Battle in the Bayou
-A Look at the Free Speech Victory in Louisiana
By: Lawrence G. Walters, Esq.
www.GameAttorneys.com
© Lawrence G. Walters, Esq. (2006). All rights reserved.

            One of the skirmishes of the ubiquitous cultural war that grips our freedom-loving country involves the attempt by numerous states to ban access to graphic video games.  Although the courts regularly strike down these laws on constitutional grounds, state legislatures remain quite diligent in their efforts to “protect” children at the expense of cherished constitutional rights.  The latest scene unfolds in Louisiana, where U.S. District Court Judge James Brady has issued a preliminary injunction against Act 441, a law which would restrict the sale of violent video games to minors. 

            Act 441 was borne from HB1381, sponsored by Rep. Roy Burrell, which applies a three pronged approach to banning video games if the following criteria are met: 1) if the average person, applying contemporary community standards, found that the game, taken as a whole, appeals to the minor’s “morbid interest in violence;” 2) if the game depicts violence in a manner that is offensive to the prevailing standards in the adult community pertaining to what is suitable for minors; or 3) if the game, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

            Judge James Brady is the seventh judge to invalidate a law restricting the sale or rental of video games to minors.  This court’s ruling affirms that the statute “constitutes a content-based invasion of First Amendment rights”[1] for both video game producers and retailers, as well as their playing patrons.  He draws on Supreme Court rulings to further state that “violent expression is as much entitled to the protection of free speech as the best of literature.”[2]  

            In drafting of the legislation, the state drew upon “evidence” that playing violent video games stimulates violent, aggressive behavior.  However to date, a conclusive study linking the playing of so-called violent video games to violent or aggressive behavior has yet to materialize.  Although the argument that playing these games leads to violent behavior and/or psychological harm has been used repeatedly, Judge Brady states that these laws cannot be defended on the grounds that they are “designed to protect minors from some form of ‘psychological harm,’ as that amounts to nothing more than ‘impermissible thought control.’”[3]

            The drafters had hoped that the law’s tracking of the prongs of the Miller Test used to define ‘obscenity’ would save the measure when it was challenged in court.  What they apparently overlooked was the fact that historically, the obscenity only applies to sexually-oriented materials; not to violence.  The Supreme Court has staked out special territory for erotic materials, and made sexually-explicit obscenity an exception to the First Amendment’s protection of expressive materials.  It would be a quantum leap to apply that same exception to violent expression, which has historically enjoyed full First Amendment protection, regardless of its form.  While that may be a sad commentary on what we, as a society, deem important from a constitutional perspective, it is the law, nonetheless.

            The ruling, itself, is another victory for First Amendment rights supporters.  As technology has evolved, artists have discovered new avenues of creative expression.  Video games are an interactive medium that has brought books and movies even closer to its audience, and deserves the same protections that those books and movies enjoy.  Judge Brady iterates this in his ruling: “Under the Statute, for example, a minor could be legally barred from buying or renting an “M” rated video game containing violent content, but the same minor could legally buy or rent the movie or book on which the video game was based.”[4]

Judge Brady’s recent ruling will prevent Act 441 from taking effect.  The Entertainment Software Association and the Entertainment Merchants Association filed suit against the state seeking an injunction on grounds that the law infringes on free speech rights and violates the Fourteenth Amendment’s equal protection clause.  Attorney General Charles Foti has not announced whether or not he will appeal the ruling.  The Plaintiff has reportedly filed a motion for summary judgment, forcing the State to come up with some hard evidence that violent video games cause actual harm, aside from possible change in attitude, to those who play them. 

            Once again, state legislatures have wasted time and money in attempts to stifle creative expression that does not fit into the strict confines of their moral agenda.  Parents, and parents alone, are responsible for determining controls to oversee what their children play.  Video games are not only a lucrative industry and a popular lifestyle for both children and adults, they are an increasingly large part of America’s contribution to modern art and literature. 

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] Ruling on Motion for Preliminary Injunction and Motion to Dismiss, p.11, ESA v. Charles Foti, Case No. 06-431-JJB-CN (M.D. La. 2006).

[2] Quoting Winters v. New York, 333 U.S. 507, 510 (1948).

[3] ESA v. Charles Fot, suprai, p. 15.

[4] ESA v. Charles Foti (M.D. La.) page 19


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