October 31, 2005

A recent California law that places criminal penalties on the sale or rental of so-called “violent” video games to minors violates the First Amendment rights of video game makers, retailers, and consumers, according to a Jenner & Block complaint and motion for preliminary injunction filed on behalf of several associations representing the video game industry.

The act, signed into law on October 7, imposes a fine of $1,000 upon anyone who sells or rents a video games deemed “violent” to a minor.  In addition, the law, which takes effect on January 1, 2006, requires that any distributor of games that are deemed “violent” must affix a two-inch by two-inch white sticker with “18” in black letters onto the game’s package cover.

The lawsuit, filed in the U.S. District Court for the Northern District of California, alleges that these provisions constitute content-based censorship.  The Firm in its court filings notes that multiple appellate and lower courts have “unequivocally held that the First Amendment protects the expression in video games.” And the Firm argues that depictions of violence are entitled to the full constitutional protections afforded other kinds of expression.  “That the Act restricts depictions of violence makes no difference as a matter of First Amendment scrutiny,” according to the Firm’s preliminary injunction.

The Firm further argues that the law is unsupported by a compelling state interest and is not narrowly tailored.  The lawsuit points out that one of the law’s purported purposes – protecting against “psychological and neurological” harm to minors – is not a compelling state interest.  The Firm argues that the U.S. Supreme Court has repeatedly asserted that the First Amendment prohibits the government from restricting free expression based on what may be considered to have a possible provocative effect on an audience. 

“An effort by the State to censor speech in order to promote citizens’ well-being amounts to nothing more than improper thought control,” the Firm told the court.

Partners Paul M. Smith and Katherine A. Fallow and Associates Kathleen R. Hartnett, Amy L. Tenney and Duane Pozza filed the suit on behalf of plaintiffs Entertainment Software Association and Video Software Dealers Association.

Jenner & Block is representing the video game industry in challenges to similar state laws in Illinois and Michigan.  The Firm has successfully represented the video game industry to defeat similar legislative attempts to censor video games in Washington and Missouri.

Please click here to view the complaint.

Please click here to view the motion for preliminary injunction.