Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
Those are the exact words the irresponsible hippies who founded this country chose when they wrote the First Amendment. Those words are important; they were very carefully and very specifically chosen, and they reflect, as Judge Napolitano has forcefully explained, a very specific understanding of what it means to speak freely, and what the government doesn’t get to do about it:
The freedom of speech, as the framers envisioned it, is a preëxisting right; it came before the United States government, it was never abandoned to the United States government, and the United States government is obligated to respect it. The people are fundamentally and inherently free to speak as they please, completely irrespective of whether or not their overlords like it. This freedom is also understood to be a freedom not merely to speak as you please, but to put those words into writing — hence freedom of the press.
Unscrupulous sorts have long argued that the First Amendment applies only to speech and to use of a literal printing press — all this newfangled communication technology we have is not mentioned, and therefore not covered. We can get into the weeds about the intent of the framers (who obviously could not have enumerated communication methods that hadn’t been invented yet), but it’s not strictly necessary to do so, thanks to the Ninth and Tenth Amendments, which read as follows:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The Ninth Amendment is particularly important here; it states quite plainly that the founders didn’t need to enumerate all the possible means of communication, since the First Amendment is not granting any rights; its purpose is merely to enumerate rights the people already have and still retain. Indeed, some of the founders were against the idea of a Bill of Rights, specifically because they were concerned that enumerating rights would indeed lead people to conclude that this is all the rights the people retain; the Ninth Amendment was adopted specifically to assuage their concerns. As for the Tenth Amendment, that was to make it quite clear that the government is not one of unlimited power, but one with only a few specific, enumerated powers. In other words: the people retain any rights not specifically denied them in the Constitution, and the government possesses no powers not explicitly granted it in the Constitution. Clearly, the Constitution does not grant the government the power to regulate the content of video games, nor does it deny to game developers the right to say, depict, and design exactly what they please.
The ESRB is a nominally voluntary ratings organization, but it’s clearly the velvet glove; much like the MPAA ratings system, the industry adopted this voluntary system because the alternative was a compulsory system forced on it by the government. This is "voluntary" in precisely the same way that giving your wallet to a mugger — or to the IRS, for that matter — is "voluntary." Even so, the government wants regulatory authority anyhow; many of the worst of the tyrants of the Potomac believe they have the responsibility and the authority to ruin people for making or distributing video games they personally find offensive. Invariably, we hear people claiming that it’s all about banning "violent" video games, because those are turning children into murderers. Is that really the case, or do you suppose these creeps are pushing another, rather different agenda?
NIS America is in the process of localizing the Japanese game Criminal Girls 2: Party Favors (link is mildly NSFW) for the Playstation Vita, and the internet is all aflutter with the news that the North American release will be censored. For those of you unfamiliar with the game, it’s a fantasy game with strong sexual content, in which the player helps seven girls who were condemned to Hell through a "Reformation Program" so they can be redeemed for their sins. This "Program" evidently involves quite a lot of sexual bondage, and this became an issue for the ESRB. I know what you’re thinking: the ESRB was down on it because of graphic sexual content. You’d be a bit off-track, though — apparently one of the ESRB’s primary complaints was about "power distance."
Now, you’re probably thinking that "power distance" is not a thing, and you’d be pretty much correct. In the world of sane people, it is not. In the mad world of cultural Marxists, however, apparently it refers to the fact that, since the female characters are tied up, that presents the male character as having too much power over them. Again: actual graphic sexual content is not the problem; the problem is that the male cartoon drawing is depicted as being in a position of power over the female cartoon drawings, totally irrespective of the fact that these are all cartoon drawings and nobody is actually getting hurt.
There’s a bit of a double-standard at play here as well. The ESRB apparently saw no trouble with the "power distance" between Geralt and any of the various sorceresses he can take to bed in quite explicit fashion in the Witcher games — any one of them could snuff him out of existence in the blink of an eye if he displeases them, and the ESRB didn’t consider that too much "distance." Then there’s Mass Effect 2, which contains a potential sex scene in which the lady actually literally does kill Commander Shepard right at the peak of the act — less offensively distant than a few silk ropes, apparently. This is clearly the same old dull identity politics: showing women in light bondage is offensive power imbalance, but showing men being actually murdered is completely fine.
What does any of this have to do with turning children into violent killers, anyhow? Isn’t that sort of boneheaded "public safety" argument the whole justification for this censorship anyhow? This week’s Call of Duty game sailed on through the rating process just fine, with all of its intense graphic scenes of murder completely unharmed. Isn’t that the stuff the censors allege they’re worried about? Or has the new science of videogamemindcontrolology proven that scenes of light bondage are more capable of turning children into crazed lunatic gunmen now? Let’s not forget that more than one Call of Duty game contains a scene in which the "good guys" semi-interactively torture people to get information out of them, which is a pretty fine example of "power distance" all by itself — but, then, the victims were all male, so nobody cares.
Seriously, a bondage fantasy like Criminal Girls 2 doesn’t have to be to your taste — it isn’t to mine — but it’s obviously, manifestly not going to create any threat to "public safety." Even Call of Duty, heartbreakingly awful though it is, is causing damage only to the level of quality people expect from video games, and not to anybody’s actual physical self. Add to this the fact that absolutely nobody believes for even one minute that ESRB ratings, with or without a government mandate, actually prevent "our children" from playing video games the Hillary Clintons of the world don’t approve of; children have been watching R-rated movies, smoking, drinking, and looking at girlie magazines for many, many years, completely irrespective of the fact that the government has technically banned them from doing all of those things. None of this is the point, of course.
The busybodies in Washington aren’t trying to "protect" anybody from anything. That’s just the cover story. The real goal here is to get control over what people are allowed to say and depict in video games, so they can squeeze out unpopular and dissenting thoughts. Now there’s a "power distance" that should be eliminated once and for all.