VGVN Wins

Washington - Video Software Dealers Association, et al., v. Maleng, et al. Illinois - ESA, et al., v/ Blagojevich, et al.  California - VSDA, et al., v. Schwarzenegger, et al.There have been many efforts on the part of state and local legislative bodies to regulate access to games. However, 12 courts have reviewed this issue in the past six years and each time found laws restricting the sale of games unconstitutional. The courts have ruled that computer and video games are protected speech, and efforts by these legislative bodies to ban or limit access to or the sale of games they find objectionable will inevitably run afoul of the First Amendment of the United States Constitution.

To get a clear and easy-to-understand summary of these victories, read the sections below:

Louisiana 

On November 30, 2006 Federal District Court Judge James Brady struck down a law that attempted to ban the sale of some video games to minors. This marks the ninth court ruling in six years that has declared laws like these to be an unconstitutional affront to First Amendment rights, proving once again that video games are protected speech. Read more…

 

Minnesota – ESA, et al., v. Hatch

On July 31, 2006 The District Court of Minnesota ruled the “Minnesota Video Games Act” unconstitutional and permanently enjoined its enforcement. The act was signed into law by Governor Tim Pawlenty and set a fine of $25 to individuals under the age of 17 who purchased games rated “M” or “AO.” The verdict was clear in its support of the First Amendment over video game regulation. The judge even went as far as reminding Minnesota lawmakers that other states that had tried to limit access to video games and had all failed because they violated the First Amendment. Read more…

Michigan - ESA, et al., v. Granholm, et al.

On April 3, 2006, the Hon.George Caram Steeh, US District Court, Eastern District of Michigan, issued a permanent injunction halting the implementation of this Michigan bill which sought to ban violent video game sales to minors, ruling that the bill is unconstitutional. Read more…

 

California - VSDA, et al., v. Schwarzenegger, et al.

In a ruling issued in December, 2005, Judge Ronald Whyte, United States District Judge for the United States District Court for the Northern District of California, handed down a preliminary injunction halting the implementation of a California law that would restrict video game sales and require the unconstitutional and subjective labeling of video games. Read more…

 

Illinois - ESA, et al., v/ Blagojevich, et al.  

Judge Matthew Kennelly, A United States District Judge, Northern District of Illinois ruled that the State of Illinois must pay the video game industry over half a million dollars in attorney’s fees for its unconstitutional effort to enact a law banning the sale of violent video games. Read more…

 

Washington - Video Software Dealers Association, et al., v. Maleng, et al. 

In granting the ESA’s motion for summary judgment, Judge Lasnik of the Western District of Washington permanently enjoined a Washington state law that would prohibit the sale of video games that depict violence against law enforcement officers. In his ruling, Judge Lasnik rejected the state’s argument that video games should be regulated under obscenity law, and declined the state’s invitation to expand the narrowly defined obscenity exception to include portrayals of violence. Read more…

 

St. Louis - ISDA v. St. Louis County

In a unanimous decision of a three judge panel, the Honorable Morris S. Arnold, of the Eight Circuit Court of Appeals struck down the St. Louis County violent video game law and found that First Amendment protects a wide array of content, including video games Read more…

 

Indianapolis - American Amusement Machine Association, et al. v. Kendrick, et al. 

Writing in a unanimous decision of a three judge panel, the Honorable Richard A. Posner, of the Seventh Circuit declared the Indianapolis Arcade Ordinance unconstitutional, reaffirming that children have First Amendment rights. Read more…

 

 

 

Detailed Summaries of VGVN wins

 


Louisiana
Washington, Federal District Court
November 30, 2006

Federal District Court Judge James Brady struck down a law that attempted to ban the sale of some video games to minors. This marks the ninth court ruling in six years that has declared laws like these to be an unconstitutional affront to First Amendment rights, proving once again that video games are protected speech.

This ruling is particularly remarkable as the judge ruled directly from the bench, rather than handing down a written decision with legal explanation. This decisive judgment points to the weak case the state of Louisiana had built to defend a clearly unconstitutional law.

In his ruling the judge chided the state for having overlooked the many other cases where laws like Louisiana’s had been ruled unconstitutional. Judge Brady went on to say, “...less restrictive alternatives [which would achieve the state’s goals] exist, including encouraging awareness of the voluntary ESRB video game rating system (which provides guidance to parents and other consumers), and the availability of parent controls that allow each household to determine which games their children can play.”

