BATON ROUGE, LA – Judge James Brady of the Federal District Court in Baton Rouge yesterday issued a permanent injunction against implementation of Louisiana’s HB 1381, a law prohibiting the sale of some violent video games to minors. The ruling is the second court victory for plaintiff Entertainment Software Association (ESA) in less than a week against such a legislative measure.Judge Brady’s ruling is the ninth ruling from federal courts in the last six years striking down or enjoining laws designed to ban the sale of video games to minors, according to the ESA, a trade group that represents U.S. video and computer game publishers.
Granting the permanent injunction, Judge Brady took the somewhat unusual approach of ruling from the bench, rather than issuing a written decision – a move the ESA interprets as a “strong signal that he felt the State’s arguments were so without merit that they didn’t even require a detailed opinion beyond the Judge’s August decision imposing the preliminary injunction,” the ESA stated in a press release issued today.
“In nine out of nine cases, federal courts have struck down these grandstanding efforts by politicians to ban video game sales to minors,” stated Douglas Lowenstein, president of the ESA, in the release. “It doesn’t get clearer than that.”
“One hopes that enough is enough,” Lowenstein added. “Video games are like rock and roll; they’re here to stay, and it’s about time for elected officials to focus their energies, and taxpayer dollars, on truly productive and useful programs to educate parents to use the tools industry has made available, from ESRB ratings to parental control technologies.”
In Judge Brady’s August decision, he wrote that the state had overlooked previous cases in which courts of various jurisdictions had found that video games are protected free speech, writing that video games “are as much entitled to the protection of free speech as the best of literature.”
The now enjoined Louisiana legislation sought to ban sale of some violent video games to minors using language similar to the “Miller test” employed in obscenity law.
The law, written by Louisiana State Representative Roy Burrell (Dem) in conjunction with crusading Florida-based attorney Jack Thompson, prohibited the sale, lease, or rental to a minor any video game that met three conditions:
1) The average person, applying contemporary community standards, would find that the video or computer game, taken as a whole, appeals to the minor’s morbid interest in violence.
(2) The game depicts violence in a manner patently offensive to prevailing standards in the adult community with respect to what is suitable for minors.
(3) The game, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.
When the bill was debated by the state legislature, Burrell and Thompson produced research materials that asserted a causal relationship between playing violent video games and committing acts of real world violence.
Judge Brady didn’t find the data persuasive when he reviewed it, writing in his August decision that it “appears that much of the same evidence has been considered by numerous courts and in each case the connection was found to be tentative and speculative,” and that the “evidence that was submitted to the Legislature in connection with the bill that became the Statute is sparse and could hardly be called in any sense reliable.”
Brady also found that less restrictive alternatives existed that could accomplish the state’s goals, including “encouraging awareness of the voluntary ESRB video game rating system,” and “availability of parent controls that allow each household to determine which games their children can play.”
In an interview with ArsTechnica.com, Thompson blamed the outcome of the case on the Louisiana Attorney General’s office, characterizing that office’s defense of the law as “at best incompetent and at worst compromised.”
According to the Associated Press, Assistant Attorney General Burton Guidry insisted that his office “did everything we could to defend the law, but, as the judge said, the law was practically unenforceable as written.”
“The First Amendment is a mighty thing,” Guidry added.
In its release, the ESA states that it will immediately file to recover legal fees from the state, as it has successfully done in previous cases.
Monday, 7th U.S. Circuit Court of Appeals upheld a lower court’s ruling that found both Illinois’ Sexually Explicit Video Game Law (SEVGL) and Violent Video Game Law (VVGL) unconstitutional.
U.S. District Judge Matthew Kennelly has ordered Illinois Governor Rod Blagojevich’s administration to reimburse the ESA in the Illinois case.
