Section VI

On-Line Issues: A

A.  Controversial Ruling Finds

Video Games Not Protected Speech

 

      Video games are not speech protected by the First Amendment, a federal district judge in St. Louis ruled in 2002.  The ruling raised eyebrows because it ran contrary to a precedential decision only a year earlier by a federal court of appeals, which found that video games were indeed protected and that children had a constitutional right to access them.  The controversial and closely watched lower court ruling is now before the U.S. Court of Appeals for the Eighth Circuit.

 

Background

      In October 2000, the St. Louis County council enacted Ordinance 20,193, barring minors from purchasing, renting, or playing violent video games deemed “harmful to minors” unless the minor is accompanied by a consenting parent or guardian.  The law defines “harmful to minors” as any video game containing graphic violence or strong sexual content that appeals to minors’ “morbid interest in violence or minors’ prurient interest in sex” and is offensive to prevailing standards among adults regarding “suitable materials” for minors.  “Graphic violence” is defined as any visual depiction or representation of realistic injury to a human or a “human-like being.”

      The ordinance requires video arcades to physically segregate such video games and to label the area “Restricted -- 17.”  In addition, the video game establishment must place a red dot on games deemed “harmful to minors” and provide a parental disclosure notice in half-inch high letters informing players that “red dot” games are not suitable for minors.  Arcade owners are forbidden from admitting a minor to the restricted area unless a parent is physically present, and retailers cannot sell or rent a video game deemed “harmful to minors” without a parent’s presence and consent.  The ordinance adopts the voluntary ratings systems developed by organizations like the Entertainment Software Review Board and the American Amusement Machine Association, presuming that games rated  “M” for mature, “AO” for adults only, or “red” for strong violence contain materials deemed harmful to minors.

      The Interactive Digital Software Association (IDSA), representing stores, arcades, and companies that make and sell video games and game software, responded to these restrictions by filing a lawsuit against St. Louis County.  The lawsuit asserted that the ordinance imposed unconstitutional restrictions on protected speech, citing the decision of the U.S. Court of Appeals for the Seventh Circuit in American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th Cir. 2001).  That decision extended full First Amendment protections to video games and software.  In addition, the IDSA complaint claimed the ordinance was unconstitutionally vague and that the St. Louis County council had improperly used voluntary video game ratings systems to identify games falling under the law’s proscription. 

      Soon after filing the lawsuit, IDSA filed a motion for summary judgment before Judge Stephen Limbaugh (an uncle of radio commentator Rush Limbaugh) of the U.S. District Court for the Eastern District of Missouri. 

    

Judge Limbaugh’s Opinion

      On April 19, 2002, Judge Limbaugh denied IDSA’s motion for summary judgment, rejecting all of IDSA’s constitutional arguments on the grounds that video games are not a form of expression protected by the First Amendment.  Interactive Digital Software Association v. St. Louis County, 200 F. Supp. 2d 1126 (E.D. Mo. 2002).

    Relying upon a string of older decisions denying First Amendment protection to games like bingo and blackjack, Judge Limbaugh argued that video games are more like board games than motion pictures, and thus are not protected speech under the First Amendment.  Judge Limbaugh then applied a strict scrutiny analysis to the ordinance, despite ruling that video games were not protected speech.  He concluded that, even if video games were entitled to First Amendment protection, the county’s ban on sales of violent video games to minors passed constitutional muster. 

      The judge first ruled that the county had a compelling interest in protecting the emotional and physical health of children, and a compelling interest in assisting parents in guarding their children’s well being.  Judge Limbaugh then held that the law was narrowly tailored to achieve those results.  In his view, the law impinged only on the First Amendment rights of video game makers to reach minors who did not have parental permission to view or play violent video games.

      Judge Limbaugh rejected the plaintiff’s argument that the terms of the ordinance were impermissibly vague.  He ruled that the language used in the ordinance, when “measured by common understanding and practices,” sufficiently described what content fell under the law’s proscriptions against violent materials.  Judge Limbaugh also rejected the video game makers’ claim that the law’s use of industry voluntary ratings improperly delegated the decision of what is “graphic violence” to the private video game industry. 

      After denying IDSA’s motion for summary judgment, he ordered the parties to submit a scheduling plan for the litigation.  IDSA and St. Louis County subsequently agreed to a scheduling plan that would have allowed the county to seek summary judgment and permitted IDSA to present additional evidence in support of its First Amendment arguments.  Judge Limbaugh, however, chose to enter summary judgment in favor of St. Louis County despite the parties’ agreement, allowing his initial denial of IDSA’s motion for summary judgment to stand as his final opinion.

 

Decision Contrary to AAMA v. Kendrick

      Judge Limbaugh’s opinion stands at odds with the decision of the U.S. Court of Appeals for the Seventh Circuit in American Amusement Machine Association v. Kendrick.  That ruling was allowed to stand on Oct. 21, 2001 when the U.S. Supreme Court denied certiorari to the City of Indianapolis.  American Amusement Machine Association struck down an ordinance passed by the Indianapolis city council that similarly required arcade operators to physically segregate violent video games in their establishments and to prevent minors from playing such games without parental permission. 

      Unlike Judge Limbaugh, however, the Seventh Circuit refused to accept the city’s contention that violent content could be excluded from First Amendment protections in the same manner as obscenity or sexually explicit “harmful to minors” materials.  In the Seventh Circuit’s view, any regulation of violent video games that conditions minors’ ability to view those games on receiving parental permission -- without conclusive evidence that video games actually cause minors to commit violent acts or cause the average level of violence in society to increase -- unconstitutionally infringes upon minors’ First Amendment right to access uncensored speech. 

      Children’s First Amendment rights.  The Seventh Circuit’s unanimous decision to overturn the Indianapolis video game ban relied heavily upon its conclusion that children have First Amendment rights independent of their parents and of any regulation designed to enforce a parental veto.

      In contrast, Judge Limbaugh emphasized “parents’ claim to authority in their own household,” and the government’s interest in providing that authority and control when parents are absent, quoting extensively from Ginsberg v. New York, 390 U.S. 629 (1968).  Judge Limbaugh characterized the video game ban as a limitation on the right of video game makers to reach an audience, rather than a restriction on minors’ right to access constitutionally protected materials that are neither obscene nor “harmful to minors” under Ginsberg

      Video games as protected speech.  Remarkably, despite the precedential nature of American Amusement Machine Association, Judge Limbaugh directly addressed the Seventh Circuit’s decision only once in the body of his opinion, when discussing whether video games are a form of expression under the First Amendment.  He contended that the Seventh Circuit never addressed that question, although Judge Richard Posner, writing for the Seventh Circuit, clearly stated that court’s opinion: 

 

Most of the video games in the record of this case, games that the City believes violate its ordinances, are stories … [s]elf-defense, protection of others, dread of the “undead,” fighting against overwhelming odds -- these are all age-old themes of literature, and ones particularly appealing to the young….  We are in the world of kids’ popular culture.  But it is not lightly to be suppressed.  American Amusement Machine Association, 244 F.3d at 577-78.

 

Decision Appealed

      On Aug. 1, 2002, IDSA filed a notice of appeal with the U.S. Court of Appeals for the Eighth Circuit, asking the court to overturn Judge Limbaugh’s decision in light of AAMA v. Kendrick and similar First Amendment decisions.  The case is being closely watched since Rep. Joseph Baca (D-Calif.) introduced a federal version of the St. Louis County ordinance following Judge Limbaugh’s decision.  Oral argument was expected to take place in the spring of 2003. 

 

--Judith F. Krug and Deborah Caldwell-Stone

 

 

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