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Federal Courts at Odds: Should Minors Have Access to Violent Video Games?

Source: David Hudson, "Judge Upholds Video Game Restriction: St. Louis County Case Doesn't Jibe With 7th Circuit Decision." Adapted and reprinted by permission of the ABA Journal. © ABA Journal Ereport, May 3, 2002. The ABA Journal Ereport is an ABA member benefit.

In a First Amendment case closely watched by the video game industry, a federal judge has upheld a St. Louis County, Mo., ordinance that restricts minors' access to violent video games.

According to the judge, games (unlike books and motion pictures, for example) are not a form of protected speech. The decision conflicts with a Seventh Circuit Court of Appeals decision in 2001 that struck down a similar Indianapolis, Ind., ordinance, where the court further asserted that minors are better off exposed to violence than shielded from it until they are 18.

Protection vs. Protection?
The First Amendment guarantees freedom of religion, of speech, and of the press, and it also protects the right to assemble peacefully and the right to petition the government. The courts have interpreted speech to include many forms of communication and expression, for example, conversations, speeches, letters, books, posters, movies, videos, sports, games, Web sites, and e-mail are all forms of speech under the law.

To shield the public, lawmakers sometimes pass local ordinances and other kinds of laws prohibiting certain kinds of speech (in the case of children, laws often ban access to pornography, for example). Parties who disagree with such a law may seek to test its constitutionality in court, claiming that the form of speech being prohibited is protected by the First Amendment. (It is an important feature of the U.S. legal system that the courts, not the lawmakers, have the final say on whether laws are constitutional.)

Recently, much attention has focused on the effects of violent media on children. The St. Louis County ordinance attempts to protect children by restricting their access to violent video games. But video game businesses and associations involved in the case viewed the games as being protected under the First Amendment and therefore sued to have the ordinance struck down as unconstitutional. The judge disagreed.

Ironically, the case demonstrates that, if video games are protected by the First Amendment, then minors cannot be denied access to the games, regardless of whether doing so might protect them. It also demonstrates the difference between the rights of minors and adults in the U.S. legal system. Most adults have full rights under the Constitution. The St. Louis County ordinance only restricts the access of minors to violent video games, and it is silent with respect to adults' access to the same games.

St. Louis County Details
The St. Louis County ordinance requires arcade owners to segregate violent video games that are deemed harmful to minors into "Restricted-17" areas. It also prohibits the sale or rental of such games to minors unless they have a parent's or guardian's consent. In passing the ordinance, county legislators said that "exposure of children to graphic and lifelike violence contained in some video games has been correlated to violent behavior."

In Interactive Digital Software Association v. St. Louis County, No. 4:00CV2030 SNL (E.D. Mo.), the Interactive Digital Software Association (IDSA) led a group of companies and game-related associations in the First Amendment challenge to the ordinance. Arguing that the ordinance restricted freedom of expression rights, they maintained that, if movies and plays are entitled to First Amendment protection, then so should this new wave of interactive video games.

After examining games such as "Resident Evil," "Mortal Kombat," "Doom," and "Fear Effect," Senior U.S. District Judge Stephen N. Limbaugh wrote: "This court reviewed four different video games and found no conveyance of ideas, expression, or anything else that could possibly amount to speech. The court finds that video games have more in common with board games and sports than they do with motion pictures."

In his opinion, Limbaugh held that even if video games were found to be a form of expression meriting some First Amendment protection, the ordinance would still be constitutional because it served the compelling governmental interest of protecting the physical and emotional health of children.

"The court finds that the county council can rely on society's accepted view that violence is harmful to children, especially when plaintiffs have admitted that intense violence may not be suitable for those younger than 17 years of age," Limbaugh wrote.

Uncertainty Ahead
Limbaugh's decision conflicts with the Chicago-based Seventh U.S. Circuit Court of Appeals decision in American Amusement Machine Association v. Kendrick, 244 F.3d 572 (2001), which struck down a similar Indianapolis ordinance. In that decision, Judge Richard Posner wrote, "To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it."

The case is expected to be appealed to the Eighth Circuit Court of Appeals, which has jurisdiction over Missouri. In a statement, IDSA President Doug Lowenstein acknowledged the Seventh Circuit's decision and added, "We expect the same outcome here"—Judge Limbaugh's decision—and the ban on minors' access to violent video games—will be overturned.

Gail Markels, the IDSA's senior vice-president and general counsel, was up front about where, she thinks, Limbaugh got it wrong. "The judge erred by focusing on the medium rather than the content," she said. "Games are protected speech. They tell stories, contain dialogue, and are as complex as movies and plays."

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