Federal District Judge Robert Lasnik of the Western District of Washington held, on summary judgement, that Washington's video game law was unconstitutional on free speech grounds. The law, which had been blocked by a preliminary injunction, "would have imposed a $500 fine on anyone, such as a store clerk, who sold a video game depicting violence against 'law enforcement officers'" to minors under age 17," according to Reuters (Judge Strikes Down Washington Video Game Sales Law). The Seattle Post-Intelligencer also has a report (Ban on violent videos struck down). Read the 15-page decision and order: Video Software Dealers Assoc. v. Maleng [PDF].
The case overall is a big win for free speech. However, the court also makes clear that this controversy will not be leaving us soon (See, for example: Opposition to Violent Videogames Continues).
Read on for some quotations and a summary of the case ....
A Broad Definition of Standing
The state of Washington claimed that the plaintiffs only had standing to challenge the statute on overbreadth grounds. The judge held that:
[P]laintiffs have asserted their own First Amendment rights and, in the context of the preliminary injunction motion, identified various injuries that they as game creators, distributors, and retailers would suffer if the Act became effective. Those potential injuries have not changed and the plaintiffs have standing to challenge the constitutionality of the Act insofar as it directly affects the content and distribution of their speech. In addition, plaintiffs have standing to assert the First Amendment rights of their consumers, the minors who would have been deprived of access under the Act. [citation omitted]
Videogames Are Protected Speech
A huge win here.
The early generations of video games may have lacked the requisite expressive element, being little more than electronic board games or computerized races. The games at issue in this litigation, however, frequently involve intricate, if obnoxious, story lines, detailed artwork, original scores, and a complex narrative which evolves as the player makes choices and gains experience. All of the games provided to the Court for review are expressive and qualify as speech for purposes of the First Amendment. In fact, it is the nature and effect of the message being communicated by these video games which prompted the state to act in this sphere.The court also cites the famous videogame decision from the Eighth Circuit: Interactive Digital Software Assoc. v. St. Louis County [PDF].
Violence is not Legally Obscene
Another huge win here. Washington had argued that graphic depictions are legally obscene, which would mean they have no First Amendment protection. This is not only important in this case, but in other contexts as well. For example, the FCC will be conducting a study on the pernicious effects of violence. See, Attacking Violence on Television. From the decision:
Graphic depictions of depraved acts of violence, suc as the murder, decapitation, and robbery of women in Grand Theft Auto: Vice City, fall well within the more general definition of obscenity. Nevertheless, the Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" means material that deals with sex. Only "works which depict or describe sexual conduct" are considered obscene and therefore unprotected. State statutes designed to regulate obscene material must be drafted narrowly to cover only "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value."Translation: What are you on? Drugs? Of course, the court puts it in milder terms, "The Court declines defendants' invitation to expand the narrowly-defined obscenity exception to include graphic depictions of violence."
Defendants acknowledge that the Act does not regulate works that depict sexual conduct. Undaunted by the clear pronouncements of the Supreme Court regarding the limited scope of materials that are subject to regulation as obscene, defendants argue that the Court should expand the definition of obscenity to include graphic portrayals of violence. No court has accepted such an argument, probably because existing case law does not support it. In addition to the fact that the Supreme Court has expressly limited "obscenity" to include only sexually-explicit materials, the historical justifications for the obscenity exception simply do not apply to depictions of violence. Sexually-explicit materials were originally excluded from the protections of the First Amendment because the prevention and punishment of lewd speech has very little, if any, impact on the free expression of ideas and government regulation of the sexually obscene has never been though to raise constitutional problems. The same cannot be said for depictions of violence: such depictions have been used in literature, art, and the media to convey important messages throughout our history, and there is no indication that such expressions have ever been excluded from the protections of the First Amendment or subject to government regulation.[citations omitted]
Is Violence Harmful to Minors and, thus, Can be Restricted?
