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Saturday, December 03, 2005

Law - Federal judge strikes down Illinois law on video games; Bayh backs federal legislation; Michigan injunction; earlier Indianapolis effort

The Chicago Tribune reports today:

Dealing a defeat to Gov. Rod Blagojevich, a federal judge on Friday struck down a state law that would ban the sale of violent and sexually explicit video games to minors.

In a ruling the video-game industry had said was inevitable, U.S. District Judge Matthew Kennelly ruled that the law, which was to take effect Jan. 1, violated constitutional protections on freedom of speech.

The governor said the ruling would be appealed.

State efforts to ban sexually explicit games went too far, Kennelly wrote in a 53-page opinion. The judge said the state came "nowhere near" proving that a ban on violent games would help prevent real-world violence by children. * * *

The law would have made sales of violent or sexually explicit video games to minors, such as the wildly popular "Grand Theft Auto: San Andreas," punishable by up to a year in jail and a fine of up to $5,000. The video games still would have been available to adults.

The 53-page decision is Entertainment Software Ass'n., et al. v. Blagojevich (ND Ill. 12/2/05). Access it here.

An AP story published in the Indianapolis Star December 1st reported:

INDIANAPOLIS — Sen. Evan Bayh said today he would introduce legislation designed to prevent minors under age 17 from buying violent video games, saying there is increasing evidence that such games increase aggressive behavior in children.

“There is a growing body of research that indicates that exposure to graphic violence, graphic sexual content has adverse consequences to kids and their behavior — anger-management issues, violent-behavior issues, frustration, desensitization — things that come back to haunt society as a whole,” said Bayh, D-Ind.

He said the bill would prohibit anyone under 17 from purchasing M-rated games — those that under a video industry rating system should only be sold to players 17 or older — without the express consent of a parent. The legislation might also include fines up to $1,000 against stores that would violate such a law, Bayh said.

Sen. Joseph Lieberman, D-Conn., and Sen. Hillary Clinton, D-N.Y., are backing a similar proposal.

And a federal judge in Michigan issued a preliminary injunction Wednesday stopping a Michigan law that bars retailers from selling or renting violent video games to minors from going into effect until a lawsuit filed by the gaming industry is resolved.

The Entertainment Software Association, a trade group representing U.S. computer and video game publishers, claims the law is unconstitutionally vague and limits First Amendment rights.

The gaming industry also has sued to block similar laws approved in California and Illinois. [emphasis added]

That looks to be an error in the AP/Star story - the Michigan injunction was issued on a Wednesday, but it was November 9th. Here is an ABC News story from Nov. 10th. Some quotes:
LOS ANGELES (Reuters)—A federal judge on Wednesday granted video game industry groups' request for a preliminary injunction preventing the state of Michigan from enforcing a new law aimed at banning sales of violent video games to minors.

The ruling from the U.S. District Court for the Eastern District of Michigan comes amid a fierce campaign by lawmakers and some parents' groups to limit access to games with adult content. California and Illinois have passed similar laws and a Florida lawmaker is trying to get like legislation passed.

"(Michigan) has been unable to demonstrate the perceived harm it seeks to protect against," Judge George Caram Steeh wrote in a ruling obtained by Reuters.

He added that the state had failed to show what harm could result from selling games to minors. The judge also said "obvious harm" could arise from "stifling free speech" if the law goes into effect as planned on December 1.

"Plaintiffs have demonstrated that the Act is unlikely to survive strict scrutiny, and that irreparable harm follows from the loss of First Amendment freedoms," Judge Steeh wrote.

The Entertainment Software Association, the Video Software Dealers Association and the Michigan Retailers Association took on the Michigan law and are fighting the same battles in California and Illinois.

Courts already have blocked similar legislation in Washington State, the city of Indianapolis and St. Louis County in Missouri, finding that the laws violated free speech guarantees in the U.S. Constitution. [emphasis added]

The 8-page Michigan injunction, Entertainment Software et al. v. Granholm (ED Mich., 11/9/05) is not readily available online, here it is courtesy of the Jenner & Block site.

This lengthy Mary Beth Schneider Star story from yesterday, Dec. 2nd, noted:

Courts have struck down previous attempts to limit minors' access to such games, including an attempt in 2000 by Indianapolis Mayor Bart Peterson to ban minors from playing violent video games in public arcades without parental consent. In 2001, the U.S. Supreme Court let stand an appeals court ruling barring enforcement of the city ordinance.

Bayh, though, said he thinks the legislation would withstand judicial scrutiny. "It is much more narrowly defined (than past attempts), basically making mandatory the voluntary system that is already in place," he said.

A story today in the Peoria Illinois Journal Star, writing about yesterday's federal court ruling striking down the Illinois law, reports:
An appeal would go to the Seventh Circuit U.S. Court of Appeals, which in 2001 threw out an Indianapolis ordinance that regulated violent video games. Bersell said he believes it is "highly unlikely" that the Court of Appeals would rule differently in the Illinois case. [emphasis added]
Here is a City of Indianapolis press release from 3/23/01 announcing that the 7th Circuit had ruled against the ordinance. The case was American Amusement Machine Association v. Kendrick, available here via FindLaw.com.

Finally, here is an article on FindLaw.com titled "Can States Constitutionally Regulate Video Games, As California Is Considering Doing? The First Amendment Framework That Would Probably Apply." The authors are law profs Vikram David Amar and Alan Brownstein.

Posted by Marcia Oddi on December 3, 2005 09:12 AM
Posted to General Law Related