Entertainment Software Association Et Al V. Blagojevich Case Summary

Video Game Law Blog

December 02, 2005

This is a December 2, 2005 decision of the U.S. District Court, District of Illinois, Eastern Division, granting a permanent injunction against the implementation by the Illinois state government of the Violent Video Games Law (the 'VVGL"?) and the Sexually Explicit Video Games Law (the 'SEVGL"?), on the grounds that they violate the First Amendment. The decision prevents these laws, which were to come into effect on January 1, 2006, from ever being enforced.

The VVGL creates criminal penalties for selling, renting violent videogames to minors. The law also makes it a crime to allow a minor to purchase a violent game using a self-service checkout, and creates penalties for failing to label a violent game. A violent game is defined in the VVGL as one that contains 'depictions of or simulations of human-on-human violence in which the player kills or otherwise causes serious physical harm to another human."? 'Serious harm"? is defined in the law as including dismemberment, decapitation, amputation, maiming, disfigurement, mutilation of body parts, or rape.

The SEVGL creates similar criminal penalties regarding the sale, rent and labelling of games with sexually explicit games, which are defined as including content that the average person would find as depicting or representing 'an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd distribution of the genitals or post-pubescent female breast."?

Both the VVGL and the SEVGL required retailers to label restricted videogames with an '18"? sticker and to post information about the videogame ratings system and the two new laws where they would be clearly visible to customers.

The Entertainment Software Association (the 'ESA"?) and the Video Software Dealers Association (the 'VDSA"?) challenged the constitutionality of these two new statutes on the grounds that they conflicted with First Amendment freedom of speech rights, while the government of Illinois argued that the laws were necessary to prevent violent, aggressive and anti-social behaviour in youth, curb societal factors inhibiting the development of youth and help them become law-abiding, productive adults, and finally, to assist parents in protecting their children from the effects of media violence.

On the issue of the VVGL, Judge Kennelly found that the research presented by the government of Illinois to prove that the laws were necessary to curb the effects of violent videogames on youth was unconvincing. He found it didn't establish a causal link between exposure to violent videogames and aggressive thinking and behaviour, nor did it demonstrate that, if a linkdidexist, it was significant or lasting. Nor could it be shown that videogame violence caused more aggression in youth than any other form of media violence, or any other societal factors, such as poverty. He concluded that he could not draw conclusions about the long-term effects of videogames on minors. 

Judge Kennelly ruled that the Illinois government would have to demonstrate that the harms the laws seek to protect against were real and that the laws would alleviate those harms in a material way before restricting First Amendment rights to freedom of speech. He ruled that the laws cannot prohibit speech on the argument that videogames, if left unregulated, might increase the chance of an unlawful act being committed at some indefinite future time.

Turning to the SEVGL, Judge Kennelly noted that while the First Amendment does permit restrictions on speech on the grounds of obscenity, the law is still subject to strict scrutiny to ensure any laws are justified by a social purpose and are constructed in the least restrictive means possible. There was no lower standard of scrutiny for the SEVGL just because it aimed to protect children. Further, he noted the SEVGL prohibits whole games based on what may amount to one scene with sexually explicit content, without regard to the value of the game as a whole. 

On the sticker requirement, Judge Kennelly noted that requiring all games with violent or sexually explicit content to be marked with an '18"? sticker tells parents and children nothing about game content and actually creates the appearance that all minors under 18 are prohibited from playing. He found that retailers, developers and distributors would begin to self-censor their products in order to avoid the sticker, which would creatively 'chill"? the videogame industry. He found there would be no way for the industry to remedy such a chill.

U.S. District Judge Matthew Kennelly agreed that the VVGL and the SEVGL were unconstitutional on the grounds that they violated First Amendment rights, were not justified by a compelling social interest and weren't narrowly tailored to minimize the effect of these restrictions, and granted a permanent injunction to ensure the laws would never come into effect in Illinois.

 The citation isEntertainment Software Association v. Blagojevich, 2005 U.S. Dist. LEXIS 31100.

Case summary by Dani Lemon.