B. Violence Ordinance Takes a Hit as Court Questions Harm to Minors

     The City of Indianapolis passed an ordinance in 2000 limiting the access of young people to arcade video games that depict sex and violence in a manner “harmful to minors.”  A federal district court refused to issue an injunction against the ordinance, but was overruled in 2001 by the U.S. Court of Appeals for the Seventh Circuit.  American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th Cir. 2001).

     The Indianapolis ordinance defined “harmful to minors” as applying to “an amusement machine that predominately appeals to minors’ morbid interest in violence or minors’ prurient interest in sex, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for persons under the age of eighteen (18) years, lacks serious literary, artistic, political or scientific value as a whole” to those under 18, and contains either “graphic violence” or “strong sexual content.”  Id. at 573.  

     The ordinance further stated that “graphic violence” includes “an amusement machine’s visual depiction or representation of realistic serious injury to human or human-like beings where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfiguration (disfigurement).”  Id.

     The ordinance prohibited the operator of five or more video-game machines in one place from allowing a minor, unaccompanied by a parent, to use “an amusement machine that is harmful to minors.”  The ordinance also mandated appropriate warning signs and required that such machines be separated by a partition from other machines in the location.  Id.  The purported justification for the ordinance was the city’s belief that participation in violent video games engenders violence on the part of the players, at least when they are minors.

     The manufacturers of the video games and their trade association filed suit to enjoin enforcement of the ordinance as a violation of freedom of expression.  Evidence in the case included several games that the city believed violated the ordinance.  A preliminary injunction was denied.  American Amusement Machine Association v. Kendrick, 115 F. Supp. 2d 943 (S.D. Ind. 2000). 

     In a precedent-setting opinion by Judge Richard Posner, the U.S. Court of Appeals for the Seventh Circuit reversed the trial court’s denial of a preliminary injunction.  The appellate court remanded the case to allow the city to offer “compelling” evidence to bring the ordinance “into conformity with First Amendment principles.”  However, this is unlikely in light of Judge Posner’s wry observation:

[C]ommon sense says that the City’s claim of harm to its citizens from these games is implausible, at best wildly speculative.  Common sense is sometimes another word for prejudice, and the common sense reaction to the Indianapolis ordinance could be overcome by social scientific evidence, but has not been.  The ordinance curtails freedom of expression significantly....  American Amusement, 244 F.3d at 579.

     The trial judge acknowledged that the video games violating the ordinance were “speech” within the meaning of the First Amendment, but held that the ordinance would violate free speech only if the city lacked “a reasonable basis for believing the ordinance would protect children from harm.”  The trial court, in denying an injunction, found a “reasonable basis” in a pair of empirical studies that purported to show that playing violent video games tends to make young persons more aggressive, and that violence in the media engenders aggressive feelings.  Since the ordinance tracked conventional standard definitions for obscenity, the trial judge reasoned that this eliminated any concern that the ordinance might be excessively vague.

     In reversing the trial court, Judge Posner rejected the city’s argument that coupled violence with sex, holding that “violence and obscenity are distinct categories of objectionable depictions.”  Though obscenity is excluded from First Amendment protection, that fact “neither compels nor forecloses a like exclusion of violent imagery.”  The court reasoned that although there are possible common interests that motivate obscenity laws and laws regarding violent depictions, the concerns are different. 

     The principal reason for the proscription of obscenity, he observed, is not that it is harmful (which is the ostensible basis for the Indianapolis ordinance), but that it is offensive -- i.e., that it “violates community norms regarding the permissible scope of depictions of sexual or sex-related activity.”  The opinion continues:

[O]bscenity is to many people disgusting, embarrassing, degrading, disturbing, outrageous, and insulting, but it generally is not believed to inflict temporal (as distinct from spiritual) harm; or at least the evidence that it does is not generally considered as persuasive as evidence that other speech can be regulated on the basis of its content, such as threats of physical harm, conspiratorial communications, incitements, frauds and libels and slanders.  Id. at 574-75.   

