As GamePolitics and other news outlets have reported, the ESA is suing the Chicago Transit Authority over the agency's ban on M and AO-rated video ads.

Here are excerpts from the justification section of CTA Ordinace 008-147, the document at the heart of the ESA lawsuit:

WHEREAS... the Chicago Transit Board established advertising guidelines permitting certain advertising in or upon Chicago Transit Authority vehicles and facilities; and

 

WHEREAS, According to an August 2008 Chicago Sun Times article at least 36 Chicago public school students have been killed since September 2007; and

 

WHEREAS, There is a demonstrable correlation between intensely violent video or computer games and violent or aggressive behavior (see "Video Game Violence and Public Policy" by David Walsh, Ph.D. and "The Effects of Violent Video Game Habits on Adolescent Hostility, Aggressive Behaviors, and School Performance" by Gentile, Lynch, Linder and Walsh; and

 

WHEREAS, There is evidence that many of these violent video or computer games are marketed toward children under 17 years of age (see Federal Trade Commission study, September, 2000)...

The 2000 FTC report is, indeed, an indictment of video game industry marketing practices. On the other hand, the industry has made remarkable strides since then in restricting the access of minors to violent games.

In its May, 2008 report, the FTC found an 80% overall compliance rate in retail ratings enforcement, with top performer GameStop achieving a 94% compliance rate. Given that the CTA ordinance was passed in November, 2008, it's unclear why the 2000 data was used.

The full CTA ordinance may be found as "Exhibit 2" in the ESA's lawsuit. Click here for a copy of the 70-page PDF.

A spokeswoman for the Chicago Transit Authority has commented on the federal lawsuit filed against the agency's ban on M-rated video game ads yesterday by the Entertainment Software Association.

Kotaku reports:

Reached for comment... Wanda Taylor, a spokeswoman for the Chicago Transit Authority, told Kotaku that the authority has not yet been served with the suit but that they feels that the ordinance is defensible.

"The CTA does not allow advertising for alcohol or tobacco products and this ordinance is consistent with that long-standing policy," she said...

Taylor pointed out that they have a number of guidelines in place for determining if an advertisement can run on the CTA. The guidelines, she said, require ads to be truthful and not directed at inciting imminent lawless action. The ads cannot be legally obscene, sexually explicit, depict nudity or portray graphic violence nor can they incite lawless illegal action.

As GamePolitics reported yesterday, the Entertainment Software Association has filed suit against the Chicago Transit Authority. The video game publishers' lobbying group hopes to overturn the CTA's ban on ads for M and AO-rated games on its vehicles and facilities.

The Media Coalition, an association that defends the First Amendment rights of producers and consumers of First Amendment protected material, has issued a press release announcing its support for the ESA in the case. Executive Director David Horowitz commented on the situation:

Ex-[Illinois] Governor Blagojevich spent hundreds of thousands of dollars unsuccessfully to defend a law that barred minors from buy or renting similar video games before it was struck down as unconstitutional. The Chicago Transit Authority should repeal this ill-conceived ordinance rather than using scarce resources to fight this in court and get the same result.

The ESA, which represents U.S. video game publishers, is a Media Coalition member as is the Entertainment Merchants Association, which represents video game retailers.

The Entertainment Consumers Association, which represents the interests of gamers, is also a Media Coalition member.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

The Entertainment Software Association has filed a federal lawsuit against the Chicago Transit Authority, challenging a 2009 CTA ordinance which prohibits ads for games rated M (17+) or AO (18+) from appearing on its vehicles and facilities. 

GamePolitics readers may recall that in April, 2008 the CTA ordered ads for Grand Theft Auto IV removed from buses even before the game was released. The CTA action followed local news coverage of a rash of shootings in Chicago.

Shortly thereafter, GTA IV publisher Take-Two Interactive sued the CTA, charging that the agency had broken a $300,000 contract for the campaign. The parties settled the case later in 2008, with the CTA granting T2 a six-week GTA IV ad run. However, CTA officials moved to block future ads for M-rated games by passing the new ordinance, which took effect on January 1st and prompted today's legal action by the ESA.

ESA boss Mike Gallagher commented on the lawsuit in a press release: 

The CTA’s ordinance constitutes a clear violation of the constitutional rights of the entertainment software industry. Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment. The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.

The press release also explains some of the legal rationale behind the suit:

The ESA’s suit contends this new ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” In addition, the Complaint argues that the ordinance impermissibly discriminates on the basis of viewpoint and ignores less restrictive means of achieving the supposed ends of the ordinance.  

The ESA also stated that the CTA’s ordinance is unnecessary because game-related marketing is already subject to the Entertainment Software Rating Board’s Advertising Review Council (ARC), which strictly regulates computer and video game advertisements that are seen by the general public.  The Entertainment Software Rating Board (ESRB) assigns content ratings to computer and video games, which, in turn, are displayed on the advertisements for those games.

As GamePolitics has reported, the Massachusetts Bay Transit Authority has a similar ban on M-rated game ads, likening them to X-rated movies. It is unclear at this time whether the ESA will pursue a similar action against the MBTA.

While the lawsuit also encompasses AO-rated games, as a practical matter, such titles are virtually non-existent in the U.S. market.

DOCUMENT DUMP: Grab a copy of the lawsuit here (70-page PDF)...

