Massachusetts Senate Bill 636


Summary

Section 16 of Massachusetts Senate Bill 636 would require the video game industry, the software development industry and television programmers to post labels on their content declaring that it includes violent themes. It also requires parents to bar minors from accessing such content.

Status

The Senate issued a study order for the bill.

Analysis

The imposition on video game and software publishers and the television industry is likely unconstitutional as compelled speech. The state cannot require video game or software publishers or program creators to describe their speech in a particular manner, especially using description considered pejorative. Courts have recently struck down similar laws that mandated labels on violent material.

The requirement that parents bar minors from accessing material labeled as violent is also likely unconstitutional. It may be the parents’ prerogatives to determine what media is appropriate for their kids to watch, but the state cannot require parents to enforce the state’s view of what is acceptable for minors. Though minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court has ruled that minors are entitled to significant First Amendment rights. Only in relatively narrow and well-defined circumstances, as defined by the Miller/Ginsberg test for “harmful to minors,” can the government bar dissemination of protected material to them. Recent court decisions have firmly established that speech with violent themes or images is fully protected by the First Amendment and may not be banned for minors, either directly or by requiring that parents remove or block such material.

The constitutional infirmities of this bill would not be cured simply by using industry rating systems rather than a “violence” label. Voluntary ratings exist to help parents determine what is appropriate for their children, but a government body violates the First Amendment if it enforces these rating systems, whether directly or indirectly by requiring parents to follow them.

The rationale in this bill for restricting access to media with violent content is the presumption that such media causes actual violence. The academic research does not support this conclusion. Courts have concluded that research fails to establish a solid causal link between violent media and actual aggression. Crime statistics also demonstrate the lack of correlation between violent content and the commission of crimes. For more information on the research, see our report, Only a Game: Why Censoring New Media Won’t Stop Gun Violence.

History

  • On January 24, 2011, the bill was introduced [2] and referred to the Joint Committee on Judiciary.
  • On May 16, 2011, Media Coalition submitted a memo to the members of the committee [1], ahead of a scheduled hearing on the bill on May 18, 2011. The memo explained the constitutional issues with the bill.
  • The committee did not take action on the bill after the hearing.
  • The legislature adjourned its 2011 session. The bill is carried over to 2012.
  • On October 15, 2012, the committee issued a study order for the bill.

Last updated: Sep 4, 2015