REGULATION OF VIOLENT
VIDEO GAMES:
WILL FREE SPEECH GET
PWNED?
By: Lawrence G. Walters, Esq.
Walters Law Group
www.FirstAmendment.com
ANOTHER FLAVOR OF
CENSORSHIP
 “Censorship
reflects
society's lack of
confidence in
itself. It is a
hallmark of an
authoritarian
regime.”
~Justice Potter
Stewart
OVERVIEW OF VIDEO GAMES
IN THE COURT
The government has failed repeatedly in
demonstrating a compelling interest in
restricting access to video games.
 A causal relationship between playing video
games and aggressive, violent behavior has yet to
be established using scientific methods
admissible in court.
 Most courts have ruled that video games are
protected speech under the First Amendment.

THE CULTURE WAR



Other cultures, such as
Japanese and European,
more tolerant on issues of
nudity and violence in
video games.
Japanese videogames are
marketed to both adults
and children, and are not
stereotyped as “kids”
games.
Nintendo would often
censor Japanese versions
of games before being
published in the U.S.
»This nude statue in
Castlevania IV was "clothed"
in the US release.
Look Mom, No Blood!
VIDEO GAMES ARE FREE
SPEECH

The Courts have consistently
ruled that video games are
protected speech and restrictions
are invalid.
 California (February, 2009)
 Oklahoma (September,
2007)
 Louisiana (November,
2006)
 Minnesota (July, 2006)
 Michigan (April, 2006)
 Illinois (December, 2005)
 Washington (July, 2004)
 St Louis (June, 2003)
 Indianapolis (March, 2001)

State and local taxes
have gone to pay
attorney’s fees in
these cases,
amounting to over $2
million dollars.
- Entertainment Software
Association
The Beginning…
AMERICAN AMUSEMENT MACHINE ASSOCIATION V.
KENDRICK
244 F.3d 572 (7th CIR. 2001)





City passed an ordinance restricting minors from playing
violent video game machines in arcades.
A three judge panel for the U.S. Court of Appeals for the
Seventh Circuit unanimously declared that the
Ordinance was unconstitutional.
Judge Posner authored the opinion and found video
games entitled to First Amendment protection,
comparing their interactive nature to literature and
movies.
The Court was not persuaded by so-called scientific
studies purporting a link between video games and
violent behavior.
The Court ordered the Defendants to pay $318k to cover
attorney’s fees in the case.
IDSA V. ST. LOUIS COUNTY
200 F.Supp.2d 1126 (E.D. MO. 2002)
rev’d 329 F.3d 954 (8th CIR. 2003)





St. Louis County passed an Ordinance prohibiting the
access to violent video games by minors without
parental consent.
The District Court ruled that video games are not
protected speech under the First Amendment, and even
if they were, the Ordinance was narrowly tailored.
Judge Limbaugh compared video games to bingo and
ruled that video games lack creative expression, were
not sufficiently ‘informative’ and should not be
considered protected speech.
Furthermore, Judge Limbaugh held that the County
Ordinance was within its constitutional limits by
passing this law.
This is the lone opinion that concluded that video games
are not protected speech, and was reversed on appeal.
Making it right…
IDSA V. ST. LOUIS COUNTY,
329 F.3d 954 (8th CIR. 2003)
The Plaintiffs appealed the decision and the
Eighth Circuit reviewed the District Court
ruling, reversing Judge Limbaugh’s decision.
 The Court of Appeals ruled that the law is
unconstitutional and that video games are
protected speech under the First Amendment.
 The 8th Circuit rejected so-called scientific
studies purporting a link between video games
and violent behavior.
 The Defendants were ordered to pay attorney’s
fees in the amount of $180,000.

VIDEO SOFTWARE DEALERS ASSOCIATION V.
MALENG,
325 F.Supp.2d 1180 (W.D. WASH. JULY 2004)




Washington passed a law prohibiting the depiction of
violence towards law enforcement officers in video games.
Judge Lasnik of the Western District of Washington
granted the Plaintiff’s Motion for Summary Judgment,
permanently enjoining the law, ruling that video games are
protected speech.
The court notes, “Whether we believe the advent of violent
video games adds anything of value to society is irrelevant;
guided by the [F]irst [A]mendment, we are obliged to
recognize that ‘they are as much entitled to the protection of
free speech as the best of literature.'"
Court rejected the “invitation to expand the narrowlydefined obscenity exception to include graphic depictions of
violence.”
VSDA V. MALENG, Continued…





