Video Game Law Blog

February 08, 2006

(a case summary)

The Governor of Michigan signedMichigan 2005 Public Act 108into law in September 2005, to go into effect on December 1, 2005. The Act is designed to prohibit the dissemination, exhibiting or displaying of sexually explicit (under Part I of the Act) and ultra-violent (under Part II) video games to minors without the consent of their parents or guardians.

The Entertainment Software Association, the Video Software Dealers Association and the Michigan Retailers Association immediately challenged the constitutionality of the Act, and obtained a preliminary injunction in November 2005 preventing Michigan from enforcing Part II of the Act (the part dealing with violent games).

The defendants (Michigan's Governor and Attorney General, and the Wayne County Prosecuting Attorney) then moved to dismiss the plaintiffs' case. The US District Court for the Eastern District of Michigan issued its decision on January 19, 2006.

The defendants first argued that a federal district court did not have jurisdiction over claims against an unconsenting state. However, there is an exception allowing suits against state officers in their official capacities if they have some connection with the enforcement of the legislation in question. The Court found that the plaintiffs and their members faced an immediate risk of state-wide enforcement of the Act and its 'likely unconstitutional"? restrictions on speech. Since both the Attorney General and the Governor had the power and duty to enforce Michigan's laws, the case fell within the exception. Further, the Act would limit freedom of speech regardless of whether any prosecutions or enforcement actions were brought, in the form of self-censorship and chilling of speech. Because the mere existence of the Act would violate First Amendment (i.e., free speech) rights, the plaintiffs could challenge the Act before anyone was charged under it. The Court therefore upheld this portion of the plaintiffs' complaint.

Second, the defendants attacked the plaintiffs' claim that the Act violated due process by delegating the power to determine what video games are subject to the Act's restrictions to a private organization (the ESRB) without any accompanying legislative standards. The Court rejected the defendants' arguments here as well first, the Court had jurisdiction because the plaintiffs were claiming violations of due process under the US Constitution; second, the Act clearly refers to an 'entertainment industry rating system"? established by the ESRB, which constitutes a delegation to a private, voluntary rating system that is not subject to judicial review. The Court upheld this portion of the complaint as well.

Finally, the Court dismissed another portion of the plaintiffs' complaint; the plaintiffs consented, as their constitutional claims were covered elsewhere in the complaint.

Therefore the Court upheld the plaintiffs' primary arguments. The case will continue.

Decision isEntertainment Software Associationv.Granholm, 2006 U.S. Dist. LEXIS 2792 (January 19, 2006)