Although the matter is pending appeal in the Ninth Circuit, the latest holding by the federal district court establishes an apt legal standard by which states may constitutionally regulate the distribution of violent video game content to minors. In addition, the two district court’s decisions highlighted below provide an excellent overview and analyses of the treatment of this constitutional issue with regard to violent video games in other circuit and district courts.
Challenges Brought:
In this case, two video gaming industry associations, Video Software Dealers Association[2] and Entertainment Software Association (collectively “VSDA”), filed suit against the governor of California and other state and local officials to block the entry into force of a California state statute[3] that required certain labeling of violent video games and prohibited the sale or rental of such games to minors (“Act”). VSDA challenged the constitutionality of the statute on the bases that video grams are forms of expression protected under the First Amendment; that the labeling requirement also ran afoul of the First Amendment; and that the statute was impermissibly vague.[4]
Preliminary Injunction Granted:
The enacted law was set to go into effect on January 1, 2006.[5] VSDA won a preliminary injunction order a day earlier when the Court surveyed judicial decisions in similar challenges and determined that strict scrutiny was the applicable legal standard for the protected expression claim.[6] The Court considered, but did not decide the applicable standard as to the claim regarding the labeling requirement.[7] As to the vagueness claim, the Court determined that VSDA had not shown its likelihood on the merits.[8] As to the two First Amendment claims, however, the Court held that VSDA had at least raised serious questions going to the merits and that the balance of hardships tilted strongly in VSDA’s favor.[9]
Applicable Legal Standard and Analysis Underlying Grant of Summary Judgment and Permanent Injunction:
The parties subsequently cross-filed motions for summary judgment, and the Court entered an order on August 6, 2007, granting VSDA’s motion and entering a permanent injunction against the enforcement of the statute.[10] The Court reiterated the critical nature of free speech rights, that children were entitled to significant free speech protections, and that freedom of speech protections are not carte blanch, but that governments can place some limits on defamation, incitement, obscenity, and pornography made with children.[11]
The Court then turned to the parties’ respective arguments as to the applicable legal standard for determining constitutionality under the First Amendment. The defendants argued for the application of the standard in Brandenburg v. Ohio, 395 U.S. 444 (1969) (per curiam). The plaintiffs argued for the applicability of Ginsburg v. New York, 390 U.S. 629 (1968).[12]
The Court set forth findings made by the California legislature to justify the need for the Act, as follows:
(a) Exposing minors to depictions of violence in video games, including sexual and heinous violence, makes those minors more likely to experience feelings of aggression, to experience a reduction of activity in the frontal lobes of the bran, and to exhibit violent antisocial or aggressive behavior.
(b) Even minors who do not commit acts of violence suffer psychological harm from prolonged exposure to violent video grams.
(c) The state has a compelling interest in preventing violent, aggressive, and antisocial behavior, and in preventing psychological or neurological harm to minors who play violent video games.[13]
Brandenburg held that the First Amendment prohibited a State from forbidding or proscribing the advocacy of the use of force or of a violation of the law except where such advocacy was directed toward inciting or producing and likely to incite or produce such imminent lawless action.[14] If the Brandenburg standard applied, the Court determined that the Act would be unconstitutional, in part, because neither the defendant’s evidence nor the legislative findings suggested that the expression, even if offensive, in violent video games was directed toward inciting or producing such imminent actions.[15]
The Court noted that Ginsburg recognized that youth are to be considered differently than adults under the law, but also that Ginsburg, which dealt with expression on the grounds of obscenity, had not been applied by the Supreme Court or was proper to extend to limitations on the access of minors to other categories of expression.[16]
The Court then considered the applicability of a media violence case, Winters v. New York, 333 U.S. 507 (1949). In Winters, the state court of appeals equated violent content to sexual content with respect to indecency or obscenity. On that basis, the lower court upheld a conviction under a statute outlawing any distribution, including to non-minors, of publications principally comprised of “criminal news, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust, or crime.”[17] Winters struck down the New York statute as unconstitutionally vague, but also stated that its holding did not mean that it was impermissible for a state to punish the circulation of objectionable material, provided that it was not protected under the First Amendment, or that states were “prevented by the requirements of specificity” from their duty to eliminate the evils such objectionable material produce. Having thus analyzed Winters, the Court said that a state could regulate violent expression as in the Act’s described violent video games and that Winters implied that a narrowly-drawn regulation could appropriately do so.[18] Further, the Court said that states could have a compelling interest in restricting minors’ access to violent video games if their exposure to the games’ depictions of violence caused the children to experience aggressive feelings or exhibit violent antisocial or aggressive behavior.[19]