Via press release, GamePolitics has learned that California State Sen. Leland Yee (D) will be joined by a pair of mental health organizations in filing an amicus curiae (friend of the Court) brief with the United States Supreme Court tomorrow in support of the state's petition to overturn a 9th Circuit Court ruling that California's 2005 violent video game law - drafted by Yee - is unconstitutional.

The official announcement will be made at 10:00 A.M. Pacific Time by Yee and representatives of the California Psychiatric and California Psychological Associations. Sen. Yee is a child psychologist by trade.

GamePolitics will have more - including a copy of the brief - in our Wednesday coverage.

A veteran First Amendment attorney has ripped California's 2005 violent video game statute along with Gov. Arnold Schwarzenegger, who signed the measure into law.

As GamePolitics has extensively reported, in May California petitioned the U.S. Supreme Court to review lower court rulings which held that the measure is unconstitutional. The Court is expected to announce its decision in the fall.

Broadcasting & Cable reports on criticisms of the California law penned by Robert Corn-Revere (left):

In 2009, the killer cyborg turned governor has materialized in the present from the past in a plot to undermine the First Amendment.

In seeking review, California is asking the Supreme Court to reverse 60 years of First Amendment jurisprudence and to hold that 'excessively violent' material-whatever that may be-'deserves no constitutional protection.' It is also asking the Court to relieve government from actually having to demonstrate the purported harmfulness of speech it seeks to regulate, but instead to defer to "reasonable inferences" and legislative judgments.

If California is successful, it will open the door to regulate not just video games, but a wide range of speech that is currently protected under the First Amendment.

Over at GameTopius, paralegal-in-training Nikhil Baliga (who also has degrees in Political Science and Psychology) serves up a look at First Amendment issues as they relate to games.

While Baliga does a nice job of tracing some of the major case law, the article's main points could be stated with more clarity. This paragraph, for example, seems to imply that video games are not necessarily constitutionally-protected speech (they are):

What well intentioned, but usually ill informed, video game advocates often assume is that video games are constitutionally protected free speech. While there can be no doubt that video games are speech, the Supreme Court has stated that not all speech is constitutionally protected.

Later, Baliga explains that this is a reference to video games which might be considered legally obscene under the so-called Miller Test. The fact is, however, that the likelihood of that happening in the U.S. market, given the ESRB rating system, console licensing requirements and screening by major retailers, is roughly nil.

While there could be a non-commercial game or import (say, RapeLay) that might - might - meet the Miller obscenity standard, implying that commercial video games are not protected speech is roughly akin to saying that Hollywood movies aren't necessarily protected speech because there are also kiddie porn films.

Still in all, worth a read.

GP: Readers should note that Baliga is not a lawyer and neither is GP. So, take both opinions with the appropriate grain of salt.

The conservative Eagle Forum has filed an amicus (friend of the Court) brief with the United States Supreme Court in support of California's 2005 violent video game law.

As GamePolitics reported last month, California Attorney General Jerry Brown petitioned the High Court to review a U.S. District Court ruling that the state's 2005 law blocking the sale of violent games to minors is unconstitutional. A three-judge panel of the 9th Circuit Court upheld the District Court decision in a February ruling.

The family values group, founded by conservative Phyllis Schlafly (left) in 1967, filed the brief on Monday. The document was authored by Andrew Schlafly, son of Phyllis and founder of Conservapedia (sort of the anti-Wikipedia). In the amicus brief, the Eagle Forum lays an array of societal problems at the feet of violent video games: bad grades, violent behavior, poor graduation rates, school shootings, game addiction and even sudden death.

We'll let the Eagle Forum's laundry list speak for itself (with a little help from GP's trusty red pen):

The First Amendment does not render our nation’s youth defenseless against the predatory, billion-dollar video game industry that churns out increasingly graphic blood and gore for impressionable minds to imbibe...

 

The corruption of our nation’s youth with increasingly deviant video games is a matter of national importance. Our nation’s youth is in crisis, by any measure. A calamitous 30% of our nation’s youth fail to graduate from public high school, and only 32% of those who attend public high school are ever qualified to attend a four-year college...

 

A substantial percentage of teenagers are hooked on these disturbing video games, and spend many hours each week playing them. Moreover, mass killings perpetrated by youngsters are frequently linked to addiction to violent video games...

 

The First Amendment does not forbid state legislatures from keeping this harmful material from children. The California legislature, not known to be conservative, protected its youth against the predatory video game industry. It was an error with national implications for the Ninth Circuit to invalidate the California statute...

Violent video games hurt children in two ways. Their increasingly realistic and disturbing images burn into children’s impressionable minds much as pornography does, and the role-playing inherent in a video game causes the child to buy into the rampages of murder and other heinous crimes that he is acting out...

 

The early market leader in video games was Nintendo, which adopted a policy against “excessive blood and violence,” but it was trounced in sales by a 3 to 1 margin by more gory material produced by Sega, and Nintendo learned the message that “violence sells video games to children...”

 

Numerous studies confirm the obvious: violent video games do cause addiction and harm... There has never been a full First Amendment right to flash highly objectionable and disturbing images specifically at children, or to entice them to participate in destructive role-playing behavior...

Displaying a shocking image to a child is conceptually identical to the utterance of “fighting words” to an adult, which this Court famously held to be out-side of First Amendment protection...