Law was both over-inclusive (covering heroic
struggles against corrupt regimes) and underinclusive (not addressing other media outlets with
similar content.)
Court cited to the value of depictions of violence
throughout art and literature.
Again, the soundness of studies suggesting a link
between violence and video games was questioned.
The Court also noted concerns with vagueness and
the ability to determine what defines a “law
enforcement officer.” Would this include a soldier or a
fire man? How about an undercover cop?
The State was ordered to pay $344,000 in attorney’s
fees.
ESA V. BLAGOJEVICH
(PART ONE) 404 F.Supp.2d 1051 (N.D. ILL. 2005)
In December 2005, the N.D. of Illinois issued a
ruling permanently enjoining the two separate
laws passed by the IL legislature: 1) the Violent
Video Game Law (VVGL), restricting violent
video games, and 2) the Sexually Explicit Video
Game Law (SEVGL), which would have made it a
Class A misdemeanor for anyone to sell, rent, or
permit the sale or rental of, any sexually explicit
video game to any minor.
 Furthermore, the SEVGL required extensive
signage explaining the ESRB rating system.
 Again, the ruling judge cited to tenuous findings
attempting to establish a link between violent
video games and actual aggressive behavior.

THE VIOLENT VIDEO GAME LAW
“VVGL”



Although the court generally agreed that the State
had a compelling interest to protect children, the
State failed to prove a causal link between violent
video games and aggressive behavior.
The VVGL was ruled unconstitutional for failing to
show that the State had a compelling interest and
for not being narrowly tailored to meet its purpose.
The court also ruled that the term “violent video
games” was unconstitutionally vague, since it
pertained to games which depicted death or serious
bodily harms to “humans.” Hard to tell who is
“human” or humanoid in video games.
SEX IN VIDEO GAMES?
God of War was one of
the first video game
franchises to include
female nudity in its
storyline.
 The game also
provides a detailed
history of Greek
Mythology.

THE SEXUALLY EXPLICIT VIDEO
GAME LAW (“SEVGL”)
The Court ruled that the SEVGL did not comport
with Miller, failing to meet the 3-prong test that
regulates obscene material. The statute omitted
the third prong addressing serious value of the
games, and omitted the ‘as a whole’ requirement.
See, God of War.
 The Court ruled that SEVGL is
unconstitutionally vague and was not narrowly
tailored in order to pass the strict scrutiny test.
 The State was ordered to pay attorney’s fees in
the amount of $510,000.

THE ESA V. BLAGOJEVICH SAGA
CONTINUES…PART TWO, AT THE 7TH
CIRCUIT
469 F.3d 641 (7th CIR. 2006)
Gov. Blagojevich appealed the lower court’s
ruling pertaining to SEVGL. (State did not
bother with the VVGL ruling).
 In November 2006, the 7th Circuit upheld the
District Court’s ruling, granting a permanent
injunction against the law. Furthermore, Judge
Williams stated that the statute was
“constitutionally overbroad,” as it failed to
consider all requirements of the Miller test.
 The State was court-ordered to pay $34,550 in
attorney’s fees.

ESA V. GRANHOLM
426 F.Supp.2d 646 (E.D. MICH. 2006)







The Michigan Legislature passed a law restricting the
sale/rental of “ultra-violent” and sexually explicit video games
to minors.
The Court issued a preliminary injunction, noting that the
Plaintiffs were likely to succeed on the merits of their case.
A permanent injunction was issued the following year, citing
to previous rulings in the 7th and 8th Circuits, which ruled
that video games are protected speech.
The Court ruled that the law does not pass the strict scrutiny
test as the State has failed to show a compelling interest or
that the law was narrowly tailored to meet its asserted goals.
The Court also ruled that the “harmful to minors” standard
which is used to regulate sexually-explicit speech cannot be
extended to include violence.
The Court ordered the State to pay $182,000 to reimburse
attorney’s fees.
An appeal or rewrite of the law has been promised.
ESA V. HATCH
443 F. Supp.2d 1065 (D. MINN. 2006)



The State of Minnesota passed a law in June 2006
restricting the sale or rental of video games rated M
or AO, fining minors who tried to purchase or rent
$25.
Judge Rosenbaum of the U.S. District Court for
Minnesota issued a permanent injunction against the
law, citing to previous rulings which recognized First
Amendment protection for video games.
Judge Rosenbaum questioned the Legislature’s
motives in passing such a law:

“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 to
the motives of those who launched Minnesota’s 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.”
HATCH, Continued…
THE DISTRICT COURT STRIKES
DOWN THE LAW


Ultimately, the District Court ruled that the law was
unconstitutional under the First and Fourteenth
Amendments. The statute failed to pass the strict
scrutiny test due to lack of a compelling interest in
protecting minors from violent video games.
“The Court is aware of no facet of First Amendment
jurisprudence, excepting only obscenity, which permits
the Court, let alone the State, to evaluate the worth of
protected speech. The Eighth Circuit has made it
clear that violent video games are not obscene and are
entitled to First Amendment protection. The First
Amendment, which has its counterpart in Minnesota’s
own Constitution, was certainly established to keep
the government from becoming the arbiter of what
constitutes ‘worthless’ or ‘disgusting’ speech. The
Court declines the State’s invitation to enter into an
evaluation of this kind.” Justice Kagan, take note!
ESA V. SWANSON, (HATCH, Continued)
THE EIGHT CIRCUIT RULING
519 F.3d 768 (8th CIR. 2008)