     In contrast with violent images, “no proof that obscenity is harmful is required either to defend an obscenity statute against being invalidated on Constitutional grounds, or to uphold the prosecution for obscenity.”  Id. at 575.

     The court analyzed the violent content of games introduced in the record, including one called “The House of the Dead.”  This game, the court observed, “depicts zombies killing flamboyantly, severing of limbs, effusion of blood, which is so stylized and patently fictitious, that no one would suppose it obscene in the sense in which a photograph of a person being decapitated might be described as obscene.”  These depictions would “not turn anyone’s stomach,” according to Judge Posner.  Id.

     Since the basis of the ordinance is the assumption that violent video games cause harm by engendering aggressive attitudes and behavior, which might lead to violence, the ordinance is based upon a different concern than that of obscenity laws.  The government does have a role, since “protecting people from violence is at least as hallowed a role for government as protecting people from graphic sexual imagery,” but the court observed that there was no showing that the video games at issue have such effect.  In contrast with the case of obscenity, such a showing is indispensable.  Judge Posner, a distinguished legal scholar as well as a prolific author, noted that:

Classic literature and art, and not merely today’s popular culture, are saturated with graphic scenes of violence, whether narrated or pictorial.  The  notion of forbidding not violence itself, but pictures of violence, is a novelty, whereas concern with pictures of graphic sexual conduct is of the essence of the traditional concern with obscenity.  Id. at 575-76.   

The opinion is replete with the comparison and contrast between depictions of graphic sexual matter and explicit violence in terms of the legal consequences.

     The court rejected the city’s argument that the ordinance also concerned itself with the welfare of game-playing children and not just the welfare of potential victims.  In terms of violent imagery, as distinct from graphic sexual depictions, it is necessary for the state to present a compelling basis to validate the ordinance. 

     In a unique aspect of the opinion, Judge Posner engaged in a psychological and literate analysis of what is necessary to show a “compelling,” as distinct from a merely “plausible,” basis.  After observing that children have First Amendment rights, Judge Posner stated that they “must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise.”  Id. at 576-77 (emphasis added).     

     Judge Posner interestingly observed that since the right to vote is personal, rather than a right exercised on behalf of parents, “the right of parents to enlist the aid of the State to shield their children from ideas of which the parents disapprove, cannot be plenary ... people are unlikely to become well-functioning independent-minded adults and responsible citizens if they are raised in an intellectual bubble.”  Id. at 577.    

     The judge then rhetorically asked whether children should be able to read the Odyssey without the presence of an adult, or The Divine Comedy, or War and Peace, or Edgar Allen Poe, or Frankenstein, or Dracula.  The video games, the judge observed, are no different: “We are in the world of kids’ popular culture.  But it is not lightly to be suppressed.”  Id.    

     The court was not persuaded by the city’s argument that “whatever contribution to the marketplace of ideas and expression the games in the record may have the potential to make is secured by the right of a parent ... to permit the child to play the games.”  That right is largely illusory, the court said, yet “conditioning a minor’s First Amendment rights on parental consent of this nature is a curtailment of those rights.”  Id. at 578 (emphasis added).      

     The court rejected the social science evidence on which the city relied, since those studies did not find that video games have ever caused anyone to commit a violent act (as opposed to feeling aggressive), or have caused the average level of violence to increase.  The studies thus are not evidence that violent video games are any more harmful to the consumer or to public safety than violent movies or other violent, but passive, entertainments.  As the court noted:

Violent video games played in public places are a tiny fraction of the media violence to which modern American children are exposed.  Tiny -- and judging from the record of this case not very violent compared to what is available to children on television and in movie theaters today.  The idea that a child’s interest in such fantasy mayhem is “morbid” -- that any kid who enjoys playing [the games] should be dragged off to a psychiatrist -- gains no support from anything that has been cited to us in defense of the ordinance.  Id. at 579.

      On Oct. 29, 2001, the U.S. Supreme Court denied certiorari.  Undoubtedly, then, the Seventh Circuit’s opinion in American Amusement Machine Association will be cited frequently, as attempts to censor video games that are allegedly “harmful to minors” proliferate in an effort to “protect our children.”       

-- Burton Joseph