Louisiana’s failed law, like the other state laws that have been similarly rejected, have cost taxpayers time and money. Many states have already been ordered to pay legal fees to the video game industry for the costs of protecting video games in court. The industry will now be filing suit against Louisiana to recover the legal fees accrued in going to court over this law.

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Minnesota
Minneapolis, District Court of Minnesota
ESA, et al., v. Hatch 
July, 2006

The District Court of Minnesota ruled on July 31, 2006 that the “Minnesota Video Games Act,” is unconstitutional. The act had been signed into law by Governor Tim Pawlenty and set a fine of $25 to individuals under the age of 17 who purchased games rated M or AO. The verdict was clear in its support of the first amendment over video game censorship. Wrote Chief District Judge Rosenbaum, “The [Minnesota Video Games] Act imposes a regime which attempts to regulate video games based on content. It does so by restricting minors from renting or buying video games with an M or AO rating. As these games enjoy First Amendment protection, any such restriction is presumptively invalid and subject to strict scrutiny.” This is now the seventh time that a court has ruled that computer and video games are protected speech since 2001.

The judge even went as far as reminding Minnesota lawmakers that other states that have tried to limit access to video games and had all failed because they violated the first amendment. He wrote, “Several other states have tried to regulate minors’ access to video games. Every effort has been stricken for violating the First Amendment….The Court will not speculate as the motives of those who launched Minnesota’ nearly doomed effort to “protect” our children. Who, after all, opposes protecting children. But, the legislators drafting this law cannot have been blind to its constitutional flaws.” 

The verdict also responded to Minnesota’s claim as to the supposed dangers of playing mature video games. While the state legislatures had pointed to one study linking video game playing with violent behavior, the court’s review of the report found it “completely insufficient” to prove such a link.

While Minnesota lawmakers have argued that censorship is for the public good, this decision serves as a good reminder that the real public good is free speech. The verdict is sharp on this point too saying, “The United States Constitution is the ultimate expression of the Nation’s public interest, and, when its First Amendment declares that Congress, the people’s representatives, may make no law abridging freedom of speech, the publics interest is clear.”

Read the Verdict (PDF).

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Michigan
Eastern District of Michigan, United States District Court
ESA, et al., v. Granholm, et al.
April, 2006

On April 3, 2006, the Hon.George Caram Steeh, US District Court, Eastern District of Michigan, issued a permanent injunction halting the implementation of this Michigan bill which sought to ban violent video game sales to minors, ruling that the bill is unconstitutional.

In his decision, the judge firmly dismissed the state’s claim that the interactive nature of video games makes them less entitled to First Amendment protection. “The interactive, or functional aspect, in video games can be said to enhance the expressive elements even more than other media by drawing the player closer to the characters and becoming more involved in the plot of the game than by simply watching a movie or television show,” Judge Steeh wrote. “It would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependent on each other in creating the virtual experience.”

Regarding the “science” presented by the state purporting to show a link betweenviolent games and violent behavior and thoughts, the court said, “Dr. [Craig] Anderson’s studies have not provided any evidence that the relationship between violent video games and aggressive behavior exists.” It added that the evidence introduced alleging that new brain mapping studies show a link between violent games and aggressive thought is equally unpersuasive. “The research not only fails to provide concrete evidence that there is a connection between violent media and aggressive behavior, it also fails to distinguish between video games and other forms of media,” the Judge wrote.

Addressing the state’s claims that video games are more harmful than TV because the player controls the action, the court said there is no evidence to support such a claim, adding that “it could just as easily be said that the interactive element in video games acts as an outlet for minors to vent their violent or aggressive behavior, thereby diminishing the chance they would actually perform such acts in reality….Not only does the Act not materially advance the state’s stated interest, but it appears to discriminateagainst a disfavored ‘newcomer’ in the world of entertainment media. Thus, ‘singling out’ the video game industry does not advance the state’s alleged goal,” the Judge concluded.

Update:
In December a District Court judge ordered the state to pay $182,349 to the video game industry to cover legal fees the industry incurred to challenge an unconstitutional law banning the sale or rental of violent video games to minors. This marks the third win for video games in just one week, and brings the total that states around the country owe or have paid to the video game industry for legal fees in support of similar efforts to regulate game sales to over $1.5 million.

