Entertainment Software Association V. Granholm Case Summary

Video Game Law Blog

November 09, 2005

This decision of the U.S. District Court, Eastern District of Michigan, Southern Division, grants a preliminary injunction that prevents the Michigan state government from enforcing Michigan Public Act 108 (the “Act”). The Act prohibits the dissemination or exhibition of sexually explicit or ultra-violent videogames to minors without the consent of a parent or guardian.

The plaintiffs in this case, the Entertainment Software Association (the”ESA”), didn't challenge the government's right to restrict the viewing or distribution of sexually explicit games to minors, but took issue with the restrictions regarding “ultra-violent” videogames. ”Ultra-violent” games are defined in the Act as those which “continually and repetitively depict extreme and loathsome violence, through real or simulated graphic depictions of physical injuries or violence” against characters that “appear to be human beings”. The Act specifically prohibits anyone from selling these games to minors, or even permitting minors to view games where acts of “cruelty, dismemberment, decapitation, maiming, disfigurement, mutilation, murder, criminal sexual conduct or torture” take place. The fines under the Act are stiff, as any person who permits a minor to view or play such a game could face fines from $5000-$40,000, and retail store managers who permit minors to view or play ultra-violent games in their establishment could spend up to 93 days in prison, and pay a $25,000 fine.

The State of Michigan argued that the restrictions and fines were necessary to safeguard the physical and psychological well-being of minors, and to prevent manifestations of violent, aggressive and anti-social behaviour in young people. Further, it argued the Act was necessary for public safety, to “alleviate the real-life harms perpetuated by minors” under the influence of these ultra-violent games.
The ESA argued that the Act wasn't constitutional. First, it violated First Amendment protections that guarantee freedom of speech, and violated the “equal protection” clause in the 14thAmendment, by singling out video games but not restricting other forms of media violence.

Judge George Caram Steeh agreed with the ESA. He found that it was already established that videogames and depictions of violence are also protected forms of free speech under the First Amendment. He noted that the Act restricts content, and that content-based restrictions are presumed to be invalid unless the defendant can show they are necessary to serve a compelling state interest, and are narrowly tailored to avoid unnecessary limitations on constitutionally-protected freedoms. He found that Michigan hadn't proven a compelling state interest to be served by the Act. Scientific research presented by the State hadn't supported the singling out of videogames from any other media as fostering aggression in viewers, and that there was no support for the proposition that videogames cause individuals to commit violent acts, or that they are more harmful to public safety than any other form of entertainment. The only harm Judge Steeh could find would be in the harsh penalties facing people in the video game industry, and that game creators, distributors and retailers would no doubt engage in self-censorship in order to avoid these penalties.

Judge Steeh concluded that the risk of harm was in the enforcement of the Act and in the irreparable harm that would come from restricting First Amendment rights, even temporarily. He granted a preliminary injunction against the enforcement of those parts of the Act respecting ultra-violent games, to remain in place until the court has reached a final decision on the constitutionality of the Act.

The case is available here.

Entertainment Software Association v. Granholm
November 9, 2005 US Dist. Ct., ED Mich.
US Dist. LEXIS 28318
KEYWORDS: freedom of speech – First Amendment – game violence – censorship – injunction