Presentation Transcript

1. REGULATION OF VIOLENT VIDEO GAMES: WILL FREE SPEECH GET PWNED?

   By: Lawrence G. Walters, Esq. Walters Law Group www.FirstAmendment.com
2. ANOTHER FLAVOR OF CENSORSHIP “Censorship reflects society's lack of confidence in itself. It is a hallmark of an authoritarian regime.” ~Justice Potter Stewart
3. OVERVIEW OF VIDEO GAMES IN THE COURT The government has failed repeatedly in demonstrating a compelling interest in restricting access to video games. A causal relationship between playing video games and aggressive, violent behavior has yet to be established using scientific methods admissible in court. Most courts have ruled that video games are protected speech under the First Amendment.
4. THE CULTURE WAR Other cultures, such as Japanese and European, more tolerant on issues of nudity and violence in video games. Japanese videogames are marketed to both adults and children, and are not stereotyped as “kids” games. Nintendo would often censor Japanese versions of games before being published in the U.S. This nude statue in Castlevania IVwas "clothed" in the US release.
5. Look Mom, No Blood!
6. VIDEO GAMES ARE FREE SPEECH The Courts have consistently ruled that video games are protected speech and restrictions are invalid. California (February, 2009) Oklahoma (September, 2007) Louisiana (November, 2006) Minnesota (July, 2006) Michigan (April, 2006) Illinois (December, 2005) Washington (July, 2004) St Louis (June, 2003) Indianapolis (March, 2001) State and local taxes have gone to pay attorney’s fees in these cases, amounting to over $2 million dollars. - Entertainment Software Association
7. The Beginning…AMERICAN AMUSEMENT MACHINE ASSOCIATION V. KENDRICK244 F.3d 572 (7th CIR. 2001) City passed an ordinance restricting minors from playing violent video game machines in arcades. A three judge panel for the U.S. Court of Appeals for the Seventh Circuit unanimously declared that the Ordinance was unconstitutional. Judge Posner authored the opinion and found video games entitled to First Amendment protection, comparing their interactive nature to literature and movies. The Court was not persuaded by so-called scientific studies purporting a link between video games and violent behavior. The Court ordered the Defendants to pay $318k to cover attorney’s fees in the case.
8. IDSA V. ST. LOUIS COUNTY200 F.Supp.2d 1126 (E.D. MO. 2002) rev’d329 F.3d 954 (8th CIR. 2003) St. Louis County passed an Ordinance prohibiting the access to violent video games by minors without parental consent. The District Court ruled that video games are not protected speech under the First Amendment, and even if they were, the Ordinance was narrowly tailored. Judge Limbaugh compared video games to bingo and ruled that video games lack creative expression, were not sufficiently ‘informative’ and should not be considered protected speech. Furthermore, Judge Limbaugh held that the County Ordinance was within its constitutional limits by passing this law. This is the lone opinion that concluded that video games are not protected speech, and was reversed on appeal.
9. Making it right…IDSA V. ST. LOUIS COUNTY, 329 F.3d 954 (8th CIR. 2003) The Plaintiffs appealed the decision and the Eighth Circuit reviewed the District Court ruling, reversing Judge Limbaugh’s decision. The Court of Appeals ruled that the law is unconstitutional and that video games are protected speech under the First Amendment. The 8th Circuit rejected so-called scientific studies purporting a link between video games and violent behavior. The Defendants were ordered to pay attorney’s fees in the amount of $180,000.
10. VIDEO SOFTWARE DEALERS ASSOCIATION V. MALENG,325 F.Supp.2d 1180 (W.D. WASH. JULY 2004) Washington passed a law prohibiting the depiction of violence towards law enforcement officers in video games. Judge Lasnik of the Western District of Washington granted the Plaintiff’s Motion for Summary Judgment, permanently enjoining the law, ruling that video games are protected speech. The court notes, “Whether we believe the advent of violent video games adds anything of value to society is irrelevant; guided by the [F]irst [A]mendment, we are obliged to recognize that ‘they are as much entitled to the protection of free speech as the best of literature.'" Court rejected the “invitation to expand the narrowly-defined obscenity exception to include graphic depictions of violence.”
11. VSDA V. MALENG, Continued… Law was both over-inclusive (covering heroic struggles against corrupt regimes) and under-inclusive (not addressing other media outlets with similar content.) Court cited to the value of depictions of violence throughout art and literature. Again, the soundness of studies suggesting a link between violence and video games was questioned. The Court also noted concerns with vagueness and the ability to determine what defines a “law enforcement officer.” Would this include a soldier or a fire man? How about an undercover cop? The State was ordered to pay $344,000 in attorney’s fees.