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California
Northern District of California, United States District Court
VSDA, et al., v. Schwarzenegger, et al.
2005 WL
December, 2005

In a ruling issued in December, 2005, Judge Ronald Whyte, United States District Judge for the United States District Court for the Northern District of California, handed down a preliminary injunction halting the implementation of a California law that would restrict video game sales and require the unconstitutional and subjective labeling of video games.In a decision that drew upon the judicial rulings of cases where similar legislation had been deemed unconstitutional, Judge Whyte wrote that “games are protected by the First Amendment and that plaintiffs are likely to prevail in their argument that the Act violates the First Amendment.”

Further, regarding research purporting to show a link between violent video games and violent behavior, Judge Whyte cited recent decisions by other federal courts which found that the research does not establish a causal link between violent video games and violent behavior, does not assess the significance of any link, and does not video games to other forms of media violence to which minors are exposed. He found that, “This court anticipates that [the State] here may face similar problems proving the California legislature made ‘reasonable inferences based on substantial evidence.’”

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Illinois
Northern District of Illinois, United States District Court
ESA, et al., v. Blagojevich, et al.
2005 WL
December, 2005

Judge Matthew Kennelly, A United States District Judge, Northern District of Illinois ruled on Wednesday that the state of Illinois must pay the video game industry over half a million dollars in attorney’s fees for its unconstitutional effort to enact a law banning the sale of violent video games.

Said ESA President Douglas Lowenstein, “Judge Kennelly’s rulings send two irrefutable messages - not only are efforts to ban the sale of violent video games clearly unconstitutional, they are a waste of taxpayer dollars.” 

In an earlier decision declaring the law unconstitutional, United States District Judge Matthew S. Kennelly forcefully 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.”

Lowenstein said that he hopes this ruling sends a message to policymakers that, instead of squandering taxpayer money on frivolous lawsuits and clearly unconstitutional laws, they should focus their resources on working with the industry to help educate parents about the rating system already in place and in all next generation consoles to help parents make sound choices about the games their kids play

In a previous strongly worded 53 page decision, Judge Kennelly permanently enjoined the Illinois’ Violent Video Games Law and Sexually Explicit Video Games Law, finding it unconstitutional. Resoundingly dismissing the research in support of the statute presented by the State of Illinois, the judge ruled that the “[state has] failed to present substantial evidence showing that playing violent video games cause minors to have aggressive feelings or engage in aggressive behavior.”

In his decision, the judge found fault with the argument that legislation is the answer to protecting children from inappropriate media. He wrote that “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.”

Finally, Judge Kennelly determined that, “the state may have a compelling interest in assisting parents with regulating the amount of media violence consumed by their children, but it does not have a compelling interest in singling out video games in this regard. In fact, the underinclusiveness of this statute – given that violent images appear more accessible to unaccompanied minors in other media – indicates that regulating violent video games is not really intended to serve the proffered purpose.”

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Washington
Western District of Washington, United States District Court
Video Software Dealers Association, et al., v. Maleng, et al.
325 F. Supp.2d 1180
July 2004

In granting the plaintiff’s motion for summary judgment, Judge Lasnik of the Western District of Washington permanently enjoined a Washington state law that would prohibit the sale of video games that depict violence against law enforcement officers. In his ruling, Judge Lasnik rejected the state’s argument that video games should be regulated under obscenity law, and declined the state’s invitation to expand the narrowly defined obscenity exception to include portrayals of violence. Judge Lasnik wrote that “such depictions [of violence] have been used in literature, art, and the media to convey important messages throughout our history, and there is no indication that such expressions have ever been excluded from the protections of the First Amendment or subject to government regulation”.

Dismissing the claims of the state’s expert witnesses and the studies presented, Judge Lasnik determined that “...the Court finds that the current state of research cannot support the legislative determinations that underlie the Act because there has been no showing that exposure to video games that ‘trivialize violence against law enforcement officers’ is likely to lead to actual violence against such officers. Most of the studies on which defendants rely have nothing to do with video games, and none of them is designed to test the effects of such games on the player’s attitudes or behavior toward law enforcement officers. Where the studies do involve exposure to violent video games, the subjects are often asked to play games selected by the researcher and are then evaluated for behaviors that serve as proxies for actual aggression. Assuming, for the sake of argument, that the frustrations inherent in learning a new game or console system are not responsible for any measurable increase in hostility, neither causation nor an increase in real-life aggression is proven by these studies.”