The stress attributed to violent video games can even be physically harmful. Eighteen-year-old Peter Burkowski, an avid video gamer, collapsed and died of a heart attack while playing games in an arcade...

 

Children who play violent video games have difficulty obeying authorities, treating peers properly, and succeeding in school...

DOCUMENT DUMP: Grab a copy of the Eagle Forum's amicus brief here.

Eurogamer caught up with Take-Two Interactive CEO Ben Feder for a wide-ranging interview which is now available on the site.

While much of the conversation deals with various T2 games, Feder did touch upon the Manhunt 2 controversy and the notion of government censorship of games:

We firmly believe that games are art. A), we have the right to produce art. B), the consumer should have the right to make their own choices, providing the labelling on the package is clear about the content of the game.

Apart from that, I don't think it's the role of governments to determine what you or any of your readers can, or should, buy. They should be able to make their own choices. Government has no role in that at all...

Asked whether the interactive nature of games requires them to be viewed apart from, say, movies, Feder said:

It's not a difference with distinction... It's as if to say art as a painting is different than art as a sculpture. For sure they're different art forms and they use different mediums, but they're art nonetheless - they're forms of expression.

That, at least in the United States, is something that's guaranteed by the constitution, and in democracies in Western Europe there are very similar concepts about the ability for individuals to express themselves. If you stifle that, then society and the economy pay a pretty heavy toll.

Of particular interest given the ongoing RapeLay controversy, Feder was asked whether T2 might theoretically permit edgy developer Rockstar to create a game featuring sexual violence or abuse of children, Feder commented:

Look, I suppose there's a line somewhere. I don't think we've even come close to it. At the end of the day, we're also a commercial enterprise and we do intend to turn a profit with our games. That, in and of itself, provides a certain boundary beyond which we won't go.

I suppose there are more lines [beyond] which we'd be uncomfortable, but I don't think any of our games in the past, or any of our games that I've seen in development, come even close to that.

Now that California has asked the U.S. Supreme Court to consider whether its 2005 violent video game law is constitutional, President Obama's recent nomination of Judge Sonia Sotomayor to the Court takes on added significance for the video game industry.

That being the case, where does Sotomayor stand on free speech issues? Her record appears to be  mixed, according to a source with knowledge of the legal issues involved in the California appeal.

On the plus side for the video game industry, Sotomayor dissented from a majority of her colleagues on the 2nd U.S. Circuit Court in Pappas v. Giuliani. In her dissent, Sotomayor wrote that an NYPD officer should not have been fired for responding, off-duty, to an e-mail request for a charitable donation with a racist and bigoted language. As SCOTUSblog reports:

She acknowledged that the speech was 'patently offensive, hateful, and insulting,' but cautioned the majority against 'gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.'

On the other hand, Fordham Prof. Paul Levinson - who has argued free speech issues with Jack Thompson - writes that Sotomayor should be disqualified from the High Court over a what he calls a "bad 1st Amendment Decision."

In the case, Doninger v. Niehoff, Sotomayor and her 2nd Circuit colleagues supported high school officials who barred a student from holding class office after the young lady referred to school officials as "douchebags" in an off-campus blog. While the courts have traditionally given school officials some degree of leeway in maintaining order, Levinson remains concerned about Sotomayor:

[Retiring Justice] David Souter was a surprise to the Republicans who appointed him... His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.

We cannot afford or risk a Souter in reverse with this new appointment - a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

Meanwhile, the California appeal has been docketed by the Supreme Court. The video game industry has until June 22nd to submit its response to California's petition.

UPDATE: Paul Smith of Jenner Block, who has been the video game industry's lead attorney in challenging video game legislation over the years, discusses the cases mentioned here on Talk Radio News and describes Sotomayor as:

She's a careful person who could go either way, but is focused on not just broad doctrine but how the doctrine applies to particular factual situations. Certainly that's true in the First Amendment free speech area.

The Media Coalition, a free speech defense trade group has criticized California's Supreme Court appeal of a lower court decision striking down its violent video game law as unconstitutional.

Media Coalition Executive Director David Horowitz said in a statement:

We are very disappointed that the California Governor and Attorney General have decided to spend the state’s scarce resources to ask the Supreme Court to carve out a new exception to the First Amendment.

 

The Ninth Circuit Court of Appeals earlier declined the state’s invitation to create a new class of speech outside of the First Amendment. This is settled law. In recent years, in addition to California, similar laws in Indianapolis, Michigan, Illinois, St. Louis County, Minnesota, and Washington attempted to ban video games with certain violent content were uniformly found unconstitutional.

Media Coalition members include video game industry trade groups the Entertainment Software Association (game publishers) and Entertainment Merchants Association* (game retailers). It was these two entities which originally brought suit against the California law in 2005.

The Entertainment Consumers Association is also a Media Coalition member.

* Prior to its 2006 merger with the Interactive Entertainment Merchants Association, the Entertainment Merchants Association was known as the Video Software Dealers Association, and the California case continues as VSDA v. Schwarzenegger.

FULL DISCLOSURE DEPT: The ECA is the parent company of GamePolitics.

With the pending retirement of Justice David Souter from the U.S. Supreme Court, President Barack Obama will have the opportunity to name a replacement.