12. ESA V. BLAGOJEVICH(PART ONE)404 F.Supp.2d 1051 (N.D. ILL. 2005) In December 2005, the N.D. of Illinois issued a ruling permanently enjoining the two separate laws passed by the IL legislature: 1) the Violent Video Game Law (VVGL), restricting violent video games, and 2) the Sexually Explicit Video Game Law (SEVGL), which would have made it a Class A misdemeanor for anyone to sell, rent, or permit the sale or rental of, any sexually explicit video game to any minor. Furthermore, the SEVGL required extensive signage explaining the ESRB rating system. Again, the ruling judge cited to tenuous findings attempting to establish a link between violent video games and actual aggressive behavior.
13. THE VIOLENT VIDEO GAME LAW “VVGL” Although the court generally agreed that the State had a compelling interest to protect children, the State failed to prove a causal link between violent video games and aggressive behavior. The VVGL was ruled unconstitutional for failing to show that the State had a compelling interest and for not being narrowly tailored to meet its purpose. The court also ruled that the term “violent video games” was unconstitutionally vague, since it pertained to games which depicted death or serious bodily harms to “humans.” Hard to tell who is “human” or humanoid in video games.
14. SEX IN VIDEO GAMES? God of War was one of the first video game franchises to include female nudity in its storyline. The game also provides a detailed history of Greek Mythology.
15. THE SEXUALLY EXPLICIT VIDEO GAME LAW (“SEVGL”) The Court ruled that the SEVGL did not comport with Miller, failing to meet the 3-prong test that regulates obscene material. The statute omitted the third prong addressing serious value of the games, and omitted the ‘as a whole’ requirement. See, God of War. The Court ruled that SEVGL is unconstitutionally vague and was not narrowly tailored in order to pass the strict scrutiny test. The State was ordered to pay attorney’s fees in the amount of $510,000.
16. THE ESA V. BLAGOJEVICH SAGA CONTINUES…PART TWO, AT THE 7TH CIRCUIT469 F.3d 641 (7th CIR. 2006) Gov. Blagojevich appealed the lower court’s ruling pertaining to SEVGL. (State did not bother with the VVGL ruling). In November 2006, the 7th Circuit upheld the District Court’s ruling, granting a permanent injunction against the law. Furthermore, Judge Williams stated that the statute was “constitutionally overbroad,” as it failed to consider all requirements of the Miller test. The State was court-ordered to pay $34,550 in attorney’s fees.
17. ESA V. GRANHOLM426 F.Supp.2d 646 (E.D. MICH. 2006) The Michigan Legislature passed a law restricting the sale/rental of “ultra-violent” and sexually explicit video games to minors. The Court issued a preliminary injunction, noting that the Plaintiffs were likely to succeed on the merits of their case. A permanent injunction was issued the following year, citing to previous rulings in the 7th and 8th Circuits, which ruled that video games are protected speech. The Court ruled that the law does not pass the strict scrutiny test as the State has failed to show a compelling interest or that the law was narrowly tailored to meet its asserted goals. The Court also ruled that the “harmful to minors” standard which is used to regulate sexually-explicit speech cannot be extended to include violence. The Court ordered the State to pay $182,000 to reimburse attorney’s fees. An appeal or rewrite of the law has been promised.
18. ESA V. HATCH443 F. Supp.2d 1065 (D. MINN. 2006) The State of Minnesota passed a law in June 2006 restricting the sale or rental of video games rated M or AO, fining minors who tried to purchase or rent $25. Judge Rosenbaum of the U.S. District Court for Minnesota issued a permanent injunction against the law, citing to previous rulings which recognized First Amendment protection for video games. Judge Rosenbaum questioned the Legislature’s motives in passing such a law: “Several other states have tried to regulate minors’ access to video games. Every effort has been stricken for violating the First Amendment...The Court will not speculate as to the motives of those who launched Minnesota’s nearly doomed effort to “protect” our children. Who, after all, opposes protecting children? But, the legislators drafting this law cannot have been blind to its constitutional flaws.”
