Video Software Dealers Association V. Schwarzenegger Case Summary

Video Game Law Blog

December 31, 2005

This is a December 21, 2005 decision of the U.S. District Court for the Northern District of California, San Jose division, granting a preliminary injunction against the enforcement of the California state government's violent videogame legislation (the “Act”). The injunction prevents the Act, which was to come into force on January 1, 2006, from being implemented until a final determination is made by the court regarding its constitutionality.

The Act requires “violent videogames” to be labelled and prohibits the rental or sale of these games to minors. ”Violent videogame” is defined at length in the Act, as a videogame in which a player has options to “virtually inflict” pain and suffering on other characters by a variety of options, including to kill, maim, dismember, or sexually assault an image of a human bring, in a manner that is deviant or morbid, patently offensive, or lacks serious artistic, political or scientific value for minors. The Act's definition attempts to catch those games considered gratuitously violent, or “heinous, cruel and depraved,” in that it permits players to engage in violence “beyond what is necessary to commit a killing.”

The Video Software Dealers Association (the “VSDA”) challenged the constitutionality of the Act on the grounds that it violates First Amendment rights to freedom of speech. They argued that videogames are a form of expression protected by the First Amendment, and that the definition of “violent videogame” in the Act was unconstitutionally vague, which would make enforcement impossible. For instance, are there any restrictions against violence against non-human characters? The Act prohibits those games where players can commit acts that inflict a “high degree of pain.” What does a “high degree of pain” mean? Who can judge whether an action in a game inflicts a “high degree of pain,” when it is virtually inflicted? They also argued that the Act wasn't narrowly tailored to ensure that any restrictions on freedom of speech were designed to have the least impact possible on that right.

U.S. District Judge Ronald Whyte surveyed earlier decisions from Illinois and Michigan which found similar legislation unconstitutional and granted injunctions preventing that legislation from being enforced. He found that in this case, the VSDA would be likely to succeed in a similar constitutional challenge of the Act, as they would be making the same arguments as in these successful cases that there is no certain causal link between violent videogames and violent behaviour and that the Act isn't narrowly tailored to ensure any restrictions on speech that occur to prevent the harms presented by violent videogames were only those necessary to achieve the objectives of the law.

Judge Whyte found that the California government would have a difficult time establishing that the harms posed by violent videogames are real, and can be alleviated in a direct and material way by the enforcement of the Act. He concluded that the VSDA would likely succeed at trial, or at least raise serious issues about the constitutionality of the Act, which necessitated the granting of a preliminary injunction to ensure the Act wasn't enforced until a conclusion had been reached. He found that the irreparable harm that would be caused by a restriction of First Amendment rights, and the expense and effort retailers and video game industry participants would have to undertake to begin labelling and monitoring the sale and rent of videogames while awaiting a decision, demonstrated that a preliminary injunction, prohibiting enforcement of the Act, was necessary.

The case is available here.

Video Software Dealers Association v. Schwarzenegger
December 21, 2005 US Dist. Ct., ND Cal.
401 F. Supp. 2d 1034
KEYWORDS: violent video game legislation – injunction – First Amendment – freedom of speech
Summary by: Dani Lemon