His choice could have a major impact on the constitutional issues relating to video games, especially if California Gov. Arnold Schwarzenegger decides to ask SCOTUS to consider February's 9th Circuit Court ruling that his state's 2005 video game law is unconstitutional. That decision from Schwarzenegger will come later this month.

Among names being floated for Souter's seat are Gov. Jennifer Granholm (left) of Michigan and 7th Circuit Court Judge Diane Pamela Wood (right). Both have a track record with video game issues.

As Governor, Granholm signed into law a 2005 video game blocking minors from purchasing violent games. The video game industry filed suit and the measure was ruled unconstitutional later that year by a U.S. District Court judge.

For her part, Judge Wood has a rather different history with games. In 2001 she was part of a three-judge Circuit Court panel which overturned an Indianapolis law that sought to limit the access of minors to violent arcade games. That case, AAMA v. Kendrick was the first of what has become an uninterrupted string of court victories in such cases for the video game industry.

Whether Obama appoints Wood, Granholm or another choice, this could be the year that the constitutionality of restricting violent video game sales makes it to the Supreme Court. The possibilities become even more interesting given conservative Justice Antonin Scalia's 2008 comment that such restrictions might pass constitutional muster.

DOCUMENT DUMP: AAMA v. Kendrick

Although Judith Krug's name may not be a familiar one to gamers, she was well-known - and highly-regarded - by those on the front lines of the battle against censorship of games and other forms of media.

Krug, 69, who died on Saturday, is best known as the founder of Banned Books Week. The annual event celebrates the freedom to choose what one reads. She was the Executive Director of the Freedom to Read Foundation and Director of the Office for Intellectual Freedom of the American Library Association.

Jennifer Mercurio, VP and General Counsel of the Entertainment Consumers Association, commented on Krug's passing:

Judith was instrumental in pushing for First Amendment issues being broadened to include video games.

Sean Bersell, VP of Public Affairs for the Entertainment Merchants Association, added:

Judith was instrumental in the fight against video game censorship. She was a forceful advocate for Media Coalition amicus briefs in the Indianapolis, St. Louis, Illinois, Minnesota, and California video game cases. It would have been easy for the librarians to say, "That's not our battle," but thankfully that wasn't Judith's temperament.
 
Judith was a fierce believer in the importance of freedom of expression to our culture and our society and was zealous defender of the First Amendment. We all have truly benefited from her passion.

The American Library Association has posted a tribute to Krug.
 

Utah Gov. Jon Huntsman is now considering whether to sign into law HB 353, the Jack Thompson-conceived video game and movie bill. The Guv has until approximately April 1st to make that decision. In the meantime, the National Coalition Against Censorship, among others, has urged Huntsman to veto the measure.

Along that line, GamePolitics readers may recall that last month, when HB 353 was introduced into the Utah House by Rep. Mike Morley (R), we asked Prof. Clay Calvert, Co-Director of the Pennsylvania Center for the First Amendment at Penn State, to offer his view of the original text of the bill.

Since that time, HB 353 has been substantially amended along the way to passage by the Utah legislature. That being the case, earlier this week we asked Prof. Calvert to revisit the final version of the bill. If you'd like to refer to the subsections mentioned by Prof. Calvert, you'll find them by hitting the jump.

Prof. Calvert's analysis follows:

The [safe harbor] defense provision of [HB 353] (g)(i)(A) not only is vague (what constitutes a documented training program? What is required by Utah to count as such a program?  With whom must it be documented?  Utah?), but it actually is quite burdensome because it only works if a store affirmatively adopts such a training program.  

The defense provision of (g)(i)(B) is helpful to stores because it prevents liability in the case where a minor engages in fraud to purchase a game by using a fake ID. That's a positive step in this revised legislation (which is NOT to say the legislation itself is positive).

One major concern is turning what the bill specifically identifies as a "recommendation" into a mandatory command. The recommendation is made by a private party (presumably the ESRB) and the government now is employing it with the force of law.

 

The National Coalition Against Censorship makes a great point when it states that this bill, "by incorporating the private voluntary ratings system... constitutes an unlawful delegation of legislative authority to a non-governmental entity."

In particular, there is significant legal precedent for this point in the context of violent video game statutes.  In July 2006, a federal district court in Minnesota in the case of Entertainment Software Association v. Hatch... issued an injunction prohibiting that state from enforcing a law that fined those minors under 17 years of age for renting or purchasing video games rated AO or M by the ESRB...

 

A second major concern is that section (u)(ii) simply applies if one "provides that good or service to a buyer subject to the age restriction or recommendation." The law could be improved if it applied to one who "provides that good or service to buyer knowing the age restriction or recommendation on the good or service AND knowing that the buyer is under the age of the restriction or recommendation." 

The American Civil Liberties Union has intervened after a middle school library in Ohio removed the November, 2008 issue of Nintendo Power.

The issue, which features a gun-toting female character from Grand Theft Auto: Chinatown Wars, was taken out of circulation at the Roxboro Middle School Library at the direction of Principal Brian Sharosky, according to the Cleveland Plain Dealer.

However, ACLU of Ohio executive director Christine Link argued that the magazine should not have been banned from the library:

Literature should not be removed from a school library simply because one person may find it inappropriate... [the school board should] immediately order that the magazine be reinstated.