19. HATCH, Continued…THE DISTRICT COURT STRIKES DOWN THE LAW Ultimately, the District Court ruled that the law was unconstitutional under the First and Fourteenth Amendments. The statute failed to pass the strict scrutiny test due to lack of a compelling interest in protecting minors from violent video games. “The Court is aware of no facet of First Amendment jurisprudence, excepting only obscenity, which permits the Court, let alone the State, to evaluate the worth of protected speech. The Eighth Circuit has made it clear that violent video games are not obscene and are entitled to First Amendment protection. The First Amendment, which has its counterpart in Minnesota’s own Constitution, was certainly established to keep the government from becoming the arbiter of what constitutes ‘worthless’ or ‘disgusting’ speech. The Court declines the State’s invitation to enter into an evaluation of this kind.” Justice Kagan, take note!
20. ESA V. SWANSON, (HATCH, Continued)THE EIGHT CIRCUIT RULING519 F.3d 768 (8th CIR. 2008) In March 2008, the 8th Circuit upheld the District Court’s ruling that the law is unconstitutional, but started to show some frustration with violent video games. In upholding the decision, the 8th 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. But 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.  Decision also appeared to invite en banc review by the state. The court also determined that the State has a compelling interest in protecting the psychological well being of its minor citizens. 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.” The AG requested an en banc review of the Appellate decision, but the motion was denied. The State was ordered to pay $65,000 in attorney’s fees.
21. THE BATTLE CONTINUES TWO 7TH CIRCUIT DECISIONS… TWO 8TH CIRCUIT DECISIONS… IF YOU THINK THE BATTLE IS OVER… YOU DON’T KNOW JACK…!
22. JACK THOMPSON! “They are about to pay a wicked price, and I aim to make sure they pay it.” -- Jack Thompson
23. JACK’S ‘ACCOMPLISHMENTS’ Recall that Thompson led the crusade against 2 Live Crew's lyrics from its 1989 album, As Nasty As They Wanna Be. Thompson declared the game Doom to be a "murder simulator" and blamed it for the Columbine massacre. Thompson filed a civil suit against Grand Theft Auto's developer Take Two Interactive after a player of the game un-relatedly killed 3 police officers. He charged the developers of “mentally molesting minors for money.” He lost his pro hac vice status, preventing him from continuing as counsel of record on the case.
24. AND THE LIST GOES ON… Thompson has helped draft anti-video game legislation in a number of states. Each and every law he promoted was struck down by the courts on constitutional grounds. Many states were forced to pay attorneys fees to the trade associations when they prevailed. Thompson took another shot at Take Two Interactive in the form of a lawsuit aimed at preventing the release of the game Bully. He argued the game violated Florida's public nuisance laws. That case resulted in another loss for Thompson after an embarrassing court outburst in Miami.
25. …AND ON… Posey v. Take Two/Sony was dismissed by Judge Valerie Huling in Albuquerque, NM based on lack of jurisdiction and failure to state a claim. Thompson filed a wrongful death suit against T2/Sony after 14 year-old Cody Posey killed his father, stepmother and stepsister, supposedly incited and influenced to kill his family after playing Grand Theft Auto. It was later revealed in Posey’s juvenile court hearing that he was sexually and physically abused. Thompson accused the Dept. of Defense of having an “unholy alliance” with the video game industry. His Press Release alleges DoD uses video games as recruitment tool. Cites false reports that Virginia Tech shooter played ‘Counter Strike.’ Claims Military is teaching that war is glamorous and free of consequences.
26. UNTIL… In September 2008, Jack Thompson's prestigious career came to a "shocking" conclusion when the Florida Supreme Court accepted a Florida judge's recommendation of permanent DISBARMENT. ”Based on the record before it, the Court agrees that respondent is not amenable to rehabilitation. Further, the Court approves the referee’s recommendation that permanent disbarment is the appropriate sanction.” Thompson unsuccessfully challenged the ruling in Federal Court. HIT THE ROAD JACK!! Jack Thompson
27. ESA V. FOTI451 F.Supp. 823 (M.D. LA. 2006) Judge Brady issued a permanent injunction against a state statute seeking to ban the sale of violent video games to minors. One of Jack Thompson’s masterpieces. Court admonished the state for overlooking a series of previous rulings that declared First Amendment protection for video games. “[t]his Court is dumbfounded that the Attorney General and the state are in the position of having to pay taxpayer money as attorney’s fees and costs in this lawsuit. The Act, which this Court found to be unconstitutional, passed through committees in both the State House and Senate, then through the full House and Senate, and to be promptly signed by the Governor. There are lawyers at each stage of this process…The Court wonders why nobody objected to the enactment of this statute. In this court’s view, the taxpayers deserve more from their elected officials.”
