GAME ORDINANCE RAISES FREE SPEECH ISSUES


(This is an archived case summary)

The plaintiff association brought a freedom of speech challenge to an Indianapolis ordinance that restricted access to anyone under 18 to arcade games that were “harmful to minors”, defined as games which “predominantly appeal to the minors' morbid interest in violence.” One of the games targeted was the “House of the Dead”, where players massacre swarms of zombies. The ordinance required such games to be behind a partition, and stated that no minor would be allowed to play without an accompanying adult.

The District Court had agreed with the Plaintiffs that video games are “speech” within the meaning of the First Amendment, and that children have rights under the free speech clause. However, the District Court also ruled that the ordinance would violate the First Amendment only if the City lacked “a reasonable basis for believing the Ordinance would protect from harm.” Since that court found there was a reasonable basis (based partly on expert evidence of psychologists) to correlate violence in video games to aggressive behaviour in minors, and because the ordinance followed the conventional standard of obscenity, the District Court found in favour of the Defendants.

The District Court therefore denied a request by the Plaintiffs for a preliminary injunction against the ordinance until the actual constitutional validity of the ordinance was decided. However, the Court of Appeals noted the difference between obscenity, which falls outside the protection of the First Amendment and can be regulated, and violence. The main difference, the Court pointed out, was that “obscenity” had been judicially considered in the context of depictions of a sexual nature. Obscenity, as a legal standard, does not require proof of harm.
The Court of Appeals described “House of the Dead” as depicting “zombies being killed flamboyantly, with much severing of limbs and effusion of blood; but so stylized and patently fictitious is the cartoon-like depiction that no one would suppose it ‘obscene' in the sense in which a photograph of a person being decapitated might be described as ‘obscene’.” Because the ordinance was not intended to prevent breaches of the peace (which could be defensible), but was intended to regulate violent images, the Court held that the symmetry with conventional obscenity “breaks down”.

The Court made an interesting connection between First Amendment rights and the right to vote, pointing out that children should not be a “blank” when they turn 18 and exercise their right to vote. Since the right to vote is a personal right, the Court held that “the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.”

The Court went on to add that “[v]iolence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.”

The Court found that the restriction of the freedom of expression was not offset by a compelling justification. It found in favour of the appellant Plaintiffs, remanded the case to the lower court and ordered an injunction. It does not appear that the case went any further.

American Amusement Machine Association v. Teri Kendrick
March 23, 2001
US Ct. of Appeals, 7th Cir.
244 F. 3d 954
Keywords: freedom of speech - censorship - obscenity - violent video games
Summary by: Byron Yep and Michael Mjanes

 

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