In March 2008, the 8th Circuit upheld the District Court’s
ruling that the law is unconstitutional, but started to show
some frustration with violent video games.
In upholding the decision, the 8th Circuit recognized that it
was legally required to consider videogames as protected
speech, given an earlier decision from the same court
in Interactive Digital Software Association v. St. Louis County.
But the court then took a jab at the prior decision
in Interactive Digital, wondering aloud whether that same
court would have characterized games like Manhunt as
protected speech. Decision also appeared to invite en banc
review by the state.
The court also determined that the State has a compelling
interest in protecting the psychological well being of its minor
citizens. The judges agreed that the State’s evidence provides
“substantial support for its contention that violent videogames
have a deleterious effect upon the psychological well being of
minors.”
The AG requested an en banc review of the Appellate decision,
but the motion was denied.
The State was ordered to pay $65,000 in attorney’s fees.
THE BATTLE CONTINUES
 TWO
7TH CIRCUIT DECISIONS…
 TWO 8TH CIRCUIT DECISIONS…
 IF YOU THINK THE BATTLE IS
OVER…
YOU
DON’T KNOW JACK…!
JACK THOMPSON!
 “They
are about to
pay a wicked price,
and I aim to make
sure they pay it.”
 -- Jack Thompson
JACK’S ‘ACCOMPLISHMENTS’



Recall that Thompson led the
crusade against 2 Live Crew's
lyrics from its 1989 album,
As Nasty As They Wanna Be.
Thompson declared the game
Doom to be a "murder
simulator" and blamed it for
the Columbine massacre.
Thompson filed a civil suit
against Grand Theft Auto's
developer Take Two
Interactive after a player of
the game un-relatedly killed 3
police officers.
He charged the developers of
“mentally molesting minors
for money.”
 He lost his pro hac vice
status, preventing him from
continuing as counsel of
record on the case.

AND THE LIST GOES ON…


Thompson has helped draft anti-video game
legislation in a number of states.
 Each and every law he promoted was struck down
by the courts on constitutional grounds.
 Many states were forced to pay attorneys fees to
the trade associations when they prevailed.
Thompson took another shot at Take Two Interactive
in the form of a lawsuit aimed at preventing the
release of the game Bully. He argued the game
violated Florida's public nuisance laws.
 That case resulted in another loss for Thompson
after an embarrassing court outburst in Miami.
…AND ON…

Posey v. Take Two/Sony was dismissed by Judge Valerie
Huling in Albuquerque, NM based on lack of jurisdiction
and failure to state a claim.
Thompson filed a wrongful death suit against T2/Sony
after 14 year-old Cody Posey killed his father, stepmother
and stepsister, supposedly incited and influenced to kill his
family after playing Grand Theft Auto.
 It was later revealed in Posey’s juvenile court hearing that
he was sexually and physically abused.



Thompson accused the Dept. of Defense of having an “unholy
alliance” with the video game industry. His Press Release alleges
DoD uses video games as recruitment tool. Cites false reports
that Virginia Tech shooter played ‘Counter Strike.’
Claims Military is teaching that war is glamorous and free of
consequences.
UNTIL…

In September 2008, Jack
Thompson's prestigious
career came to a "shocking"
conclusion when the Florida
Supreme Court accepted a
Florida judge's
recommendation of
permanent DISBARMENT.


”Based on the record before
it, the Court agrees that
respondent is not amenable
to rehabilitation. Further,
the Court approves the
referee’s recommendation
that permanent disbarment
is the appropriate sanction.”
Thompson unsuccessfully
challenged the ruling in
Federal Court.
HIT THE ROAD JACK!!
Jack
Thompson
ESA V. FOTI
451 F.Supp. 823 (M.D. LA. 2006)



Judge Brady issued a permanent injunction against a state
statute seeking to ban the sale of violent video games to
minors.
One of Jack Thompson’s masterpieces.
Court admonished the state for overlooking a series of
previous rulings that declared First Amendment protection
for video games.