28. BATTLE IN THE BAY Continued… Judge Brady issued a ruling from the bench granting a permanent injunction based on previous rulings which affirmed First Amendment protections for video games. He also encouraged the voluntary use of already existent ESRB ratings and other parental controls to address the issue. The State was ordered to pay $91,000 in attorney’s fees.
29. EMA V. HENRY2006 WL 2927884 (W.D. OKLA. 2006) The Oklahoma Legislature passed a law banning the sale to minors of computer or video games that included “inappropriate violence.” (Talk about viewpoint discrimination!) The Western District of Oklahoma issued a permanent injunction, ruling the video games are protected speech and that violence can not be regulated in the same manner as obscene content. Judge Cauthron ruled that the law was not narrowly tailored to advance the State’s interests. The Court also ruled that the definition of “inappropriate violence” was unconstitutionally vague and violates the Fourteenth Amendment. Judge Cauthron also noted that the vagueness would affect retailers as they might know everything there is to know about a game, but not know whether or not it is an offense to sell the game to a minor.
30. VSDA V. SCHWARZENEGGER:FROM THE BEGINNING2007 WL 2261546 (N.D. CAL. AUG 6, 2007) Rep. Leland Yee (D) introduced legislation banning the sale of ultra-violent video games and requiring signage explaining the regulations. The bill was signed into law in October 2005. In December 2005, Judge Whyte of the N.D. of California issued a preliminary injunction blocking the law from taking effect. In August 2007, Judge Whyte issued a final ruling that the law is unconstitutional and violates the First Amendment. He cited to previous rulings outside the Ninth Circuit that have upheld First Amendment protections for video games.
31. VSDA V. SCHWARZENEGGER, Continued…556 F.3d 950 (9th CIR. 2009) In February 2009, the Ninth Circuit Court of Appeals unanimously reaffirmed the lower court ruling that the law is unconstitutional under the First Amendment. The law failed to pass muster under the strict scrutiny test and the state failed to prove that it has a compelling interest or that the law was narrowly tailored to meet its ends. The Ninth Circuit Judge reiterated the lower court’s decision that the state could have considered less restrictive means, such as the ESRB rating system, than to restrict minors’ First Amendment rights. Furthermore, the Court found that there is “no substantial evidence that supports the Legislature’s conclusion that violent video games cause psychological or neurological harm to minors.”
32. THE SUPREME COURT GRANTS THE GOVERNATOR’S REQUEST FOR CERTIORARI The State of California sought certiorari review of the Ninth Circuit’s panel decision. Shortly after deciding U.S. v. Stevens, disapproving violence as a trigger for stripping First Amendment protection, the Supreme Court has agreed to review the Ninth Circuit’s ruling, for a potentially decisive ruling on the legal fate of violent video games.
33. WHAT DOES THE FUTURE HOLD FOR VIDEO GAMES? Answer & Amicus Briefs due September 18, 2010. FALA will participate. Will the High Court hold that video games are protected speech? Can violence be a trigger for regulating speech to protect minors? What is the proper test for the labeling restriction?
34. WHAT ABOUT THE FEDS? Sen. Barack Obama–“I would call upon the video game industry to give parents better information about programs and video games by improving the voluntary rating system we currently have…And even if the industry does do some responsible self-policing, there's still a role for the federal government to play. We need to understand the impact of these new media better. That's why I supported federal funding to study the impact of video games on children's cognitive development.”– Kotaku.com Obama praised the new technical innovations that have allowed parents better control over what their children play, but stated the ratings system needed to be made clearer. “If the industry doesn’t, then my administration would,” he said. Cinemablend.com
35. PREVIOUS FEDERAL BILLS Children Protection from Video Game Violence & Sexual Content Act (HR 2958) – Directs the FTC to review the ESRB and to commission the GAO to study the impact of video games on minors. (Senate companion bill: S.1902) Truth in Video Game Rating Act (S.568) – Requires the ESRB to review all content before assigning ratings. Introduced by Sam Brownback (R-KS). Video Game Decency Act of 2007 (HR 1531) – To prohibit deceptive acts in the content rating of video games. Result of the “Hot Coffee” mishap. HR 231 was introduced in January 2009 by Rep. Joe Baca (D-CA) and would require certain warning labels to be placed on video games that are given ratings higher than those rated T for teens.
36. Ending Quote There is more than one way to burn a book. And the world is full of people running about with lit matches. --Ray Bradbury
37. The End.