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."
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.”
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. 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. 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.”
Louisiana marks
the ninth decision in six years upholding First Amendment protection for video
games. 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. 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.”