“[t]his Court is dumbfounded that the Attorney General and the
state are in the position of having to pay taxpayer money as
attorney’s fees and costs in this lawsuit. The Act, which this
Court found to be unconstitutional, passed through committees
in both the State House and Senate, then through the full House
and Senate, and to be promptly signed by the Governor. There
are lawyers at each stage of this process…The Court wonders
why nobody objected to the enactment of this statute. In this
court’s view, the taxpayers deserve more from their elected
officials.”
BATTLE IN THE BAY Continued…
Judge Brady issued a ruling from the bench
granting a permanent injunction based on
previous rulings which affirmed First
Amendment protections for video games.
 He also encouraged the voluntary use of already
existent ESRB ratings and other parental
controls to address the issue.
 The State was ordered to pay $91,000 in
attorney’s fees.

EMA V. HENRY
2006 WL 2927884 (W.D. OKLA. 2006)




The Oklahoma Legislature passed a law banning the
sale to minors of computer or video games that
included “inappropriate violence.” (Talk about
viewpoint discrimination!)
The Western District of Oklahoma issued a
permanent injunction, ruling the video games are
protected speech and that violence can not be
regulated in the same manner as obscene content.
Judge Cauthron ruled that the law was not narrowly
tailored to advance the State’s interests.
The Court also ruled that the definition of
“inappropriate violence” was unconstitutionally vague
and violates the Fourteenth Amendment. Judge
Cauthron also noted that the vagueness would affect
retailers as they might know everything there is to
know about a game, but not know whether or not it is
an offense to sell the game to a minor.
VSDA V. SCHWARZENEGGER:
FROM THE BEGINNING
2007 WL 2261546 (N.D. CAL. AUG 6, 2007)
Rep. Leland Yee (D) introduced legislation
banning the sale of ultra-violent video games and
requiring signage explaining the regulations.
The bill was signed into law in October 2005.
 In December 2005, Judge Whyte of the N.D. of
California issued a preliminary injunction
blocking the law from taking effect.
 In August 2007, Judge Whyte issued a final
ruling that the law is unconstitutional and
violates the First Amendment.


He cited to previous rulings outside the Ninth Circuit
that have upheld First Amendment protections for
video games.
VSDA V. SCHWARZENEGGER,
Continued…
556 F.3d 950 (9th CIR. 2009)




In February 2009, the Ninth Circuit Court of Appeals
unanimously reaffirmed the lower court ruling that
the law is unconstitutional under the First
Amendment.
The law failed to pass muster under the strict
scrutiny test and the state failed to prove that it has a
compelling interest or that the law was narrowly
tailored to meet its ends.
The Ninth Circuit Judge reiterated the lower court’s
decision that the state could have considered less
restrictive means, such as the ESRB rating system,
than to restrict minors’ First Amendment rights.
Furthermore, the Court found that there is “no
substantial evidence that supports the Legislature’s
conclusion that violent video games cause
psychological or neurological harm to minors.”
THE SUPREME COURT GRANTS THE
GOVERNATOR’S REQUEST FOR
CERTIORARI
 The
State of California sought
certiorari review of the Ninth
Circuit’s panel decision.
 Shortly after deciding U.S. v. Stevens,
disapproving violence as a trigger for
stripping First Amendment protection,
the Supreme Court has agreed to review
the Ninth Circuit’s ruling, for a
potentially decisive ruling on the legal
fate of violent video games.
WHAT DOES THE FUTURE HOLD
FOR VIDEO GAMES?





Answer & Amicus
Briefs due September
18, 2010.
FALA will participate.
Will the High Court
hold that video games
are protected speech?
Can violence be a
trigger for regulating
speech to protect
minors?
What is the proper test
for the labeling
restriction?
WHAT ABOUT THE FEDS?


Sen. Barack Obama – “I would call upon the video game
industry to give parents better information about programs and
video games by improving the voluntary rating system we
currently have…And even if the industry does do some
responsible self-policing, there's still a role for the federal
government to play. We need to understand the impact of these
new media better. That's why I supported federal funding to
study the impact of video games on children's cognitive
development.” – Kotaku.com
Obama praised the new technical innovations
that have allowed parents better control over
what their children play, but stated the ratings
system needed to be made clearer. “If the
industry doesn’t, then my administration would,”
he said. Cinemablend.com
PREVIOUS FEDERAL BILLS




Children Protection from Video Game Violence & Sexual
Content Act (HR 2958) – Directs the FTC to review the
ESRB and to commission the GAO to study the impact of
video games on minors. (Senate companion bill: S.1902)
Truth in Video Game Rating Act (S.568) – Requires the
ESRB to review all content before assigning ratings.
Introduced by Sam Brownback (R-KS).
Video Game Decency Act of 2007 (HR 1531) – To prohibit
deceptive acts in the content rating of video games. Result of
the “Hot Coffee” mishap.
HR 231 was introduced in January 2009 by Rep. Joe Baca
(D-CA) and would require certain warning labels to be
placed on video games that are given ratings higher than
those rated T for teens.
Ending Quote

There is more than one way to burn a book.
And the world is full of people running
about with lit matches.

--Ray Bradbury
THE END.