April 17, 2006

Jenner & Block recently obtained another victory for its video game industry clients when a federal district court struck down on constitutional grounds a Michigan law designed to prohibit the sale or distribution of video games deemed too violent for minors. 

In granting the Firm’s motion for summary judgment, the court ruled that video games are constitutionally protected free speech under the First Amendment.  The state had argued that the “unique” interactive aspect of video games should be excepted from that protection because it is “harmful to minors.”  Minors who play violent video games are more likely to exhibit violent behavior, the state claimed, because the players directly control the characters’ violent actions in the game. 

However, the state presented “no scientific evidence” to support its claim, the court wrote in its opinion.  “The research conducted by the State has failed to prove that video games have ever caused anyone to commit a violent act, let alone present a danger of imminent violence,” which is one requirement needed to restrict free speech. 

In addition, the court stated, the law violates the Fourteenth Amendment’s requirement that statutes not be vague.  The “lack of precision” in defining what is “harmful to minors” and what constitutes “extreme and loathsome violence” in a video game under the law “will subject Michigan retailers to steep civil and criminal liability if they guess wrongly about what games the Act covers,” the opinion stated.  

In November of last year, the court had issued a preliminary injunction, enjoining the enforcement of the Michigan law before it was set to take effect December 1.

Partners Paul M. Smith and Katherine A. Fallow and Associates Matthew S. Hellman, Duane Pozza and Amy L. Tenney represented the Entertainment Software Association, Video Software Dealers Association and Michigan Retailers Association in the case. 

Jenner & Block is representing the video game industry in challenges to similar state laws in California and Illinois.  The court in California recently granted the Firm’s motion for a preliminary injunction, and the Illinois court granted a permanent injunction.  The Firm has also 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 court’s decision.