Despite Link's argument, the Cleveland Heights-University Heights School Board has backed the principal's decision to remove Nintendo Power #234. With legal action on the matter increasingly likely, legal director Jeff Gamso offered the ACLU's position:

The principal doesn't get to say, 'Whatever I say goes.' There's got to be some mechanism by which decisions are made and a process of review. Or maybe tomorrow it'll be ' "Hamlet" -- that's an iffy play.'

UPDATE: Liz Surette of GamesLaw has provided a legal analysis of the issues in this case:

This situation is almost exactly like a case called Board of Education v. Pico, in which parents petitioned the school board to remove specific books that were “improper fare for school students” or “just plain filthy”.

The Supreme Court held that once a publication is in a school library, it may not be removed just because it is thought objectionable. The school board may decide which books and periodicals to purchase, but once they are made available on the shelves the children have a right to access that information. If the removal was motivated by a desire to deny students access to ideas with which the school disagrees, then it is unconstitutional.

However, the Court also said that the First Amendment is not implicated if the materials are removed because they are "pervasively vulgar" or if the decision was "otherwise based solely upon the 'educational suitability' of the books". The key fight here will be whether the principal removed NP for partisan/political reasons. I could go into much more detail about the policy rationale behind Pico and tensions with later cases, but suffice it to say that based on precedent the ACLU would surely win if they could prove that the principal pulled the mag just because he found it offensive or disagreeable.

Joining those who have called upon Utah Gov. Jon Huntsman to veto HB 353 is the National Coalition Against Censorship.

A post on the NCAC website says that the Jack Thompson-conceived bill "takes a voluntary effort by manufacturers to provide consumers with information about their products and turns it into a mechanism to deprive minors of their First Amendment rights."

More from the NCAC:

This bill would hold retailers responsible for selling minors material labeled for mature audiences.  Sellers of books, movies, video games, and music could be penalized up to $2000 for “violating” age guidelines created voluntarily for informational purposes only.

This bill takes a voluntary effort by manufacturers to provide consumers with information about their products and turns it into a mechanism to deprive minors of their First Amendment rights.  By incorporating the private voluntary ratings system, it also constitutes an unlawful delegation of legislative authority to a non-governmental entity...

 

The bill may result in consumers getting less information.  Stores not willing to risk lawsuit or fines for violating age restrictions may simply decide not to display ratings information.  The industry as a whole could even consider dispensing with its voluntary rating system if the result is to make retailers vulnerable to lawsuits and judgments.

We urge Governor Huntsman to veto this problematic bill.

UPDATE: The NCAC has written a letter to Gov. Huntsman urging a veto of HB 353.

As GamePolitics reported on Friday, the 9th U.S. Circuit Court has upheld a lower court's ruling that California's 2005 video law is unconstitutional.

The Parents Television Council has now weighed in on the decision. The Los Angeles-based watchdog group criticized the 9th Circuit's ruling and called upon PTC members to support State Sen. Leland Yee's call for an appeal to the U.S. Supreme Court.

In a press release, PTC President Tim Winter (left) said:

Let’s be clear on what – exactly – is going on here: The video game industry has established a policy to ‘protect’ children from a harmful product, yet they file lawsuit after lawsuit to oppose any enforcement of that same policy... The only motivation for the industry to sue is to keep collecting blood money from kids who aren’t supposed to be able to buy these games without their parents present at the time of purchase.

There are very responsible retailers out there – Wal-Mart and Game Stop come to mind – who take their obligation not to sell these games to kids very seriously.  Yet industry representatives claim this law is unfairly biased against them... If the industry actually followed its own rules, then this law would have absolutely no financial impact... 

Shockingly, the Court’s ruling claims that there isn’t enough research to support that children are affected by video game violence.  Yet countless independent studies confirm what most parents instinctively know to be true: repeated exposure to graphic sexual, violent and profanity-laced video games has a harmful and long-term effect on children...
This federal court decision is a disgrace and should be of great concern to all parents – not just in California but across our nation.  We applaud State Sen. Yee’s efforts to see that this decision goes to the U.S. Supreme Court...

As GamePolitics reported on Friday, a three-judge panel of the U.S. 9th Circuit Court has upheld a lower court's ruling that California's 2005 video game law is unconstitutional.

The decision in the case was written by Judge Consuelo Callahan (left). As we have previously reported, Judge Callahan is known as The Dancin' Queen of the Ninth Circuit:

A hoofer with a sense of humor, Callahan likes to surprise judicial and legal gatherings by starting discussions about serious topics and ending with a quip about appellate judges who tap dance around issues. She then pulls off her black robe to reveal a sequined costume and tap shoes.

She's been known to hop on a tabletop or in one case on a judicial bench during these special events and do some pretty impressive steps...

Hoofer or not, Judge Callahan reiterated the constitutional issues raised by other federal courts where restrictions on video game content are concerned:

The government may not restrict speech in order to control a minor's thoughts...

The [U.S.] Supreme Court has carefully limited obscenity to sexual content. We decline the state's invitation to apply the (same) rationale to materials depicting violence.

DOCUMENT DUMP: Grab a copy of Judge Callahan's ruling here.

Is California's violent video game law headed to the U.S. Supreme Court?

State Sen. Leland Yee (D) thinks it should be. Yee has urged California Attorney General Jerry Brown to appeal today's 9th Circuit Court decision which upheld a lower court's ruling that the video game law he authored in 2005 is unconstitutional.

