Are the Courts Reaching the End of their Rope with Videogames?
By: Lawrence G. Walters
Weston, Garrou, Walters & Mooney
www.GameAttorneys.com
© Lawrence G. Walters, Esq. (2008). All rights reserved.

            On March 17, 2008, the Eighth Circuit Court of Appeal issued its decision in Entertainment Software Association, et al, v. Lori Swanson, etc., et al,1 (hereinafter the “Decision”), affirming the trial court’s ruling, which struck down Section 325I.06 of the Minnesota Code, imposing a twenty five ($25) dollar fine on minors who purchase videogames rated “A” “O” or “M” by the Entertainment Software Rating Board (“ESRB”).  While the initial reaction of the industry might be to rejoice in yet another victory, or perhaps emit a satisfied yawn at yet another failed piece of videogame legislation, a closer analysis of this Decision is warranted.  The courts may indeed be approaching the extent of their tolerance with the content depicted in violent videogames offered for retail consumption in the United States.
            The Minnesota Restrictive Videogames Act (“the Act”) subjected any person under the age of seventeen (17) to a civil penalty of not more than twenty five ($25) dollars, and required that retailers post a sign notifying minors of the above-referenced prohibition and penalty.  The Entertainment Software Association and the Entertainment Merchants Association challenged the statute at the district court level, and obtained a permanent injunction against its enforcement.  In defending this law, the state of Minnesota solicited the testimony of an expert witness by the name of Craig Anderson.  Mr. Anderson claimed that “well over 1000 studies…point overwhelmingly to a causal connection between media violence and aggressive behavior in some children.”2  He also suggested that preliminary research indicates the impact is far greater for violent videogames than for television, movies, or music.3  This is the kind of testimony that the industry will confront in future cases as well.  The number of ‘studies’ allegedly establishing the correlation between violent videogames and real world violence is increasing.  The more this questionable conclusion is repeated, the more likely it will be accepted as fact by lawmakers, activists, and ultimately, the courts.  
            While the Eighth Circuit Court of Appeals upheld the trial court’s decision striking down the law, a reading of the court’s opinion suggests that the judges held their figurative noses when issuing the decision.  The court took the time to detail the contents of certain modern videogames, including Postal 2: Apocalypse Weekend, The Punisher, Resident Evil 4, Manhunt, and God of War.  The Decision describes the “Mature” game content which involved scenes of decapitation, curb jobs, urination, vomit, and playing fetch with dogs, using human heads.  In upholding the decision below, the Eighth 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.4  While recognizing the binding nature of this decision, the Court took the opportunity to observe that the State hopes this decision will be overturned in an en banc review of the instant case.
            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.5  The court also determined that the State has a compelling interest in protecting the psychological well being of its minor citizens.6  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.”7  Never before has a Circuit Court of Appeal recognized such connection between violent videogames and harm to children.  Despite the recognition of this harm, however, the Eighth Circuit recognized that it was bound to hold the State to a higher standard of proof, as required with laws affecting fundamental First Amendment rights.  An empirical, causal link between exposure to violent videogames and subsequent behavior is required.8  Before announcing its decision, the court observed:
Whatever our intuitive (dare we say commonsense) feelings regarding the effect that the extreme violence portrayed in the above-described video games may well have upon the psychological well-being of minors, Interactive Video requires us to hold that, having failed to come forth with incontrovertible proof of a causal relationship between the exposure to such violence and subsequent psychological dysfunction, the State has not satisfied its evidentiary burden.9

            The industry prevailed in this case by the proverbial skin of its teeth.  Had it not been bound by the standards set forth in Interactive Video, this court would have had no difficulty upholding the challenged law.  As videogames have become more explicit in the subjects covered, and as the violence has become more lifelike, the courts have had increasing difficulty with issuing favorable rulings.  The recent decision from the Eighth Circuit supports this trend.  While the First Amendment is still squarely in the corner of the videogame industry, game developers and publishers must be wary of pushing the courts too far. Justice Scalia recently admitted, in a rare interview, that videogame legislation restricting sale to minors may well be constitutional.10  It appears that the Eight Circuit Court of Appeal would have welcomed such precedent, as it would have allowed the judges to rule in favor of the State, and against the publishers of the games referenced in the Decision.
            Certainly, First Amendment rights must take precedence over governmental control of media distribution.  Government censorship is never justified.  However, we may quickly reach a time where the courts will no longer support virtually unrestricted access by minors to type of game content referenced in the Eighth Circuit’s Decision.          The need to work with concerned parents and advocacy groups to address any legitimate complaints by parents and consumers takes on an increased importance as the courts become more and more impatient with the state of the industry and the widespread availability of mature content for minors. 

            Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou, Walters & Mooney, www.FirstAmendment.com.  He has been practicing for 20 years, and represents clients involved in all aspects involved in the video gaming industry.  He 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 __ F.3d __, Case No. 06-3217 (8th Cir. March 17, 2008).

2 Decision at p. 3. 

3 Id., citingthe Am. Acad. of Pediatrics, et. al., Joint Statement on the Impact of Entertainment Violence on Children, Congressional Public Health Summit (2000).

4 329 F.3d 954, 958 (8th Cir. 2003).

5 Decision at p. 7.

6 Id.

7 Id.

8 Id.at pp 7-8.

9 Id. at p. 8.


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