Video-Game Laws In Three States Are Ruled Unconstitutional

The trend in judicial resistance to statutes that regulate video-game content recently became clearer when federal district courts in Michigan, Illinois and California enjoined state statutes that deemed certain video-game content harmful to minors.

First, the U.S. District Court for the Eastern District of Michigan, Southern Division, preliminarily enjoined Part II of Michigan 2005 Public Act 108, which made it a civilly fineable offense of from $5,000 to $40,000, based on the number of violations, to “knowingly disseminate to a minor an ultra-violent explicit video game that is harmful to minors.” The Act also included criminal fines and jail time for store managers who allowed minors to “play or view the playing” of such games.

Acknowledging that video games are protected First Amendment expression, the Michigan federal district court applied strict scrutiny in finding that a “cursory review of the research relied upon by the state shows that it is unlikely that the State can demonstrate a compelling interest in preventing a perceived 'harm.'”

The district court also found that the Michigan statute wasn't tailored narrowly enough, noting: “There is a serious problem in determining which games are prohibited to be sold or displayed to minors under the Act. Without wholesale, indiscriminate refusals to sell video games to minors by store operators it appears impossible to protect sellers from prosecution. Store clerks cannot rely on the industry's voluntary rating system, other than potentially to invoke one of the affirmative defenses provided in the Act. Nor is it reasonable to expect store clerks to play each level of each game to determine if it falls within the Act's definition of 'ultra-violent explicit' content. Indeed, very few experienced video players can successfully reach the highest levels of many games in order to view their content. Entertainment Software Association v. Granholm, 05-CV-73634.

In the second case, the U.S. District Court for the Northern District of Illinois, Eastern Division, granted a permanent injunction against the state's Violent Video Games Law (VVGL) and Sexually Explicit Video Games Law (SEVGL), both enacted under Illinois Public Act 94-0315. Examining the evidence of the impact of violent video games on users, the Illinois district court initially noted: “Though the Court believes that many of the measures of aggression used in violent video game research are likely valid, we agree … that neither [the defense expert's] testimony nor his research establish a solid causal link between violent video game exposure and aggressive thinking and behavior. … [R]esearchers in this field have not eliminated the most obvious alternative explanation: aggressive individuals may themselves be attracted to violent video games. … Even if one were to accept the proposition that playing violent video games increases aggressive thoughts or behavior, there is no evidence that this effect is at all significant.”

Focusing then on whether the state had demonstrated a compelling interest, the Illinois federal district court concluded about the VVGL: “Defendants have come nowhere near making the necessary showing in this case. First, they have offered no evidence that the violent content in video games is 'directed to inciting or producing imminent lawless action.' … Rather, the only evidence in the record is that video games are designed for entertainment. And second, the evidence they offered regarding the purported effects on minors of playing violent video games does not even approach [the U.S. Supreme Court's requirement in Brandenburg v. Ohio,] that violent video games are 'likely to' produce 'imminent violence.'” The district court also agreed with the plaintiffs that “the Act's definition of 'violent video games' is vague because it is unclear what falls into the category of 'human' and what conduct constitutes 'serious physical harm.'”

The Illinois federal court found the SEVGL violated the First Amendment by emphasizing, “There is no question that … the SEVGL, which includes the first two prongs of the Supreme Court's obscenity test but omits the third prong [that the material be considered as a whole], goes beyond regulating material that is obscene for minors. See, Miller v. California, 413 U.S. 15, 24, 93 S. Ct. 2607 (1973).” The Illinois federal district court went on to strike down the VVGL and SEVGL labeling provisions, noting: “First, the requirement that the all violent and sexually-explicit video games bear an '18' sticker discloses no factual information: it tells parents and children nothing about the actual content of the games … Unlike labeling requirements that have been upheld under the commercial speech test, the question whether a game is violent or sexually explicit is a subjective evaluation left to the discretion of the retailer.” Entertainment Software Association v. Blagojevich, 05 C 4265.

In the third case, The U.S. District Court for the Northern District of California preliminarily enjoined that state's statute regulating video games. The statute, which was to take effect Jan. 1, would have regulated minors' access to video games. The California court also questioned the causal connection between video games and their effects on minors. Video Software Dealers Association v. Schwarzenegger, 05-4188.

