Another First Amendment Victory for Video Games

The electronic gaming sector chalked up another impressive First Amendment victory on Monday in the case of Electronic Software Association v. Hatch. [Here’s the full decision]. James M. Rosenbaum, Chief District Judge of the District Court of Minnesota, struck down as unconstitutional a Minnesota law that passed in May of this year. The Minnesota law was unique in that it sought to impose fines on the buyers rather than the sellers of games rated either “M” for Mature or “AO” for Adults Only under the industry’s voluntary ratings system. Other state and local laws that have been struck down in recent years imposed penalties mostly on game retailers who sold games rated M or AO to minors.

But the unique Minnesota approach met the same legal fate as those other laws. Echoing the previous video game industry decisions, Judge Rosenbaum declared that “video games are a protected form of speech under the First Amendment.” In response to the State of Minnesota’s plea that, when balancing the interests in this matter, the Court should consider “the lesser societal value” of “worthless, disgusting” video games, Judge Rosenbaum cut loose with this wonderful rejoinder: “The First Amendment… was certainly established to keep the government from becoming the arbiter of what constitutes ‘worthless’ or ‘disgusting’ speech. The Court declines the State’s invitation to enter into an evaluation of this kind.”

That’s pretty powerful stuff. But wait… it gets even better.

Judge Rosenbaum didn’t shy away from the argument at the core of the State’s case: the notion that video games encourage violent or aggressive behavior by minors. Specifically, the State relied heavily on a study by Dr. Craig Anderson that claims to support a causal link between games and aggression. “The Court’s review of the article reveals it to be completely insufficient to demonstrate an empirical, causal link between video games and violence in minors,” argued Judge Rosenbaum. Moreover, he noted that, “The State itself acknowledges, both in its submissions and during its counsel’s oral argument, that it is entirely incapable of showing a causal link between the playing of video games and any deleterious effect on the psychological, moral, or ethical well-being of minors” And finally, Judge Rosenbaum held that “It is impossible to determine from the data presented whether violent video game cause violence, or whether violent individuals are attracted to violent video games. In short, the State is simply unable to ‘demonstrate the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate those harms in a direct and material way.’ (IDSA v. St. Louis).” … “Further, there is no showing whatsoever that video games, in the absence of other violent media, cause even the slightest injury to children.”

Judge Rosenbaum also held that–consistent with cases from cases from earlier decades dealing with the MPAA ratings system–it was improper for the State to give a private industry’s voluntary ratings system the force of public law. It would mean that the state is delegating to a private industry the standard by which content could be censored by the state. (Of course, if the government was successful in ever passing any of these laws and was able to use the industry’s ESRB ratings scheme as a censorship tool, it is likely that this voluntary system would quickly be abandoned and that government would seize upon the opportunity to promote a public code.)

This was another resounding victory for the video game industry and freedom of speech & expression. For a summary of the impressive track record of First Amendment wins that the game industry has racked up over the past six years, take a look at pages 13-16 in my recent study: “Fact and Fiction in the Debate Over Video Game Regulation.”

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