the whole report hinges was tucked away in a footnote. To me, this is like saying that because asthmatic children might have health consequences from running, we should be "concerned" about selling running shoes to all children.
Marketing Violence to Children?
The main issue for the FTC is that games rated as suitable for adults get sold to children. On this score, I agree with the FTC. Stores should not sell M rated games to kids without parental permission. Period.
However, on the marketing front, I disagree. The FTC faults video game companies for advertising violent fare on TV programs "ranked as the "most popular" with the under-17 age group, such as Xena: Warrior Princess, South Park and Buffy the Vampire Slayer; magazines and Internet sites with a majority or substantial (i.e., over 35 percent) under-17 audience, such as Game Pro, Seventeen and Right On!, as well as mtv.com, ubl.com and happypuppy.com; and teen hangouts, such as game rooms, pizza parlors and sporting apparel stores."
They also found fault with advertising on WWF and WCW Wrestling, because they "cross over to Children 6-11 and local television buys targeted this group as well."
Has the FTC not noticed that Buffy and Xena are shows with violence (though limited blood) and WWF and WCW Wrestling are extremely violent shows? South Park is a mature TV program shown only after 10:00 pm. Parents who permit their kids to watch these programs have already made a judgment about what they want their children exposed to.
The FTC is shocked, shocked, that children see ads for violent games on violent TV shows.
Limiting Adult Choices
I find it troubling when the government considers actions that could limit the choices of responsible adults in the name of protecting children.
Government and the press continually paint video games and computer games as primarily or even exclusively entertainment for children, despite years of evidence to the contrary. The majority of video games are rated for teens or general audience- with only a small percent rated for Mature audiences.
The FTC points out that the U.S. Supreme court has struck down government Censorship Boards as unconstitutional as recently as 1968, saying that while the state can regulate children's access to "objectionable" material, the "State could clearly not regulate as to adults."
The FTC also points out that the "X" rating had become a "kiss of death" to a movie's success, and the newly minted NC-17 rating "appears to have inherited the X stigma."
The FTC acknowledges the damage done to the distribution of NC-17 movies, but does not mention the damage done to the sales of computers games. In the game industry, as in movies, no serious games are made in the category called Adults Only (similar to the NC-17). Further, the Mature rated games (equivalent to the movie R) are under intense pressure. Through threats of punitive legislation against retailers, lawmakers have had a negative impact on the distribution of video games. Implicit threats are achieving what overt censorship cannot- large chain retailers have been chilled from offering for sale Mature rated games.
Just before the FTC report was released, Sears and Wards announced that they would no longer carry M rated titles. Parents who shop there no longer have the choice to buy M rated games for themselves, or make a decision about letting their teenagers play them. Sears and Wards made the decision after considerable political pressure, and now the choices of adults have been curtailed. The government's call for a "voluntary" rating system appears to have caused de facto censorship. The State may indeed have found a way to "regulate as to adults."
Of the FTC's three basic conclusions, I can go along with two:
Increase parental understanding of the ratings and labels
It is reasonable that the industry take on even more responsibility for educating adults about a game's contents so they can decide if it's appropriate for their child.
Increase compliance at the retail level
This makes sense. If we are going to have a "voluntary" rating system, our publishers need to ask retail stores to comply. To honor our own rating system, we need to agree to lose potential sales.
However, one conclusion is wrong-headed:
Expand codes that prohibit target marketing to children and impose sanctions for violations
Eliminating ads for M games in venues mostly watched by small children sounds eminently reasonable. This is similar to Hollywood's recent decision to show trailers for movies "one rating away" from the movie people have paid to see. (No R trailers at G movies, but R trailers are OK at PG-13 movies.)
But pulling ads for M games from MTV, video game magazines, and TV shows like Xena encroaches on the rights of adults, and leaves almost no options for game publishers to reach an audience. A game that doesn't reach its audience dies, and games like it are not made again. Who will dare to call that censorship?
To my mind, this third conclusion violates the Supreme Court's First Amendment test of not "regulating as to adults." It's wrong to try to dumb down our whole society to a level where kids would not be aware of the existence of PG-13 and R movies, CDs, or video games. (Plus it won't work. Children are going to find out about PG-13 movies even if they never see a trailer for one, and teenagers are going to learn about the existence of M rated games, even if they never see an ad for one.)
For responsible parents, the process of raising children includes making determinations on when their children are ready for the thousands of tiny milestones that comprise growing up -milestones that imitate adult behavior. When to let them date, when to let them stay out late, and when to let them watch the R rated movies and play the M rated games that the parents enjoy.
It's important that we respect the rights of adults to make clear choices for their children's entertainment. But it's just as important that we respect the rights of adults to make clear choices for their OWN entertainment. A government that covertly or overtly seeks to restrict these choices is no protector of the people, the law, the Constitution, or children.
Upcoming Fun From Washington:
The Tobacco Connection
Many lawmakers and concerned citizens groups have suggested suing and regulating entertainment industries like they did the tobacco companies. But there's one critical difference. Equating electronic games with tobacco products is dead wrong.
Electronic games have clear constitutional protection under the First Amendment. Tobacco does not. Tobacco has absolutely been proven to kill large numbers of its users. No video game has ever been proven to have killed anyone.
Who's Next? The FCC
The day after the FTC study, the Federal Communications Commission jumped into the fray, announcing a study on "sexually explicit and violent" TV. In hearings scheduled for October, the FCC promised to look into ads for programs that are inappropriate for children. Under a new law just passed by the Senate Commerce Committee, the FCC would also get broad new powers to prevent any violent programming from airing during daylight hours (before 10 PM), enforced by the FCC. The Supreme Court has struck down a similar bill for cable TV. (Committee Chairman John McCain voted present rather than go on record as either supporting or rejecting the bill.)
For further reading:
- FTC Report
- The Senate v. the Gaming Industry by Bruce Rolston
- Gore takes aim at entertainment industry for excessive violence CNN
- Lawmakers, health professionals blast entertainment industry for marketing adult material to children by Ian Christopher McCaleb/CNN
Daniel Greenberg is a Washington, DC computer game designer and scriptwriter. He also covers technology for the Washington Post and writes a syndicated computer column for the Gannett Newspaper chain. For further info please visit www.danielgreenberg.com.
Daniel can be reached at: email@example.com
The opinions expressed in this article do not necessarily represent the IGDA.