DETROIT, MI – U.S. District Judge George Caram Steeh ruled last Friday that a Michigan law banning the sale of “ultra-violent explicit video games” to minors is unconstitutional and granted a permanent injunction against enforcement of the law.“Video games are a form of creative expression that are constitutionally protected under the First Amendment,” Steeh writes in his decision. “The defendant concedes that the First Amendment fully protects the expressive element in video games but argues that the interactive functional element, which is not present in other forms of electronic media, can be distinguished and should not be considered protected speech. Defendants’ argument fails to take into consideration the nature of interaction in various forms of entertainment media.”
The legal battle began in earnest last September, when Michigan Governor Jennifer Granholm signed into law “Michigan Public Act 108” (hereafter “the Act”), which prohibits the distribution of both “sexually-explicit” video games and “ultra-violent” video games to minors under the age of 17.
The ESA, along with the Video Software Dealers Association (VSDA) and the Michigan Retailers Association (MRA), filed a lawsuit claiming that the Act violated constitutionally protected free speech, guarantees of equal protection, and is unconstitutionally vague.
In reaching his decision, Judge Steeh clearly was not persuaded by the state’s arguments, nor the evidence offered in support of those arguments.
A three-prong test known as the “Brandenburg test” (established by a decision from the 1969 case of Brandenburg v. Ohio), set the ground rules for the restriction of otherwise protected free speech.
Under the first prong of the test, free speech may be restricted if it is “directed to inciting or producing the imminent lawless action and is likely to incite or produce such action.” Steeh ruled that the Act failed all three prongs of the Brandenburg test.
Steeh’s decision with regards to the first prong was simple – the Act fails because “The plaintiffs correctly assert that because the video game producers do not intend for the consumers to commit violent actions, the Act fails this first prong,” Steeh wrote in his ruling.
The second prong of Brandenburg requires that the danger of violence must be “imminent”. Steeh asserts flatly that “(T)he research conducted by the State has failed to prove that video games have ever caused anyone to commit a violent act, let alone present a danger of imminent violence.”
The final prong of Brandenburg is whether the speech in question is “likely to incite or produce such action”. Steeh was equally unequivocal in his assessment of the Act’s failure on that point, asserting that “the State’s research fails to prove that ultra-violent video games are ‘likely’ to produce violent behavior in children.”
Steeh also writes that “Even if the Act satisfied the Brandenburg requirements, the State has failed to support its claims by ‘substantial evidence.’”
The judge also rejected the State’s argument that instead of applying the Brandenburg test, the court should rely on the obscenity test from Ginsberg v. New York, which allows for the restriction of minors’ access to sexually explicit material, even though such restriction is invalid if directed toward adults.
“Despite the fact that some of these games are likely to be considered ‘disgusting or degrading’ by certain people,” Steeh writes, “neither the Supreme Court nor Sixth Circuit has ever applied the Ginsberg test in cases that don’t involve sexually explicit material. This court finds the Ginsberg test inapplicable to the ultra-violent explicit section of the Act.”
Steeh had plenty of other recent case-history to work with in reaching his decision, as similar laws have been struck down in other districts of late, and noted that other courts have consistently found such laws to be unconstitutional for the very reasons that the ESA challenged the Michigan law.
To support their position, attorneys for the state relied in part on two expert witnesses; Dr. Craig Anderson, a psychologist and professor at Iowa State University, and Dr. William Kronenberg, a clinical psychologist at the University of Indiana School of Medicine. Steeh appears to have been less than impressed by the evidence offered by both experts.
In addressing Anderson’s theories, Steeh writes “Dr. Anderson’s studies have not provided any evidence that the relationship between violent video games and aggressive behavior exists,” adding that Anderson’s tests “fail to prove that ‘video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere.’”
In gauging the value of Kronenberg’s research, which seeks to establish that gamers “experience a reduction of activity in the frontal lobes of the brain which is responsible for controlling behavior” while playing video games, Steeh was even less charitable in his assessment.
“Dr. Kronenberg’s research not only fails to provide concrete evidence that there is a connection between violent media and aggressive behavior,” Steeh writes “it also fails to distinguish between video games and other forms of media.”
The ESA and their counsel were clearly pleased by the decision, and not at all surprised, given their success in challenging other, similar legislation.
“As long as they keep losing and most of the time don’t even appeal, things are unlikely to change,” said Paul Smith, partner at Jenner and Block, the firm representing the ESA and VSDA in the lawsuit.
