Obama has few tools to fight violence in media, attorneys say

The Obama administration has few tools available to take action against violence in video games and entertainment content, attorneys say.

This week, Vice President Joe BidenJoe BidenBiden invokes Ted Kennedy in defending remarks about working with segregationists Biden invokes Ted Kennedy in defending remarks about working with segregationists Booker hits Biden's defense of remarks about segregationist senators: 'He's better than this' MORE and other administration officials held meetings with entertainment trade association chiefs and video game industry representatives, among other industry groups and stakeholders, to discuss curbing gun violence in the United States after the mass shooting at Sandy Hook Elementary School in December.

Following the meetings, Biden is poised to deliver policy recommendations on gun violence to President Obama on Tuesday.

The vice president said those recommendations would focus on making changes to firearms laws, but he has not given any indication that the recommendations would touch on regulating violence in video games, movies and TV shows.

That’s largely because regulating content in media raises huge constitutional concerns, according to attorneys.

“The government doesn’t have any power directly to address violent program content and the best thing they can do is jawbone, bringing relevant people into the White House and talking to them,” said Andrew Schwartzman, a communications attorney.

Since the Sandy Hook shooting, some lawmakers and the National Rifle Association have suggested that violent entertainment content and video games contribute to aggressive behavior in real life.

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On Friday Biden, Attorney General Eric HolderEric Himpton HolderThe most important pledge Democratic presidential candidates can make Congress and contempt: What you need to know Congress and contempt: What you need to know MORE and Health and Human Services Secretary Kathleen SebeliusKathleen SebeliusFederal investigators concluded Ryan Zinke's MAGA socks violated Hatch Act Federal investigators concluded Ryan Zinke's MAGA socks violated Hatch Act Kansas Senate race splits wide open without Pompeo MORE met with a range of representatives from the video game industry, including Electronic Arts CEO John Riccitiello and Entertainment Software Association CEO Mike Gallagher.

Top representatives from the cable, broadcasting and motion-picture industries met with Biden for just over two hours on Thursday.

Previously, the executive branch has tapped the Federal Trade Commission (FTC) to examine violent entertainment content.

Following the 1999 mass shooting at Columbine High School, President Clinton called on the FTC to examine whether violent video games, movies and other content were being specifically marketed and promoted to young children and teenagers.

The commission issued a set of recommendations in the report that industry could adopt voluntarily. In response to that report, the Motion Picture Association of America voluntarily adopted initiatives that helped ensure they did not target children in its advertising of R-rated violent films.

But the FTC's authority to regulate content is highly questionable, attorneys say.

Schwartzman said the FTC "has no authority to do anything" about violent entertainment content. Clinton’s request for the FTC to conduct the study was simply “an effort to get content producers to restrain their excesses,” he said.

In the wake of the Sandy Hook shootings, Schwartzman said the most action the president could take with regards to the FTC is to direct the commission to conduct another study.

“Other than researching the problem and issuing recommendations, I don't see what the president can do” when giving orders to the FTC, Schwartzman said.

Even that action has little teeth when it comes to cutting down on the violent images shown in video games, movies and TV shows. As one attorney who focuses on First Amendment issues put it: “After they do the study, what then?”

However, the commission has the power to crack down on deceptive marketing practices, such as a video game publisher who misrepresents the content in a game to secure a particular rating.

For example, the commission charged Take-Two Interactive in 2005 with hiding lurid scenes on its “Grand Theft Auto: San Andreas” game. The scenes conflicted with the rating the game had received.

The administration’s ability to regulate violence in entertainment content is also hamstrung by a ruling handed down from the Supreme Court last year.

The Supreme Court struck down a California law that restricted the sale or rental of violent video games to minors. The court found that “video games qualify for First Amendment protection” because they communicate ideas just as books, plays and movies do.

Representatives from the video game industry attempted to remind Biden of that finding in the run-up to Friday’s meeting. One of them included the non-profit International Game Developers Association, which represents the developers who create video games.

“As creators, working in one of the most popular new forms of art and entertainment, we recognize that video game development not only allows us to express ourselves, but the games we make allow players the chance to express themselves as well,” Daniel Greenberg, an executive for the International Game Developers Association, wrote to Biden in a letter this week.

In a statement issued late Friday after its meeting with Biden, the Entertainment Software Association (ESA) said it looked forward to working with government officials who are focused on finding "meaningful solutions" to gun violence in the U.S. The video game lobby also noted that the Supreme Court decision affirmed that video games are not linked to violence in real life.

“We expressed in the meeting that the United States Supreme Court recently affirmed that the independent, scientific research conducted to date has found no causal connection between video games and real-life violence," ESA said in the statement. "We also recognized that gun violence is a serious problem in our country."

"We are saddened by the recent tragic events, and as an industry integral to the social and cultural fabric of America, we look forward to continuing our engagement with government officials and policymakers focused on meaningful solutions,” the trade group said.