Freedom of Speech

The right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction.

Video Game Industry Defeats Bans on Sales of Video Games

A number of state legislatures in the recent past have attempted to combat what is perceived as a problem with violence in video games. These states have enacted statutes that ban the sale of certain games, especially those that depict sexual or violent acts, to minors. The video game industry, acting through trade associations, have challenged these statutes by arguing that they violate the First Amendment the United States Constitution. In 2006 and 2007, the video game industry was successful in challenging several of these statutes in various federal courts.

Michigan Governor Jennifer Granholm signed a bill in September 2005 that regulated the distribution of sexually explicit and "ultra-violent" explicit video games to individuals under the age of 17. The statute defined an "ultra-violent explicit video game as one that "continually and repetitively depicts extreme and loathsome violence." The act in turn defines "extreme and loathsome violence" as "real or simulated graphic depictions of physical injuries or physical violence against parties who realistically appear to be human beings, including actions causing death, inflicting cruelty, dismemberment, decapitation, maiming, disfigurement, or other mutilation of body parts, murder, criminal sexual conduct, or torture."

The Michigan legislature stated several concerns about the nature of these video games as the reason for enacting the statute. The concerns were that children who play ultra-violent video games are more likely to exhibit aggressive and violent behavior, that there are causal connections between media violence and aggressive behavior in children, and that minors in that state were capable of purchasing ultra-violent games. The legislature's goals included: "(1) safeguarding both the physical and psychological well being of minors, (2) preventing violent, aggressive, and asocial behavior from manifesting itself in minors, and (3) directly and substantially alleviating the real-life harms perpetrated by minors who play ultra-violent explicit video games."

The Entertainment Software Association (ESA), along with the Video Software Dealers Association and the Michigan Retailers Association, brought suit to challenge the statute, arguing that it violated protections of free speech, equal protection, and due process. On November 9, 2005, the U.S. District Court for the Eastern District of Michigan issued a preliminary injunction that barred enforcement of the statute. Four months later, the court issued a permanent injunction, ruling that the statute could not pass muster under the First Amendment. Entertainment Software Ass'n v. Granholm, 426 F. Supp. 2d 646 (E.D. Mich. 2006). According to the court, the state could not prove that it had substantial evidence that linked ultra-violent video games with violent behavior in children. The state also could not prove that the statute materially advance the state's goal of reducing aggressive behavior in children. Moreover, the court determined that the statute was unconstitutionally vague.

The Minnesota legislature enacted a statute in 2006 that incorporated the video game industry's voluntary rating system as part of the statute. The video game industry has established the Entertainment Software Rating Board (ESRB), to which video games are submitted voluntarily for review. Ratings are made based on reviews by three trained individuals. A game that is reviewed receives one of six classifications, including EC (Early Childhood), E (Everyone), E + 10 (Everyone 10 and Older), T (Teen), M (Mature), and AO (Adults Only). Under the Minnesota statute, a person under the age of 17 could not rent or purchase a video game rated AO or M.

The ESA and the Entertainment Merchants Association (EMA) challenged the statute on First Amendment and due process grounds. The U.S. District Court for the District of Minnesota agreed with the plaintiffs. According to the court, the statute violated the First Amendment because it regulated the distribution of video games based on content, and the state could not meet the requisite standard for imposing such a regulation. The court also ruled that the state's incorporation of the ESRB standard violated due process. Accordingly, the court enjoined enforcement of the statute. Entertainment Software Ass'n v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006).

The state of Louisiana in 2006 passed a statute that prohibited and criminalized the sale, lease, or rental of video or computer games that "appeal to a minor's morbid interest in violence." The ESA and EMA challenged the statute on First Amendment grounds, and the U.S. District Court for the Middle District of Louisiana enjoined the enforcement of the statute. In its decision, the court noted that the evidence presented by the legislature in support of its bill was "sparse and could hardly be called in any sense reliable." The judge also noted that studies cited by the state, which included those attempting to link violence in video games with aggressive behavior in children, had "been considered by numerous courts and in each case the connection was found to be tenuous and speculative." The district court granted a preliminary injunction on August 24, 2006, Entertainment Software Ass'n v. Foti, 451 F. Supp. 823 (M.D. La. 2006), and then issued a permanent injunction in November.

The Oklahoma legislature enacted a bill in 2006 that prohibited the sale of an interactive video game or software that displayed "inappropriate violence." The ESA and EMA challenged the statute in the U.S. District Court for the Western District of Oklahoma, and the court issued a preliminary injunction on October 11, 2006. Entertainment Merchants Ass'n v. Henry, No. CIV-06-675-C, 2006 WL 2927884 (W.D. Okla. Oct. 11, 2006).

In 2005, the Illinois legislature enacted two statutes related to video games, including the Violent Video Game Law (VVGL) and the Sexually Explicit Video Game Law (SEVGL). The SEVGL defined "sexually explicit" video games as "those that the average person, applying contemporary community standards, would find, with respect to minors, is designed to appeal or pander to the prurient interest and depict or represent in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post-pubescent female breast." Under the SEVGL, retailers were required to place labels on video games indicating that the games were sexually explicit, and the statute prohibited the sale or rental of these games to minors.

The ESA, the Video Software Dealers Association, and the Illinois Retail Merchants Association brought suit in the U.S. District Court for the Northern District of Illinois. In December 2005, the court struck down the law as a violation of free speech. Entertainment Software Ass'n v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005). The court also determined that a labeling requirement in the statute violated free speech as a form of compelled speech. Eight months later, the court ruled that the State of Illinois had to pay $510,528.64 in attorney's fees resulting from the litigation.

The State of Illinois appealed the decision to the Seventh Circuit Court of Appeals. In November 2006, the court affirmed the trial court's decision, finding that the SEVGL was not narrowly tailored to achieve a compelling state interest in protecting children from indecent sexual material, and also that the labeling requirements constituted compelled speech. Entertainment Software Ass'n v. Blagojevich, 469 F.3d 641 (7th Cir. 2006).