On March 17, 2008, a three-judge panel of the 8th Circuit U.S. Court of Appeals upheld a Minnesota federal district judge’s ruling that a Minnesota law banning minors from renting or purchasing violent video games is unconstitutional.
The Minnesota Restricted Video Games Act, Minn. Stat. section 325I.06 (2006), would prohibit anyone under the age of 17 from purchasing or renting video games rated “M” (Mature) or “AO” (Adults Only), punishable by a $25 fine for the buyer. Additionally, the law would require video game retailers to post a sign to notify customers about the law and fine.
The law was challenged by the Entertainment Software Association and the Entertainment Merchants Association, groups representing the video game industry, immediately after it was signed into law on May 31, 2006. On July 31, 2006, Judge James Rosenbaum of the U.S. District Court for the District of Minnesota granted the plaintiffs’ motion for permanent injunction in Entertainment Software Association v. Hatch, 443 F. Supp. 2d 1065 (Dist. Minn. 2006), ruling that the law violates the First Amendment.
Rosenbaum wrote that since video games enjoy First Amendment protection, the Minnesota Restricted Video Games Act, which regulates games based on their content, is “presumptively invalid and subject to strict scrutiny.” Under strict scrutiny, the State must demonstrate that the law is narrowly tailored to achieve a compelling state interest.
Rosenbaum ruled that the state failed to prove the existence of a causal relationship between video games rated “M” or “AO” and any harm to Minnesota’s children. “The State’s professed concerns, in the absence of evidence showing them to be well-founded, do not outweigh the chilling effect on free speech that would result from the Act’s becoming effective,” Rosenbaum wrote.
Rosenbaum also held that the act was unconstitutional because it depends on the rating system of the Entertainment Software Rating Board (ESRB), a private ratings group to which game makers voluntarily submit. According to Rosenbaum, since the ESRB privately makes ratings determinations with no public input or opportunity to challenge a rating, and since the ratings would result, under the Minnesota law, in prohibiting speech and levying civil penalties, the act was an unconstitutional violation of the First Amendment as well as the due process clause of the Fourteenth Amendment because it is an “improper delegation of authority.”
“This delegation of power [to the ESRB] affords no basis upon which a court could constitutionally impose a fine on the children of the state of Minnesota for violating the Act,” Rosenbaum wrote.
The 8th Circuit upheld Rosenbaum’s ruling on March 17, 2008 in Entertainment Software Association v. Swanson, 519 F.3d 768 (8th Cir. 2008). The court held that it was bound by Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003), in which the 8th Circuit ruled that any restriction on the purchase or rental by minors of violent video games is subject to strict scrutiny analysis because violent video games are free speech protected under the First Amendment.
The court repeated its reasoning from the Interactive Digital decision, saying that “while we have concluded that an interest in safeguarding the psychological well-being of minors is ‘compelling in the abstract,’ the alleged harms must be shown to be ‘real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.’”
The court said that it accepted that the state of Minnesota has a compelling interest in safeguarding the “psychological well-being of its minor citizens,” and that the state’s evidence provided substantial support for the contention that violent video games have a “deleterious effect upon the psychological well-being of minors,” but because the precedent of Interactive Digital demands a showing of “statistical certainty of causation,” the Minnesota Restricted Video Games Act must be found unconstitutional under strict scrutiny.
On March 28, 2008, Minnesota Attorney General Lori Swanson filed a petition for rehearing by an en banc panel of the 8th Circuit U.S. Court of Appeals.
According to GamePolitics.com, a blog operated by a group called the Entertainment Consumers Association, the language of the three-judge panel’s opinion suggests that it might be sympathetic to the Minnesota Attorney General’s position in an en banc rehearing.
In particular, the blog referred to the following passage in the opinion: “We are not as dismissive of … evidence [of a link between violent games and violent behavior] as have been some of the courts that have found similar evidence to be inadequate to establish the causal link.” The blog post on the decision is available online at http://gamepolitics.com/2008/04/11/minnesota-appealing-video-game-law-ruling/.
Attorney Robert Corn-Revere discussed the drive to regulate violence in the media at the 2007 Silha Lecture, presented Oct. 1, 2007. (See “2007 Silha Lecture Focuses on Media Violence Regulation” in the Fall 2007 issue of the Silha Bulletin.)
Corn-Revere said that laws similar to the Minnesota Restricted Video Games Act have been struck down in recent years on a constitutional basis by courts in Indiana, Missouri, Washington, California, Illinois, Michigan, Louisiana, and Oklahoma.
According to Corn-Revere, courts have resisted attempts by lobbying groups and legislators to mandate regulatory regimes for violent content in video games, movies, and music, resisting strategies that would extend narrow traditionally accepted categories of unprotected speech, such as obscenity, to encompass violent content. State and federal courts have said instead that violent media deserve as much First Amendment protection as other forms of literature or entertainment, while also citing the practical problem of creating a satisfactory legal definition of excessive violence.
– Patrick File
Silha Fellow and Bulletin Editor