CHICAGO, IL –In a ruling issued yesterday, the 7th U.S. Circuit Court of Appeals upheld the previous ruling of U.S. District Judge Matthew Kennelly, stating that Illinois’ Sexually Explicit Video Game Law (SEVGL) and Violent Video Game Law (VVGL) are both unconstitutional.“Primarily because we conclude that the Sexually Explicit Video Game Law is not sufficiently narrowly tailored, we affirm the judgment of the district court,” Judge Ann Claire Williams wrote for the panel, which also include Judge William J. Bauer and Judge Ilana Diamond Rovner.
The Court noted several flaws in SEVGL, including the fact that under the definition of “sexually explicit” contained in the law, the first two prongs of the Miller test (named for the landmark obscenity case, Miller v. California) are present, but the third prong of the test is omitted.
The 7th Circuit noted that “in failing to consider Miller, the drafters of the SEVGL also neglected to include a requirement that any work in question be considered ‘as a whole’ in determining whether a defendant should be subject to criminal penalties.”
“While the Court has yet to explicitly fuse Miller and Ginsberg, it seems clear to us that in so amending the adult test for obscenity, the Court also intended to require that the work be considered ‘as a whole’ in the context of statutes applicable to juveniles,” the Court states in the ruling issued yesterday. “As Judge Kennelly correctly observed, this deficiency, combined with the SEVGL’s lack of the third Ginsberg/Miller prong, makes likely the prospect of criminal prosecutions for the sale of games that are beyond the scope of the State’s compelling interest – games that have ‘social importance for minors.’”
Specifically, the court cited God of War, one of the games introduced into evidence by the Entertainment Software Association (ESA – the plaintiff in the case), as an example of a game that would be subject to SEVGL, but that also has “social value for minors.”
“Because the SEVGL potentially criminalizes the sale of any game that features exposed breasts, without concern for the game considered in its entirety or for the game’s social value for minors, distribution of God of War is potentially illegal, in spite of the fact that the game tracks the Homeric epics in content and theme,” the Court observes in its ruling. “As we have suggested in the past, there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.”
The court also ruled that even if the panel had found no inherent problems in the SEVGL’s definition of “sexually explicit,” the statute would still fail strict scrutiny, because “the plaintiffs have identified other less restrictive alternatives to the SEVGL.”
“Most obviously, the State could have simply passed legislation increasing awareness among parents of the voluntary ESRB ratings system,” the court notes in its ruling.
“The Supreme Court has indicated that ‘[w]hen plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute,’” the court continues in its ruling. “The Government has not met this burden with regard to this proposal.”
Noting that the “district court relied on evidence introduced at trial that, under the current voluntary ratings regime, parents are involved in eighty-three percent of video game purchases for minors” adding that the state “has not pointed to evidence to the contrary.”
“If Illinois passed legislation which increased awareness of the ESRB system, perhaps through a wide media campaign, the already-high rate of parental involvement could only rise,” the court reasons in its ruling. “Nothing in the record convinces us that this proposal would not be at least as effective as the proposed speech restrictions. In short, the SEVGL is overbroad, it is not narrowly tailored, and it cannot survive strict scrutiny.”
The court also found the statute’s labeling and signage requirements to be unconstitutional and took umbrage in particular to the size of the labels required under the SEVGL.
“Applying strict scrutiny, we cannot say that the ‘18’ sticker is narrowly tailored to the State’s goal of ensuring that parents are informed of the sexually explicit content in games,” Williams writes in the ruling. “As we described above, the State has not demonstrated that it could not accomplish this goal with a broader educational campaign about the ESRB system.”
Williams further noted that “at four square inches, the ’18’ sticker literally fails to be narrowly tailored – the sticker covers a substantial portion of the box. The State has failed to even explain why a smaller sticker would not suffice. Certainly we would not condone a health department’s requirement that half of the space on a restaurant menu be consumed by the raw shellfish warning. Nor will we condone the State’s unjustified requirement of the four square-inch ‘18’ sticker.”
Similarly, the signage requirements of the SEVGL struck the court as excessive, even if they were to be assessed as constitutionally permissible.
Noting that the SEVGL requires that each of the three signs proscribed under the law must have dimensions of no less than 18 by 24 inches, the court observes that many video game stores would be pressed for other signage space if there were to comply with the law.
“Many video game stores are as small as one room in an indoor mall,” the Court observes in its ruling. “Little imagination is required to envision the spacing debacle that could accompany a small retailer’s attempt to fit three signs, each roughly the size of a large street sign, into such a space. We think that this deficiency reflects the narrow tailoring failure of the entire signage and brochure scheme, and we agree with the district court that it is unconstitutional.”
In related news, the Associated Press reports that Illinois Governor Rod Blagojevich’s administration has not yet paid the legal fees of the ESA in the case – as Judge Kennelly ordered them to do in August of this year.
“The end result of the governor’s quixotic and politically motivated effort is that Illinois taxpayers now owe the video game industry over half-a-million dollars,” said Gail Markels in a statement issued by the ESA.
At a hearing on November 15th, Laura Liu, a private practice attorney representing Governor Blagojevich as a “special assistant attorney general,” said that the governor’s office thought the money would be drawn from the Illinois attorney general’s “judgment fund,” according to the AP.
The only problem with the idea of paying the fees from out of the “judgment fund” is that no such fund or account exists, according to Cara Smith, a spokeswoman for the office of the attorney general.
Judge Kennelly is expected to rule next month on whether to intervene in the situation, or allow more time for Governor Blagojevich and the State to work things out with Jenner & Block, the firm representing the ESA.
According to the AP, Blagojevich spokesman Gerardo Cardenas would not comment on the payment of the legal fees, beyond to say that the State would “comply with any court order.”
Cardenas also refused to explain why the Blagojevich had not complied with Kennelly’s August 9th court order, which did in fact order the administration to pay, nor would he indicate when the state might comply with that order, according to the AP.
