District Court Rules State Statute Violates Free Speech Rights of Entertainment Game Creators

A district court has ruled that a Michigan state statute violates the First and Fourteenth Amendments of the U. S. Constitution and has enjoined the statute, due to take effect December 1, 2005. Judge George Caram Steeh ruled that Michigan Public Act 108 which “regulates the distribution of both sexually explicit video games and ultra violent explicit video games to those under the age of 17” violated the rights of the plaintiffs, “creators, publishers, and distributors of video games”. The court had granted a preliminary injunction on November 9, 2005, and then took up the matter of the permanent injunction.

Under its analysis, the court examined the question of “whether “video games are considered to be constitutionally protected free speech. The notion that video games are protection free speech under the First Amendent is becoming widely adopted in Circuit Courts around the States….The Sixth Circuit held that video games were protected free speech under the First Amendment for the purposes of regulating tort liability and stated that “[o]ur decision here today should not be interpreted as a broad holidng on the protected status of video games.”…However the Court did recognize that “most federal courts to consider the issue have found video games to be constitutionally protected [free speech].”…Video games are a form of creative expression that are constitutionally protected under the First Amendment. They contain artwork, graphics, music, storylines, and characters similar to movies and television shows….The defendant concedes that the First Amendment fully protects the expressive element in video games, which is not present in other forms of electronic media, can be distinguished and should not be considered protected to take into consideration the nature of interaction in various forms of entertainment media….With the rapid advancements of video game technology and new innovations, such as online gaming, video games are becoming more open ended with more possibilities to interact with other players and control the fate of the characters and the worlds they inhabit. It would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependant on each other in creating the virtual experience. For these reasons, this Court finds that video games contain creative, expressive free speech, inseparable from their interactive functional elements, and are therefore protected by the First Amendment.”

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“Since the attempted regulation of the video games is content based, the law is “presumptively invalid” and subject to strict scrutiny. …Strict scrutiny also requires the Act to be narrowly tailored and a material advancement of the State’s interest. …

The plaintiffs argue that the Act fails the three-part test set forth in Brandenburg … and therefore violates the First Amendment. Under the first prong of the Brandenburg 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.” ….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. The second prong requires that the danger of violence must be imminent. The 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. Finally, as discussed below, the State’s research fails to prove that ultra-violent video games are “likely” to produce violent behavior in children.

The defendants contest the applicability of the Brandenburg test, citing that the standard was rejected in the case of Video Software Developers Ass’n v. Schwarzenegger, …. Rather they argue that the obscenity test from Ginsberg v. New York, 390 U.S. 629 (1968) should be applied as the level of scrutiny. In Ginsberg, the Court allowed New York to restrict minors’ access to sexually explicit material, even though the restriction would have been invalid if directed toward adults. In order for free speech to be restricted under the Ginsberg test, the material must be shown to be “disgusting or degrading.” The defendants argue that some video games incorporate such a level of violence that they meet this standard. The defendants give the example of Postal II, a game in which players have the ability to shoot schoolgirls in the knees, set them on fire, and urinate on their corpses. Despite the fact that some of these games are likely to be considered “disgusting or degrading” by certain people, neither the Supreme Court nor Sixth Circuit has ever applied the Ginsberg test in cases that don’t involve sexually explicit material, James, 300 F.3d at 689. This court finds the Ginsberg test inapplicable to the ultra-violent explicit section of the Act.”

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With regard to the Fourteenth Amendment violation, the court said,

“The Constitution requires that statutes be set forth with “sufficient definiteness that ordinary people can understand what conduct is prohibited.” …Such precision is necessary to “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”…Vagueness of a “content-based regulation of speech raises special First Amendment concerns because of its obvious chilling effect on free speech”, especially where the regulation imposes criminal penalties. Plaintiffs take issue with the Act’s prohibition of “extreme and loathsome violence”, which is defined as “graphic depictions of physical injuries or physical violence against parties who realistically appear to be human beings.” …Plaintiffs aver that “human beings” is a term ill-suited to a medium that relies extensively on animated, extra-terrestrial, and fantastic forms and characters, which may have some human characteristics, or may be “human” at some times but not others. The court in E.S.A. held that the Illinois statute’s use of the term “human-on-human” violence was unconstitutionally vague, leaving “video game creators, manufacturers, and retailers guessing about whether their speech is subject to criminal sanctions.” …”It is also open to subjective interpretation and enforcement by law enforcement officers who may apply the law in an ‘arbitrary and discriminatory’ way.” …

Read the entire opinion here.