Federal Judge Enjoins Louisiana Video Game Law

U. S. District Court Judge James Brady has enjoined the new Louisiana law banning the sale of violent video games to minors, saying that “[d]epictions of violence are entitled to full constitutional protection” contrary to the language in LRS 14:91.14. The law is similar to statutes that have been blocked in other states including California, Illinois and Michigan. Judge Brady wrote in part that

“…the plaintiffs have sufficiently asserted potential harm to give them standing….” Further the judge found that “Section 91.14(A) of the Louisiana Revised Statutes criminalizes the sale or rental of certain “interactive video or computer games”…to anyone under the age of 18 in Louisiana….The video games proscribed…are those that meet all of the following criteria: (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.”

The judge measured the likelihood that the plaintiffs would succeed on the merits of their First Amendment claim that the statute was impermissibly burdening speech. In response the state maintained that “the Statute regulate[d] conduct, rather than speech, comparing the Statute’s restrictions to laws restricting sales of tobacco or alcohol to minors.” Wrote Judge Brady, “The State’s argument overlooks a line of cases holding that video games are protected free speech….Indeed, it is the “expressive element” of video games that led to enactment of the Statute….The fact that the Statute applies to video games that “depict violence” makes no difference as a matter of First Amendment scrutiny. Depictions of violence are entitled to full constitutional protection….Indeed, the Supreme Court…has stated that violent expression is “as much entitled to the protection of free speech as the best of literature.”…For the reasons stated above, the court concludes that the Statute regulates protected free speech.”

The court examined the statute using the strict scrutiny standard and evaluated the state’s proffered compelling state interests: preventing physical and psychological harm to minors. “Under Brandenburg, the government must prove that the targeted expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”…Thus, the government may not punish speakers based solely on a prediction or suspicion that their words will tend, in the aggregate, to encourage undesirable behavior….The government may not limit minors’ exposure to creative works based on a general belief that they may be “psychologically harmful.”…Therefore, the State may not restrict video game expression merely because it dislikes the way that expression shapes an individual’s thoughts and attitudes….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. Much of the “evidence” presented consisted of newspaper articles on the evils of video games….None of these are conclusive….”

Read the entire ruling here. The case is Entertainment Software Association v. Foti, Civil Action No. 06-431-JJB-CN (U.S.D.C., Middle District of Louisiana)(decided August 24, 2005).