First Amendment Score: Gamers 10, Censors 0

Published January 1, 2007

When are state and local lawmakers going to stop wasting taxpayer dollars with unnecessary regulatory enactments and fruitless lawsuits aimed at censoring video games? I ask because in November the video game industry added yet another slam dunk victory to its growing string of impressive First Amendment wins.

For those of you keeping track at home, this brings the tally to 10 major court wins for the video game industry versus none for would-be government regulators. With a track record like that, you would think government officials would get the point. But the censorial tendencies of public officials have once again trumped common sense.

November’s win came in the 7th Circuit Court of Appeals in the case of Entertainment Software Association v. Blagojevich. The case dealt with an Illinois statute, spearheaded by Gov. Rod Blagojevich (D), that would have required video game retailers to affix a four-square-inch sticker with the numerals “18” on any “sexually explicit” game. It also would have imposed criminal penalties on any retailer who sold or rented a game with that designation to a minor. The statute also included signage and brochure requirements that would have forced retailers to place certain displays in their stores and provide all customers with brochures about game ratings.

‘A Form of Expression’

The court’s decision overturning the law was written by Judge Ann Claire Williams, and it echoed what every previous decision on this front has held, namely:

  • Video game content is a form of expression deserving of the full protection of the First Amendment. Therefore, strict scrutiny is applied to a statute like the one Illinois passed, even though it was passed in the name of protecting children.
  • The statute in question here was not narrowly tailored and did not represent the “least restrictive alternative” available to serve the interest of protecting children from potentially objectionable content. The court noted the industry’s voluntary ratings system works quite effectively and that if the state wanted to adopt a less-restrictive approach it could have simply “communicate[d] the good news … [through] a broad educational campaign.”
  • “The State must recognize that the question of a statute’s compliance with the First Amendment does not end once it is determined that the free speech rights of adults are unaffected.” “[C]hildren have First Amendment rights” and “history has shown the dangers of giving too much censorship power to the State over materials intended for young persons.”
  • Finally, and perhaps most unsurprisingly, the statute’s signage and brochure requirements were also ruled unconstitutional since they were tantamount to forced speech.

A Waste of Tax Dollars

Again, Illinois lawmakers should have known all this was coming. Each of the previous nine decisions dealing with the constitutionality of video game regulation had come to almost the exact same conclusion. And one of the very first cases actually went through this same 7th Circuit Court! But the state decided to go ahead and burn taxpayer money pursuing this case anyway.

How much money did Illinois waste? Well, in addition to whatever it cost for the state’s attorney general to pursue the legal action through the courts, the video game industry is entitled to somewhere in the neighborhood of $500,000 in compensation for its legal fees.

Let’s hope lawmakers stop playing games with the video game industry’s First Amendment rights.

Adam Thierer ([email protected]) is senior fellow and director of the Center for Digital Media Freedom at the Progress & Freedom Foundation.