August 29, 2006

In another victory for Jenner & Block’s video game industry clients, a Louisiana district court ruled last week that a state law that would have banned sales of violent video games to minors is a violation of free speech and cannot be enforced.

Earlier this year, the Firm had persuaded the court to issue a temporary restraining order against enforcement of the law, which was set to criminalize the sale or rental of “violent” video games to minors and subject violators to prison terms and/or criminal fines of up to two thousand dollars.

In granting the Firm’s motion for a preliminary injunction, the court ruled that the law impermissibly regulated constitutionally protected free speech, and that “the fact that the Statute applies to video games that ‘depict violence’ makes no difference as a matter of First Amendment scrutiny.”

The court further ruled that the state’s purported interests in enforcing the law were “merely conjectural.”  The state had argued that the statute would prevent both physical and psychological harm to minors.  “The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it,” the court said in its ruling.

Moreover, the government may not limit minors’ exposure to creative works based on a general belief that they may be “psychologically harmful,” the opinion stated.  The court called the social science evidence submitted in connection with the law “sparse” and not “in any sense reliable.”

The court also agreed with the Firm’s argument that the statute is unconstitutionally vague, noting that the statute fails to provide specific definitions of prohibited conduct.  “Many of its terms, such as ‘morbid interest,’ have no clear meaning,” the court wrote in reviewing the law, and there is “no explanation of crucial terms such as ‘violence.’”  As a result, video game producers and retailers would be “forced to guess” at the meaning of the statute.

Since 2003, the Firm has successfully challenged similar laws in California, Illinois, Michigan, Minnesota and Washington state. 

Partners Paul M. Smith and Katherine A. Fallow and Associates Matthew S. Hellman, Duane Pozza and Elizabeth Valentina represented the Entertainment Software Association and Entertainment Merchants Association in this matter.

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