Illinois and Louisiana Video Game Laws Ruled Unconstitutional
By: Lawrence G. Walters
Weston, Garrou, DeWitt & Walters

            The video game industry celebrated a huge victory in November, 2006, as the courts struck down two video game laws on constitutional grounds.  The first came as a huge blow to democratic Governor of Illinois, Rod Blagojevich, and the second, a slap in the face to Jack Thompson, controversial attorney who drafted a Louisiana video game law and promised legislators it was written in a manner that would withstand any challenges.  However, in nine out of nine cases, the courts have upheld First Amendment protections to video games, and again and again have cited faulty evidence and poor judgment on behalf of state legislatures for passing laws that are woefully lacking in constitutional muster.    

            The Seventh Circuit Court of Appeals determined that a law championed by Governor Rod Blagojevich is indeed unconstitutional.  After nearly a two-year legal battle and over half a million dollars in legal fees now owed by tax-payers, this matter is closed. 

            The “Safe Games Illinois Act” would have made it so that anyone who sells, rents (or permits to be sold or rented) any violent or sexually explicit video game to any minor, commits a Class A misdemeanor for which a fine of $5,000 may be imposed.  The law was passed by the 2005 Legislature and signed into law by the Governor.  However, U.S. District Court Judge Matthew Kennelly enjoined the entire law late last year, ruling it unconstitutional.

            Judge Kennelly also discounted the state’s evidence that attempted to show a causal relationship between playing violent video games and aggressive 'font-family:Garamond; color:black;'>Indeed, defendants have failed to present substantial evidence showing that playing violent video games causes minors to have aggressive feelings or engage in aggressive behavior. At most, researchers have been able to show a correlation between playing violent video games and a slightly increased level of aggressive thoughts and behavior. With these limited findings, it is impossible to know which way the causal relationship runs: it may be that aggressive children may also be attracted to violent video games."[1]

            Governor Blagojevich appealed the Court’s decision on portions of the legislation, specifically regarding sexually explicit materials.  On this appeal, the Seventh Circuit upheld the lower court’s ruling that the law is in fact unconstitutional and written too broadly.  The statue would have categorized even brief flashes of nudity as sexually explicit, to which the Court ruled that the statue was too encompassing and did not take into account the context of the nudity, as required by the third part of the Miller obscenity test.

            In using the game God of War as an example, the Seventh Circuit wrote: “Because the Sexually Explicit Video Game Law potentially criminalizes the sale of any game that features exposed breasts, without concern for the game considered in its entirety or for the game’s social value for minors, distribution of ‘God of War’ is potentially illegal, in spite of the fact that the game tracks the Homeric epics in content and theme.  As we have suggested in the past, there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.” [2]

            Furthermore, the Associated Press reports that the Governor’s administration has yet to reimburse the video game industry for over half a million dollars in legal fees that they were ordered to pay after losing the lower court case.[3]  U.S. District Judge Kennelly is expected to rule in December on whether he should intervene, possibly setting a deadline for the state to comply.  In a released statement to the AP Gail Markels of the Entertainment Software Association said, “The end result of the governor’s quixotic and politically motivated effort is that Illinois taxpayers now owe the video game industry over half-a-million dollars.”

            Similarly, in Louisiana this week, U.S. District Judge James Brady officially ruled the anti-video game law unconstitutional, after issuing a preliminary injunction in August.  The bill was authored with the help of anti-video game activist Jack Thompson under the premise that it could survive any legal challenge.  But like its predecessors, this law too, could not hold up to a First Amendment challenge.

            In response to a Motion for Summary Judgment filed by the plaintiffs, Entertainment Software Association and Entertainment Merchants Association, Judge Brady referred to his ruling on the preliminary injunction in granting a permanent injunction, blocking HB1381 from taking effect.[4]  In his ruling for the preliminary injunction, Judge Brady also cited faulty evidence as a reason for blocking enforcement. 

            A press release issued by the Entertainment Software Association states, “What makes Judge Brady’s action unusual and remarkable is that he issues his ruling from the bench rather than through a written decision, a strong signal that he felt the State’s arguments were so without merit that they didn’t even require a detailed opinion beyond the Judge’s August decision imposing the preliminary injunction.”[5] 

            Louisiana marks the ninth decision in six years upholding First Amendment protection for video games.[6]  Like in Illinois, the ESA intends to collect reimbursement for expended legal fees from the state of Louisiana. Governor Kathleen Blanco and the Louisiana Legislature would be well-advised to focus their attention and budget on hurricane Katrina survivors instead of wasting tax-payers money on faulty evidence, poorly drafted bills and unconstitutional concerns.  But Louisiana and Illinois are not alone - according to a press release by the Entertainment Software Association, a slew of states and municipalities have been court ordered to reimburse ESA for legal fees for initiating similar pieces of legislation: Illinois, $510,000; Washington state, $344,000; St. Louis, $180, 000; Indianapolis, $318,000; and Michigan, $182,349.[7]  The hungry who could have been fed, or the homeless who could have been sheltered with that money is hard to fathom. 

Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou, DeWitt & Walters, www.FirstAmendment.com.  He has been practicing for over 18 years, and represents clients involved in all aspects involved in the video gaming industry.  He recently launched www.GameCensorship.com to serve as a clearinghouse for information relating to videogame censorship efforts.  Nothing contained in this article constitutes legal advice.  Please consult with your personal attorney regarding specific legal matters.  Mr. Walters can be reached at Larry@LawrenceWalters.com, or via AOL Screen Name: “Webattorney.” 



[1] Findings of Fact and Conclusions of Law, Entertainment Software Association, et al. v. Rod Blagojevich, et al., Case No. 05-C-4265, (N.D. Ill. December 2, 2005).

[2] Entertainment Software Association, et al. v. Rod Blagojevich, Governor, page 14 (7th D.C.A. November 27, 2006).

[3] See “Blagojevich hasn’t paid for video lawsuit as ordered,” (November 27, 2006), which can be viewed at:

http://www.suntimes.com/news/metro/151030,blago112706.article.

[4] Ruling on Motion for Summary Judgment, ESA v. Charles Foti, Case No. 3:06-cv-00431-JJB-CN (M.D. La. November 29, 2006).

[5] Press Release Issued by Entertainment Software Association, “Louisiana Judge Strikes Down Unconstitutional Video Game Law,” (November 30, 2006), which can be viewed at: http://www.theesa.com/archives /2006/12/louisiana_judge.php.

[6] Id.

[7] Press Release Issued by Entertainment Software Association, “Michigan Must Pay Over $180,000 in Legal Fees to Video Game Industry,” (December 1, 2006), which can be viewed at:  http://www.theesa.com/archives/ 2006/12/michigan_must_p.php.


© Lawrence G. Walters (2011). All rights reserved.