' Stan Soocher

The trend in judicial resistance to statutes that regulate video-game content recently became clearer when federal district courts in Michigan, Illinois and California enjoined state statutes that deemed certain video-game content harmful to minors.

First, the U.S. District Court for the Eastern District of Michigan, Southern Division, preliminarily enjoined Part II of Michigan 2005 Public Act 108, which made it a civilly fineable offense of from $5,000 to $40,000, based on the number of violations, to “knowingly disseminate to a minor an ultra-violent explicit video game that is harmful to minors.” The Act also included criminal fines and jail time for store managers who allowed minors to “play or view the playing” of such games.

Acknowledging that video games are protected First Amendment expression, the Michigan federal district court applied strict scrutiny in finding that a “cursory review of the research relied upon by the state shows that it is unlikely that the State can demonstrate a compelling interest in preventing a perceived 'harm.'”

The district court also found that the Michigan statute wasn't tailored narrowly enough, noting: “There is a serious problem in determining which games are prohibited to be sold or displayed to minors under the Act. Without wholesale, indiscriminate refusals to sell video games to minors by store operators it appears impossible to protect sellers from prosecution. Store clerks cannot rely on the industry's voluntary rating system, other than potentially to invoke one of the affirmative defenses provided in the Act. Nor is it reasonable to expect store clerks to play each level of each game to determine if it falls within the Act's definition of 'ultra-violent explicit' content. Indeed, very few experienced video players can successfully reach the highest levels of many games in order to view their content. Entertainment Software Association v. Granholm, 05-CV-73634.

In the second case, the U.S. District Court for the Northern District of Illinois, Eastern Division, granted a permanent injunction against the state's Violent Video Games Law (VVGL) and Sexually Explicit Video Games Law (SEVGL), both enacted under Illinois Public Act 94-0315. Examining the evidence of the impact of violent video games on users, the Illinois district court initially noted: “Though the Court believes that many of the measures of aggression used in violent video game research are likely valid, we agree … that neither [the defense expert's] testimony nor his research establish a solid causal link between violent video game exposure and aggressive thinking and behavior. … [R]esearchers in this field have not eliminated the most obvious alternative explanation: aggressive individuals may themselves be attracted to violent video games. … Even if one were to accept the proposition that playing violent video games increases aggressive thoughts or behavior, there is no evidence that this effect is at all significant.”

Focusing then on whether the state had demonstrated a compelling interest, the Illinois federal district court concluded about the VVGL: “Defendants have come nowhere near making the necessary showing in this case. First, they have offered no evidence that the violent content in video games is 'directed to inciting or producing imminent lawless action.' … Rather, the only evidence in the record is that video games are designed for entertainment. And second, the evidence they offered regarding the purported effects on minors of playing violent video games does not even approach [the U.S. Supreme Court's requirement in Brandenburg v. Ohio,] that violent video games are 'likely to' produce 'imminent violence.'” The district court also agreed with the plaintiffs that “the Act's definition of 'violent video games' is vague because it is unclear what falls into the category of 'human' and what conduct constitutes 'serious physical harm.'”

The Illinois federal court found the SEVGL violated the First Amendment by emphasizing, “There is no question that … the SEVGL, which includes the first two prongs of the Supreme Court's obscenity test but omits the third prong [that the material be considered as a whole], goes beyond regulating material that is obscene for minors. See , Miller v. California , 413 U.S. 15, 24, 93 S. Ct. 2607 (1973).” The Illinois federal district court went on to strike down the VVGL and SEVGL labeling provisions, noting: “First, the requirement that the all violent and sexually-explicit video games bear an '18' sticker discloses no factual information: it tells parents and children nothing about the actual content of the games … Unlike labeling requirements that have been upheld under the commercial speech test, the question whether a game is violent or sexually explicit is a subjective evaluation left to the discretion of the retailer.” Entertainment Software Association v. Blagojevich , 05 C 4265.

In the third case, The U.S. District Court for the Northern District of California preliminarily enjoined that state's statute regulating video games. The statute, which was to take effect Jan. 1, would have regulated minors' access to video games. The California court also questioned the causal connection between video games and their effects on minors. Video Software Dealers Association v. Schwarzenegger, 05-4188.

' Stan Soocher