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By David L. Hudson Jr.
First Amendment Center research attorney

The issue of violent video games continues to lead to heated First Amendment court battles across the country. In June 2006 alone, lawsuits were filed challenging the constitutionality of laws regulating violent video games in Minnesota, Louisiana and Oklahoma.

On May 20, 2006, the Minnesota Legislature passed a law barring persons under the age of 17 from purchasing or renting video games that are rated AO (Adults Only) or M (Mature) by the private self-regulatory body called the Entertainment Software Rating Board. If such minors violate the law, they are fined $25. The law also requires retailers to post signs in 30-point font that read: “A person under the age of 17 is prohibited from renting or purchasing a video game rated AO or M. Violators may be subject to a $25 penalty.” Governor Tim Pawlenty signed the measure into law on May 31, 2006.

The Entertainment Software Association and Entertainment Merchants Association filed a lawsuit in federal court on June 6. In their lawsuit, the groups allege that the Minnesota law, which is scheduled to go into effect in August, violates First Amendment free-expression rights.

“The Act functions as an unconstitutional prior restraint, impermissibly delegates the authority to separate lawful from unlawful speech to a private entity, and fails to provide clear and fixed standards as to which games are covered by the Act,” the lawsuit alleges.

Oklahoma recently passed a similar law. The Oklahoma measure prohibits the sale of violent video games to minors even when accompanied by a parent.

“The violence in video games has grown to epic proportions,” said Oklahoma Governor Brad Henry in a June press release when he signed the measure into law. “Some video games glorify violence to a degree seldom seen in even the bloodiest movies. While parents have the ultimate responsibility for what their children do and see, this legislation is another tool to ensure that our young people are not saturated in violence. This gives parents the power to more closely regulate which games their children play.”

The ESA filed a lawsuit against this law on June 23. “Parents, not local police offices, should decide what games are suitable for their children,” said Doug Lowenstein, president of ESA in a news release. “We stand ready to work with parents to provide them with information about the Entertainment Software Ratings system, which has been called the most comprehensive rating system for any entertainment medium in the country, in order to help parents make informed choices about the games their children play.”

The ESA filed another lawsuit in June, challenging the constitutionality of a Louisiana law that imposes stiff penalties on retailers who sell violent video games to minors. Retailers could face fines of up to $2,000 and a year in prison for violation of the law.

“We are confident this bill will be found unconstitutional, as have similar statutes in other states,” said Lowenstein in a news release. “As recently as March 31 of this year, The Honorable George Caram Steeh, U.S. District Court, Eastern District of Michigan, stated that video games were ‘expressive free speech, inseparable from their interactive functional elements, and are therefore protected by the First Amendment.’”

The issue of violent video games has begun to resemble a consistent pattern — legislators pass laws regulating such games, and courts invalidate the laws.

“We do sincerely appreciate and respect the concerns legislators have,” said Gail Markels, senior vice president and general counsel for the ESA. “However, six courts in five years have struck down laws similar to those pending in Minnesota, Oklahoma and Louisiana, ultimately ruling that they were unconstitutional and rejecting the unpersuasive claims made by states that violent video games cause aggression.”

In the last year, courts in Michigan, California and Illinois have refused to allow the government to enforce such laws.

In March 2006, a federal district judge in Michigan ruled that state’s law unconstitutional in ESA v. Granholm. Judge George Caram Steeh wrote that the video-game law was a content-based restriction on speech that must survive the highest form of judicial review, known as strict scrutiny. Strict scrutiny requires the government to show that its law furthers a compelling, or very strong, governmental interest (such as protecting minors) in the least speech-restrictive way possible. Steeh reasoned that the government failed to satisfy this demanding standard in part because there were other less speech-restrictive alternatives available to the government. These included encouraging parental understanding of the rating system developed by the ESRB and “undertaking an advertising campaign to inform parents of the rating system.”

Similar fates befell legislation in Illinois and California before federal courts. In ESA v. Blagojevich, a federal district court judge ruled in December 2005 that the Illinois law violated the First Amendment and was unconstitutionally vague. (See “Court strikes down Ill. video-game law.”)

“In this country, the State lacks the authority to ban protected speech on the ground that it affects the listener’s or observer’s thoughts and attitudes,” the judge wrote. “If controlling access to allegedly ‘dangerous’ speech is important in promoting the positive psychological development of children, in our society that role is properly accorded to parents and families, not the State.”

A federal district court judge in California reached a similar result in Video Software Dealers Association v. Schwarzenegger in December 2005. The judge determined that the law’s definition of “violent video game” was too vague and granted the plaintiffs a preliminary injunction preventing enforcement of the law pending further legal proceedings. (See “Federal judge puts brakes on Calif. video-game restrictions.”)

These recent decisions comport with numerous other rulings, including American Amusement Machine Association v. Kendrick (7th Cir. 2001), Interactive Digital Software Association v. St. Louis County (8th Cir. 2003) and Video Software Dealers v. Maleng (W.D. Wash. 2004). In all three of these federal decisions, courts invalidated similar measures.

Despite the repeated defeats in federal court, legislators keep considering and passing new laws regulating violent video games. “Part of it is a generational thing,” says Sean Bursell, vice-president of public affairs for the Entertainment Merchants Association. “Most of these legislators have never played today’s generation of video games. All they know is what they see in sensational clips they are shown from a few of the most extreme games — games designed, marketed, and rated for persons age 17 and older, games that retailers have committed not to sell to anyone under age 17.

“Some legislators tell me they want to send the industry a ‘message’ that they don’t like violent games,” Bursell says. “Others say that, since a video-game restriction law hasn’t been tested in their federal circuit, the precedents don’t apply, and they want to see what their courts say. And there are those who claim to have figured out how to untie the Gordian knot of case law in this area, that every other state got it wrong, but they know how to do it right.”

Bursell adds that “even though we have the First Amendment on our side, the Entertainment Merchants Association and its member retailers do not believe that any child should be able to buy or rent a video game that their parents believe are inappropriate for them.”

“EMA, its members, and other video-game retailers support the video-game ratings of the Entertainment Software Rating Board and have made commitments not to sell or rent a video game rated ‘Mature’ to anyone under age 17 absent parental authorization,” he says. “It’s simply that, under our Constitution, the government cannot mandate this.”

Posted July 2006


Washington state bars sale of cop-killer video games to kids
State becomes first to enact such legislation; industry officials promise to challenge measure, calling it 'unnecessary and unconstitutional.' 05.21.03

Ill. governor sets sights on violent video games
Retailers group blasts proposal to ban sale of violent, sexually explicit video games to minors, saying plan would force sellers to act as 'sensitivity police.' 12.16.04

Illinois set to pull plug on sales of violent video games to kids
House votes 106-6 for bill, sends measure to Gov. Rod Blagojevich, who proposed ban after hearing about game 'JFK Reloaded.' 05.31.05

Illinois video-game restriction signed into law
Beginning Jan. 1, law bars sale, rental to minors of games featuring extreme violence, sex; labeling also required. 07.26.05


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