Turning to cases after Winter that dealt with limitations on minors’ access to violent videos, the Court observed that all of these cases have held that the First Amendment bars those limitations, either under the theory that Ginsburg cannot be expanded beyond obscene content or on the ground that the causal connection between children’s exposure to violent video games and their feelings of aggression or antisocial behavior has not adequately been established. The Court went on to summarize the holdings in these cases.[20] Although none of those cases represents binding authority, having not originated from within the Ninth Circuit, the Court nevertheless paid heed to them as indicative of strong antagonism by the courts toward such laws.[21]
Having considered the plaintiffs and defendants’ propositions, the Court held that the applicable standard was that set forth in Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989), which requires that to be constitutional, California’s content-based regulation limiting the access of minors to violent video grams “must promote the compelling interest of protecting the physical and psychological well-being of minors by the least restrictive means and the means must actually further the articulated interest.”[22] Under Sable, the Court held that, although the Act promoted a compelling interest, it was unconstitutional because it did not represent the least restrictive means and that the defendants had not shown that the Act actually furthered the articulated interest.[23]
Conclusion:
This case holds great interest for lawyers practicing in virtual world matters because it decides the applicable legal standard governing the State’s regulation of violent video game content and the access of minors to that content. Although the matter is pending appeal in the Ninth Circuit, the Court’s adoption of the standard in Sable seems particularly apt, given its special consideration of the compelling interest of the State in protecting children, but its continued rigor in sharply confining a State’s authority to regulate violent video game content and insisting that such a State so regulate without exceeding the bounds of that authority.
In addition, the Court’s decisions in granting VSDA’s summary judgment and preliminary injunctions motions serve as excellent resources for the overview of the treatment of this constitutional issue with regard to video games in other circuit and district courts.
The defendants have appealed the district court’s dispositive ruling and, as of March 2008, the matter is now pending before the United States Court of the Appeals for the Ninth Circuit. The eventual ruling by the United States Court of Appeals for the Ninth Circuit will add to the meaningful understanding of this issue across the circuits.
Media Coalition Inc., a trade association advocating free speech rights for publishers and others, maintains an updated summary of developments in this watershed case and provides links to documents. To see that material, please click here.
[1] Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034 (N.D. Cal. 2005) (Order Granting Plaintiff’s Motion for a Preliminary Injunction) & Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment, 2007 U.S. Dist. LEXIS 57472 (N.D. Cal., filed Aug. 6, 2007).
[2] This organization later changed its name to Entertainment Merchants Association. See Media Coalition, Inc.
[3] See Video Software Dealers Ass’n v. Schwarzenegger, 401 F. Supp. 2d 1034, 1038 (N.D. Cal. 2005) (citing Assembly Bill 1179 (to be codified at California Civil Code §§ 1746-1764.5)).
[4] See id. at 1039.
[5] See id. at 1037.
[6] See id. at 1043-46.
[7] See id. at 1046-47.
[8] See id. at 1040-42.
[9] See id. at 1043 & 1047-48.
[10] See Video Software Dealers Ass’n v. Schwarzenegger, Dkt. No. 5:05-CV-04188-RMW, Order on Cross-Motions for Summary Judgment (N.D. Cal., filed Aug. 6, 2007). The Court also struck the improper amicus filings by Common Sense Media. See id. at p. 4.
[11] See id. at pp. 4-6.
[12] See id. at p. 6.
[13] Id. at p. 6 (quoting 2005 Cal. Legis. Serv. Ch. 638 (A.B. 1179)(West) § 1).
[14] Id. at p. 6 (quoting 395 U.S. 444, 447 (1969) (per curiam)).
[15] Id. at p. 7 (citations omitted).
[16] See id. at pp. 7-8 (citations omitted).
[17] Id. at p. 8 (quoting People v. Winters, 294 N.Y. 545, 549-50, 553 (1945)).
[18] See id. (citations omitted).
[19] See id. at pp. 8-9.
[20] See id. at pp. 8-12 (citations omitted).
[21] See id. at p. 9.
[22] Id. at p. 12 (quoting Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989)).
[23] See id. at pp. 12-16 (citations omitted). Because it had held the Act to be unconstitutional, the Court did not reach the labeling issue. See id. at p. 16.
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