Yee, a child psychologist, released this statement: 

While I am deeply disappointed in today’s ruling, we should not stop our efforts to assist parents in keeping these harmful video games out of the hands of children.  I believe this law will inevitably be upheld as Constitutional by the US Supreme Court.  In fact, the high court recently agreed, in Roper v. Simmons (2005), that we need to treat children differently in the eyes of the law due to brain development.

 

The 9th Circuit Court has affirmed a U.S. District Court decision which struck down California's 2005 violent video game law.

As GamePolitics reported last November, a three-judge panel of the 9th Circuit heard the state's appeal in Sacramento. In upholding the District Court's 2007 ruling, the 9th Circuit rejected several research studies presented by the states as failing to demonstrate a causal link between violent video game play and negative behavior:

Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology.

The Court also rejected as unconstitutional a section of the law requiring retailers to label violent games with a four-inch square label with "18" printed on it.

Reactions to the ruling are beginning to come in. Jennifer Mercurio, Director of Government Affairs for the Entertainment Consumers Association, said:

We couldn’t be happier. Federal courts have found all nine legislative attempts to curtail the sale of violent video games invalid under the First Amendment, definitively showing that video games are protected speech, just like other content such as books, comic books, movies and music.

Bo Andersen, CEO of game retailers' group the Entertainment Merchants Association, said:

Retailers are committed to assisting parents in assuring that children do not purchase games that are not appropriate for their age. Independent surveys show that retailers are doing a very good job in this area, with an 80% enforcement rate, and retailers will continue to work to increase enforcement rates even further. The court has correctly noted that the state cannot simply dismiss these efforts.

I understand that some government officials will push for the state to ask the U.S. Supreme Court to review this decision. The state should not acquiesce in this demand, particularly in light of its budget difficulties. The state has already wasted too many tax dollars, at least $283,000 at last count, on this ill-advised, and ultimately doomed, attempt at state-sponsored nannyism.

ESA CEO Mike Gallagher called the ruling "a win for California's citizens."

With the 9th Circuit's rejection of the California video game law, the question now becomes whether Gov. Schwarzenegger will appeal the ruling to the U.S. Supreme Court.

FULL DISCLOSURE DEPT: The Entertainment Consumers Association is the parent company of GamePolitics.

As GamePolitics readers know, a Utah state legislator has introduced a Jack Thompson-crafted bill that would place retailers at risk of false advertising penalties if they fail to enforce content ratings for video games, DVDs and movie tickets.

While Thompson claims that the measure, H.B. 353, "raises absolutely no First Amendment issues," we asked Clay Calvert, Co-Director of the Pennsylvania Center for the First Amendment at Penn State to review the bill and offer an opinion.

After studying H.B. 353, Calvert pronounced it "fatally flawed," although not on the free speech issues. Instead, Calvert said that a lack of intent by retailers to sell games to minors essentially cancels out any false advertising claim.

This seems to be a backdoor attempt to use the ESRB’s voluntary rating system against sellers and distributors, assuming that some sellers and distributors actually do “advertise” that they don’t sell these games to a person “under the age restriction or recommendation”

The most obvious flaw with this legislation is that it conflates actual advertising (subsection i) with subsequent conduct (subsection ii) in order to create the offense.  In addition, it lacks a key scienter (state of mind requirement) regarding intent to sell.  Without this intent requirement, the measure is fatally flawed.
   
For instance, the current version of the Utah law on truth in advertising has another section that targets a person who “advertises goods or services or the price of goods and services with intent not to sell them as advertised.”  It also has a section that targets a person who “advertises goods or services with intent not to supply a reasonable expectable public demand.”  Both of these provisions include the critical intent requirement.  

Not to help out Jack Thompson or his legislative tool, but the provision could be more carefully crafted to target a person who “advertises that he will not sell a good or service labeled with an age restriction or recommendation to a person under the age restriction or recommendation but who in fact intends to sell such a good or service to a person under the age restriction or recommendation.”

 

Now let’s see if they make this change!

So, the bill is flawed in a legal sense, as opposed to a constitutional sense?

Yes. 

 

False and misleading advertising is not protected by the First Amendment. On the other hand, advertising that is truthful and that pertains to a lawful product [like video games] or lawful service is protected by the First Amendment, although it still may be regulated if the government can prove that it has a substantial interest that is directly advanced or served by that regulation.

I find it highly unlikely anyone would intentionally say that they won't sell certain rated games to minors knowing that they will, in fact, sell them those games.

UPDATE: (adding a clarification)

GP: I'd like to clarify a point. The way the bill is crafted now, you maintain that it is flawed because the video game retailer has no intent to defraud.

So, if Utah added the intent to defraud to the bill's language, the statute would be technically legal. But from a practical standpoint it would be an almost impossible case to bring forward, since the retailers' efforts not to sell to minors are pretty clear evidence that they want to abide by ESRB and do not have an intent to defraud. Is this correct?

Calvert: Exactly. If some teenage clerk accidentally and unintentionally forget to check an ID and sold a game to a minor, that would not be punishable as long as the intent of the store owner (or whoever actually "advertises") had no intent for such an incident to happen and instructed employees not to sell to minors.

UPDATE 2: Thompson has forwarded comments. Hit the jump to read his response.

It's only January, but Illinois Rep. Robert Pritchard (R) already seems like a lock for Clueless Politician of the Year.