Even if the violent videogames aren't obscene, Washington argued that the state could still restrict their sale to minors, as you can restrict the sale of pornographic material to minors. Wrong again says the Court. First, the Court notes that the cases in which material has been limited to minors is a branch of obscenity law and thus the cases they cite regarding restriction on sale of pornography to minors are inapplicable. Second the Court declares:
Defendants have not identified, and the Court has not found, any case in which a category of otherwise protected expression is kept from children because it might do them harm. Defendants' cannot prohibit the dissemination of otherwise protected speech simply because the audience consists of minors.
Strict Scrutiny Analysis: Compelling State Interest
This law is content-based regulation, and accordingly, must be reviewed under strict scrutiny analysis. The analysis consists of two parts, whether the law serves a compelling state interest and whether it is narrowly tailored to meet that interest. The claimed interest in this case is that "[t]he Legislature was motivated to curb hostile and antisocial behavior of youths, including violence and aggression toward law enforcement officers." Claiming a "compelling interest" is pretty easy to do. Showing that your regulation is actually related to that compelling interest is much harder. The court finds, under the generous summary judgement standard (where you construe things most favorably to the non-moving party), that
defendants have presented research and expert opinions from which one could reasonably infer that depictions of violence with which we are constantly bombarded in movies, television, computer games, interactive video ames, etc., have some immediate and measurable effect on the level of aggression experienced by some viewers and that the unique characteristics of video games, such as their interactive qualities, the first-person identification aspect, and the repetitive nature of the action, makes video games potentially more harmful to the psychological well-being of minors than other forms of media.....Nevertheless, the Court finds that the current state of the research cannot support the legislative determinations that underlie the Act because there has been no showing that exposure to video games that "trivialize violence against law enforcement officers" is likely to lead to actual violence against such officers. Most of the studies on which defendants rely have nothing to do with video games, and none of them is designed to test the effects of such games on the player's attitudes or behavior toward law enforcement officers.And, ya gotta love this line:
Assuming, for the sake of argument, that the frustrations inherent in learning a new game or console system are not responsible for any measurable increase in hostility, neither causation nor an increase in real-life aggression is proven by these studies. [footnote omitted]The Court does go on to say that many of the games are objectionable and hopes that more research is done in this area.
Strict Scrutiny Analysis: Narrowly Tailored
Even if the state has a compelling interest here, the Court found that the regulation is not narrowly tailored. The Court notes that the regulation is both over-broad and under-inclusive because it would stop games about struggles against corrupt regimes and would do nothing about games in which violence is targeted at non-law enforcement officers.
Guidance for Future Regulation
The Court does provide some pointers for a new law:
Given the nationwide, on-going dispute in this area, it is reasonable to ask whether a state may ever impose a ban on the disseminations of video games to children under 18. The answer is "probably yes" if the games contain sexually explicit images, and "maybe" if the games contain violent images, such as torture or bondages, that appeal to the prurient interest to minors. [citations omitted]The Court also provides some specific questions legislators should ask in designing a bill.
This may be one of the funniest aspects of the decision. First Amendment regulations that are too vague create too great a chilling effect on protected speech because no one can be sure what is legal and what isn't. Thus, the laws must be thrown out. The Court asks a number of rhetorical questions demonstrating how vague the Act actually is:
Would a game built around The Simpsons or the Looney Tunes characters be "realistic" enough to trigger the Act? Is the level of conflict represented in spoofs like the Dukes of Hazard sufficiently "aggressive?" Do the Roman centurions of Age of Empires, the enemy officers depicted in Splinter Cell, or the conquering forces of Freedom Fighters qualify as "public law enforcement officers?" When pressed at oral argument, defense counsel was unable to determine whether firefighters were "public law enforcement officers," suggesting that such issues should be determined by the state courts.Conclusion: Goodbye law, legislature try again if you want. Of course, this is a district court decision, so expect an appeal, though there is no word yet whether there will be one or not.