Video games have long been a frequent enemy of America’s elected officials, and the latest attack on the industry comes from Arkansas Senator Josh Hawley. While Hawley himself is a Republican, games have long been used as a boogeyman by both parties. In this case, senators have received a myriad of complaints from concerned parents. Frequently, parents are finding that leaving their kid playing mobile games for an hour can quickly rack up thousands in fees.
Of course, when we are talking about such vast sums of money, parents are right to be concerned. However, the outright ban of “both loot boxes and pay-to-win” is not the right step to combat the problem of kids having access to these products.
Gaming once again singled out
First off, it is important to recognize that video games are being singled out once again. Kids are exposed to chance-based games in many aspects of their lives. Did they buy Pokémon cards? The contents are up to chance. Did a child buy a Happy Meal hoping for a certain toy? Surely, that’s a sort of gambling as well. What about Faithbox? It’s a subscription service that sends you a new box of faith-based goodies every month. Is that gambling as well?
No, of course not. It is only video games that are targeted in such a manner. It is easy to peg all our problems on video games, and Senator Hawley has no problem jumping on the bandwagon. However, I’d even argue that this legislation broaches constitutional issues as well. Video games, after all, are a form of free speech protected under the First Amendment. The Supreme Court stated this explicitly in an important 2011 court case, Brown vs. Entertainment Merchants Association. By banning loot boxes, the bill once again singles out just a single artistic medium. Other products that have chance-related elements go untouched, yet video games are treated differently than these other forms of media.
Who is usually responsible?
It is important to also recognize who is responsible when children are exposed to content they are supposed to be protected from. Take cigarettes, for example. It is clearly illegal for someone to provide a child with a cigarette. However, if someone gives one to a child, we do not hold cigarette manufacturers accountable. After all, we recognize that adults can smoke tobacco. Under our laws, that is allowed.
Instead, we punish whoever provided the children access to tobacco. In this case, it would either be a store that illegally sold cigarettes to minors or perhaps a parent that illegally provided the product. We don’t outright ban tobacco because we recognize that protecting minors and keeping the product legal are not mutually exclusive.
Loot boxes and minors
Similarly, loot boxes can be regulated in a way that both protects minors and ensures adults can engage with video game content legally. Hawley would argue that his bill would already do that. After all, his bill allows adult games to be exempt from the ban. But, what does that even mean? According to Hawley himself, FIFA is a game that will be covered by the legislation. Yet, it is unclear whether this means the game will be completely banned from selling Loot Boxes or a target of the sale to minors. The definition of a “minor-oriented game” is far too arbitrary and generic to understand how individual games will be affected. A lot of FIFA’s player base is composed of adults. Is Hawley carving out an exception for the game because lots of its players are adults, or will loot boxes be banned from the game entirely?
The better solution would be just to bar companies from knowingly selling chance-based content to minors. While the bill already contains this element, it is the only one needed. The ban itself goes too far. This could be done by requiring adults to verify purchases made through these features. Thus, if a child is exposed to what Hawley considers to be gambling, it would no longer be the fault of game publishers, but instead the fault of a parent. In this case, the benefits of an outright ban do not outweigh the consequences for the video game industry. Given that there are far less intrusive ways to protect minors, Hawley’s bill is not only a serious threat to the game industry’s First Amendment protections but also a reactionary and haphazard way to address the problem.