Pritchard, who absolved guns and instead blamed violent video games for last February's shooting rampage at Northern Illinois University, has outdone himself by attempting to amend a video game content law which was declared unconstitutional by a federal judge more than three years ago (i.e. - it no longer exists).

For an ironic humor bonus, the defunct law which Pritchard seeks to amend was originally pushed through by ex-Gov. Rod Blagojevich (D), who was ousted today by the Illinois State Senate for corruption in office.

Longtime GamePolitics readers will recall that Blagojevich spearheaded his state's ill-fated attempt to legislate video game content. The big-haired Guv signed the game bill into law in July, 2005, only to have it ruled unconstitutional by U.S. District Court Judge Matthew Kennelly in December of that year.

No one has given much thought to the Illinois game law since then - except, apparently, for Rep. Pritchard, who inexplicably sought to amend the Blago bill yesterday. Pritchard submitted language designed to shield minors from sexually explicit video games. From Pritchard's amendment:

Provides that the exhibition to or depiction to a minor of a sexually explicit video game is a petty offense in which a $1,000 fine may be imposed.

Nice sentiment, but embarrassingly bad execution.

The New York legislature has a fondness for video game legislation, it would seem.

Last year New York became the first state since 2006 to pass a video game bill and have it signed into law by its Governor. The New York video game statute lacks teeth, however, and the video game industry has not opposed it.

As GamePolitics reported earlier this month, Assemblyman Keith L.T. Wright (D) introduced a bill aimed at shielding minors from games containing profanity and racist stereotypes.

In addition, Assemblyman Brian Kolb (R) has submitted A2837, which seeks to block minors from any game that "glamorizes... the commission of a violent crime, suicide, sodomy, rape, incest, bestiality, or sado-masochism..."

Kolb's bill also requires warning labels on such games; violators would be subject to both civil and criminal penalties. Fines of $1,000 are spelled out in the bill.

But Kolb isn't finished - not by a long shot. Retailers would be required to keep such games either in an area "inaccessible by the general public"  or "in a sealed and locked container."

Retailers would also be mandated to make copies of the offending games available for examination by parents.

A similar measure proposed by Kolb in 2007 failed to move out of committee.

GP: While Assemblyman Kolb no doubt has good intentions, his legislation clearly has constitutional issues. For example, deciding whether a game "glamorizes" any of the activities enumerated by Kolb would seem to be a highly subjective endeavor.

The Entertainment Software Association spent a record amount on lobbying in 2008, according to a report by Gamasutra.

The trade organization, which represents the interests of U.S. video game publishers, spent $4,244,364 for the year, including $1,135,500 in the fourth quarter. That's roughly a 25% increase over 2007. So what issues was the ESA focused on? Gamasutra reports:

The ESA's filing cites activity in both chambers of Congress on broadband deployment, online gaming governance and immigration issues, and throughout Washington at the U.S. Trade Representative, Department of State, National Security Council Patent & Trademark Office and other agencies on trade regulation, anti-piracy and patent modernization.

Filings for the three firms retained by the ESA—Smith-Free Group, Jenner & Block, and Telemedia Policy Group—reveal that their efforts were focused almost exclusively on Congress towards matters concerning the regulation of games themselves and perception towards ESRB ratings.

Another filing reveals that the ESA added the services of the Monumental Policy Group -- whose existing clientele includes Microsoft, IBM and Sybase. Monumental's quarterly disclosure filing shows the firm lobbied Congress and U.S. Customs and Border Protection on trade and copyright matters.

The immigration issues mentioned by Gamasutra refer to the topic of H-1B visas for highly skilled foreign workers. A document obtained by GamePolitics doesn't specify which side of the issue the ESA was lobbying, but it's safe to assume they are in favor of H-1Bs.

South Carolina State Senator Robert Ford (D) has introduced a bill that, essentially, seeks to outlaw profanity.

S.56 would prohibit the public utterance or publication of printed material containing profanity. It would also make it illegal to "exhibit or otherwise make available material containing words, language, or actions of a profane, vulgar, lewd, lascivious, or indecent nature."

On the video game front, presumably, this might encompass the F-bombs included not only in Grand Theft Auto IV's dialogue but in Band of Brothers: Hell's Highway and various other M-rated games. Movies, books, websites, magazines, music and cable TV, of course, would also be threatened.

The proposal would make the dissemination of such profanity a felony, punishable by five years in jail or a $5,000 fine. Or both.

Via: Slashdot

The Media Coalition, a free speech defense trade group which numbers the Entertainment Software Association (game publishers) and Entertainment Merchants Association (game retailers) among its members, has a new chair.

As reported by Video Business, First Amendment scholar and author Chris Finan (left) will succeed the EMA's Sean Bersell at the reigns. Of the transition, Bersell commented:

I am extremely pleased that Chris Finan, who is incredibly knowledgeable about free speech issues and well respected, is assuming the chair of Media Coalition. The leadership and credibility he brings to our efforts will enhance our ability to counter government censorship of publications and entertainment.

Speaking about his new assignment, Finan said:

Media Coalition plays a critical role in protecting what the American people can see, read and hear.

Insomniac CEO Ted Price has weighed in on video game legislation in an interview with Shacknews:

I think video game legislation has no place in America. It saddens me to see legislators stomping all over our First Amendment rights for their own specific interests.

