County video game ordinance overturned by appellate court
By MIKE ANTHONY
Video games are a protected form of free speech, a federal appellate court has ruled in declaring unconstitutional a St. Louis County ordinance designed to limit minors' access to violent or sexually explicit video games.
The ruling, handed down last week by a three-judge panel of the U.S. Court of Appeals for the 8th District, overturns a lower court ruling issued last year that declared video games were not a protected form of free speech under the First Amendment and found the county's ordinance constitutional.
County Counselor Patricia Redington was unavailable for comment before the Call's press deadline.
Though the video game ordinance, sponsored by former County Councilman Jeff Wagener, D-Oakville, was approved in October 2000, St. Louis County has stayed the enforcement of the measure pending the outcome of the legal challenge.
Under the ordinance, children under the age of 17 would be prohibited from purchasing or renting extremely violent or sexually explicit home video games at retail stores without parental consent. In addition, the county ordinance would require owners and managers of businesses that offer arcade games to separate those with graphic violence or strong sexual con-tent from the rest.
Less than two months after the ordinance was adopted, a federal lawsuit was filed by the Interactive Digital Software Association and other organizations that challenged the constitutionality of the measure.
The lawsuit alleged the county ordinance, "by creating criminal penalties for the distribution of video games based solely on their 'violent' content, violates the First Amendment, other provisions of the U.S. Constitution, and parallel provisions of the Missouri Constitution because it directly restricts, based on content, the dissemination and receipt of a considerable amount of fully protected expression, while imposing a chilling effect on a great deal more.''
The lawsuit contended that the county ordinance imposed impermissible restrictions on the expressive rights of video game creators as well as the rights of minors to receive protected speech.
Joining the IDSA as plaintiffs in the lawsuit were the Missouri Retailers Association, the Video Software Dealers Association, the Amusement and Machine Opera-tors Association, the American Amusement Machine Association, the Interactive Entertainment Merchants Association and several individual arcade game vendors.
Other groups filing briefs supporting the IDSA and its co-plaintiffs included the International Game Developers Association, ID Software Inc., the Media Coalition, the Thomas Jefferson Center for the Protection of Free Expression, the Free Expression Policy Project and the American Civil Liberties Union.
In an April 2002 opinion, U.S. District Court Judge Stephen Limbaugh ruled that the plaintiffs failed to meet the "burden'' of showing that video games are a protected form of speech under the First Amend-ment. Last week's decision by the U.S. Court of Appeals of the 8th District reverses the earlier decision and directs the district court to enter an injunction preventing the ordinance from going into effect.
In a news release, Interactive Digital Software Association President Doug Lowenstein hailed the federal appellate court ruling as a victory for freedom of speech.
"This decision is a total and unambiguous affirmation of our position that video games have the same constitutional status as a painting, a film, or a book. The decision sends a powerful signal to government at all levels that efforts to regulate consumers' access to the creative and expressive content found in video games will not be tolerated,'' Lowenstein stated.
The appellate court ruling states that if the First Amendment is versatile enough to shield the works of the paintings of Jackson Pollock, the music of Arnold Schoenberg or the works of Lewis Carroll, then "we see no reason why the pictures, graphic design, concept art, sounds, music, stories and narrative present in video games are not entitled to a similar protection.''
The ordinance adopted by the County Council stated that the county "has a compelling interest in protecting the physical and emotional health of children.''
In its ruling, the federal appellate court stated, "Before the county may constitutionally restrict the speech at issue here, the county must come forward with empirical support for its belief that 'violent' video games may cause psychological harm to minors. In this case ... the county has failed to present 'the substantial supporting evidence' of harm that is required before an ordinance that threatens protected speech can be upheld.''
Furthermore, the ruling stated, "The county's conclusion that there is a strong likelihood that minors who play violent video games will suffer a deleterious effect on their psychological health is simply unsupported on the record.''
The federal appellate court noted that a psychologist, Craig Anderson, had testified in support of the ordinance, citing a study he conducted that indicated playing violent video games "does in fact lead to aggressive behavior in the immediate situation ... that more aggressive thoughts are reported and there is frequently more aggressive behavior.''
The ruling stated, "But this vague generality falls far short of showing that video games are psychologically deleterious.''
Furthermore, the court found, "To accept the county's broadly-drawn interest as a compelling one would be to invite legislatures to undermine the First Amendment rights of minors willy-nilly under the guise of promoting parental authority.''
In the release, Lowenstein said that the Federal Trade Commission has found that parents are involved in the purchase and rental of video games 83 percent of the time.
"We've said from the start of this case that trying to turn retailers into surrogate parents is the wrong approach,'' he stated in the release. "Instead of wasting taxpayers' money in court, we hope that public officials in St. Louis County and elsewhere will take up our longstanding offer to work cooperatively to ensure that parents use the highly regarded Entertainment Software Rating Board video game rating system to make informed choices for their families.''