Reinforcing that games are protected by the First Amendment, Judge Lasnik wrote:“The games at issue…[have] story lines, detailed artwork, original scores, and acomplex narrative which evolves as the player makes choices and gains experiences. All of the games provided to the Court for review are expressive and qualify as speech for purposes of the First Amendment. In fact, it is the nature and effect of the message being communicated by those video games which prompted the state to act in thissphere.”

Additionally, Judge Lasnik found that the state’s attempt to ban the sale of gamesdepicting violence against law enforcement officers was impossibly vague and, “failed to give a person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.” He wrote: “Would a game built around The Simpsons or Looney Tunes characters be ‘realistic’ enough to trigger the Act? Is the level of conflict represented in spoofs like the Dukes of Hazzard sufficiently ‘aggressive?’ Do the Roman centurions of Age of Empires, the enemy officers depicted in Splinter Cell, or the conquering forces of Freedom Fighters qualify as ‘public law enforcement officers’?”

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St. Louis, Missouri
United States Court of Appeals for the Eighth Circuit
IDSA v. St. Louis County
329 F.3d 954, 957
June 2003

In a unanimous decision of a three judge panel, the Honorable Morris S. Arnold, of the Eight Circuit Court of Appeals struck down the St. Louis violent video game law and found that First Amendment protects a wide array of content, including video games. The Eighth Circuit held that if “the first amendment is versatile enough to ‘shield [the] painting of Jackson Pollack, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll,’ ... we see no reason why the pictures, graphic design, concept art, sounds, music, stories and narrative present in video games are not entitled to similar protection.” The court elaborated on these First Amendment protections, stating that “[W]e do not mean to denigrate the government’s role in supporting parents, or the right of parents to control their children’s exposure to graphically violent materials. We merely hold that the government cannot silence protected speech by wrapping itself in the cloak of parental authority… To accept the County’s broadly-drawn interest as acompelling one would be to invite legislatures to undermine the first amendment rights of minors willy-nilly under the guise of promoting parental authority.”

Regarding the concern the games are harmful to minors because of their content, the Court found the county’s evidence, once again, studies by Craig Anderson, et al., to be unpersuasive. The opinion stated that the “conclusion that there is a strong likelihood that minors who play violent video games will suffer a deleterious effect on their psychological health is simply unsupported in the record…[T]his vague generality falls far short of a showing that video games are psychologically deleterious. The County’s remaining evidence included the conclusory comments of county council members; a small number of ambiguous, inconclusive, or irrelevant (conducted on adults, not minors) studies; and the testimony of a high school principal who admittedly had no information regarding any link between violent video games and psychological harm…Where first amendment rights are at stake, ‘the Government must present more than anecdote and supposition.’”

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Indianapolis, Indiana
United States Court of Appeals for the Seventh Circuit
American Amusement Machine Association, et al. v. Kendrick, et al.
244 F.3d 572
March 2001

Writing in a unanimous decision of a three judge panel, the Honorable Richard A.Posner, of the Seventh Circuit declared the Indianapolis Arcade Ordinanceunconstitutional, reaffirming that children have First Amendment rights. He wrote that “[T]o shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it. Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with thecharacters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own. Protests from readers caused Dickens to revise Great Expectations to give it a happy ending, and tourists visit sites in Dublin and its environs in which the fictitious events of Ulysses are imagined to have occurred. The cult of Sherlock Holmes is well known.”

In reference to scientific studies, such as research by Craig Anderson, et al., provided to the Court arguing that interactive games cause violent behavior, the Court wrote “[T]here is no indication that the games used in the studies are similar to those in the record of this case or to other games likely to be marketed in game arcades in Indianapolis. The studies do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere. And they do not suggest that it is the interactive character of the games, as opposed to the violence of the images in them, that is the cause of the aggressive feelings. The studies thus are not evidence that violent video games are any more harmful to the consumer or to the public safety than violent movies or other violent, but passive, entertainments. It is highly unlikely that they are more harmful, because ‘passive’ entertainment aspires to be interactive too and often succeeds.”

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