 

We're going through what every other entertainment industry has gone through, and that's being the temporary scapegoat for society's ills. I think that we as an industry do a fantastic job of policing ourselves, we have one of the most effective, if not the most effective rating system in any entertainment industry right now.

 

It won't be until we have more gamers running for office that this will calm down. It's something that we'll weather, because we are right, what we do is defensible under the Constitution and shouldn't be regulated by the government.

As GamePolitics has reported previously, in 2006 Price filed affidavits with federal courts which were considering video game laws in Louisiana and Minnesota.

The well-known developer recommends that gamers contact their elected officials to express their feelings on video game legislation.

The Entertainment Software Association made a bit of a splash yesterday with news that the state of California had forked over $282,794 to the game publishers' lobbying group.

The money represents legal fees incurred by the video game industry while fighting California's 2005 video game law in U.S. District court. Judge Ronald Whyte ruled the statute unconstitutional in August of 2007.

However, as GamePolitics has reported, California Gov. Arnold Schwarzenegger (left) appealed Judge Whyte's decision to the U.S. Ninth Circuit Court earlier this year. While it is unlikely that the state will prevail in its effort to keep the video game law on the books, if it does pull an upset, the ESA is required to return the money.

The details of this arrangement are spelled out in a November, 2007 agreement between the ESA and the state, which says, in part:

If, after all appeals have been exhausted or the time for all remaining appeals has expired, plaintiffs [the video game industry] are no longer the prevailing party in this case, the plaintiffs shall pay back the amount stipulated in paragraph 1 within thirty (30) days of the disposition of the final appeal or the expiration of time for all remaining appeals.

It's also interesting to note that the amount paid to the ESA by California was subject to some negotiation. As GamePolitics reported last September, the ESA initially sought $324,840.

Grab a copy of the settlement agreement here.

In a terrific roundup, Winda Benedetti, MSNBC's Citizen Gamer, surveys some of the more controversial independent game offerings and asks whether such games are an appropriate medium for sensitive topics.

Among other titles, Benedetti looks at Danny Ledonne's Super Columbine Massacre RPG (left), The Torture Game 2, Wafaa Bilal's Virtual Jihadi, Operation Pedopriest, and Harpooned. There are, of course, critics:

"You don’t gain appreciation for the [Columbine] tragedy by repeating it and participating in a recreation yourself and taking the role of murderers,” says Tim Winter, president of the Parents Television Council, in an interview for a documentary film Ledonne recently completed about his experiences making the game, and the aftermath.

“This is totally immoral and should be banned to everyone, especially younger teenagers,” wrote a reader calling herself Ms. Johnson in response to my recent column about “The Torture Game 2,”  a controversial Web game that allows players to torture a man-like person tied up with ropes.

David Kociemba, an art prof at Emerson College who appears in Ledonne's film, says:

The controversy should be that there aren’t more games like ‘Super Columbine Massacre RPG!’ that are as demanding and as artistically innovative... Why is it permitted for Michael Moore in 2002, to make ‘Bowling For Columbine’ — a film essay on this subject — and to use far more graphic footage than Danny Ledonne does three years later in a primitive low-res video game? Are we really going to say that video game designers are the one set of artists that do not have the right to engage in contemporary political issues?

The ESA, which represents North American video game publishers, has released its 2008 Annual Report.

Ben Kuchera of Ars Technica provides a nice summary of the business and legislative highlights.

In reading the ESA report, we were most struck by the sheer volume of legislative efforts directed at video games on both the state and federal level. Many of these we were aware of and reported on here at GamePolitics. A few others flew under the media radar. Here's the state list:

• Colorado: The ESA persuaded the Denver transit company not to ban M-rated game ads on buses
• Connecticut: tax incentives were approved for video game production
• Delaware: legislation directed at point-of-sale died in committee
• Florida: approved financial incentives for game development
• Indiana: game legislation died in committee
• Massachusetts: game legislation is stalled in committee
• Mississippi: game legislation died in committee
• Missouri: game legislation died in committee
• New Jersey: game legislation died in committee
• New York: 2007 bills passed Assembly & Senate, but a joint version was not finalized (in 2008, however, NY adopted a less restrictive video game law)
• New Mexico: "No Child Left Inside" act would have levied a 1% tax on games but failed to pass
• North Carolina: video game legislation carried over into 2008 session
• North Carolina: tax incentive bill introduced (but recently defeated)
• Oklahoma: bill requiring written notice to buyers that games contain violent content carried over to 2008 session
• Oregon: video game legislation stuck in committee
• Puerto Rico: video game legislation carried over into 2008 session
• Puerto Rico: tax on games to fund recreation programs stuck in committee
• Tennessee: legislation introduced to study effects of violent media
• Texas: tax incentives passed for game devs (although ESA report fails to mention content restrictions on such funding)
• Utah: video game legislation died in committee as did a resolution urging the state A.G. to file amicus briefs in other states where the game biz was challenging legislation
• Wisconsin: a 1% game tax is under consideration

On the federal level, the ESA cites four bills introduced in both the House and Senate. Also mentioned are the Annual Video Game Report Card issued in Washington, D.C. by the National Institute on Media and the Family as well as presidential candidate Mitt Romney's "ocean of filth" TV spot decrying mature content in games.

The ESA also recounts a number of parental awareness partnerships forged by the ESRB with state elected officials.