Jenner & Block

Firm Seeks to Block Video Game Laws in Louisiana and Minnesota

Jenner & Block is representing the video game industry in its latest constitutional challenges to state laws that attempt to regulate access to certain video games by minors.  Louisiana and Minnesota both enacted such laws within the last month. 

Last week, the Firm persuaded a Louisiana federal district court to issue a temporary restraining order against enforcing that state’s law, which criminalizes the sale or rental of “violent” video games to minors and subjects violators to prison terms and/or criminal fines.  The act was signed into law on June 15 and was to go into effect immediately.  The Firm will now ask the court to permanently block enforcement of the law, and a preliminary injunction hearing is set for June 30. 

According to the complaint, the Louisiana law violates the video game makers’ First Amendment right to freedom of expression as well as the Fourteenth Amendment’s requirement that statutes not be “vague.”  The Act is “rife with unconstitutionally vague terms” that set forth unclear standards for determining which video games are “violent,” which would lead to arbitrary enforcement of the law, the Firm argued. 

The Minnesota act, signed into law on May 31, imposes a $25 fine upon any minor who buys or rents a video game rated “M” (Mature) or “AO” (Adults Only) by the Entertainment Software Rating Board.  In addition, the Act requires that any retailer who sells or rents video games must post a sign in a location “clearly visible to consumers,” in 30-point type, that describes this restriction and risk of fine.  That law is to take effect on August 1, 2006. 

The Firm filed a complaint in the U.S. District Court for the District of Minnesota on June 6, then filed for a temporary restraining order and/or preliminary injunction on June 13, arguing that the Firm’s clients and the public would suffer “irreparable harm” to their First Amendment liberties if the Act were allowed to go into effect before a full hearing on the constitutionality of the law.  An injunction hearing is set for July 11. 

According to the complaint, the Minnesota law thwarts the First Amendment rights of consumers by imposing penalties for the purchase or rental of video games based solely on their content, which amounts to “content-based censorship.”  The signage requirement also violates the civil rights of video game retailers by compelling them to disseminate the government’s message that minors should be denied access to certain games, the Firm argued. 

Furthermore, the Minnesota law violates the Equal Protection Clause of the Fourteenth Amendment because it arbitrarily and irrationally “classifies” works of expression.  The Act’s regulations and penalties “do not apply to other works containing the same or similar content” found in other media such as television, movies, books and magazines, and is therefore establishes an unconstitutional “scheme of classifications.”

The Louisiana and Minnesota lawsuits come on the heels of several successful challenges by the Firm against similar laws in California, Illinois and Michigan.  Indeed, the Firm noted in both the Minnesota and Louisiana lawsuits that every court to have considered First Amendment issues in similar cases has rejected the arguments by the states that they have a “compelling interest” in regulating minors’ access to video games that override civil rights concerns.  The Firm also added that those courts have found “no substantial evidence” indicating that video games influence how minors think or behave, and that restricting protected expression is a role “accorded to parents, not the government.”  

Partners Paul M. Smith, Katherine A. Fallow and Associates Matthew S. Hellman, Duane Pozza and Elizabeth Valentina are representing the Entertainment Software Association and Entertainment Merchants Association in both Minnesota and Louisiana.

Please click here to view the complaint filed in Minnesota.

Please click here to view the Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order and/or Preliminary Injunction filed in Minnesota.
Please click here to view the complaint filed in Louisiana.
Please click here to view the Memorandum in Support of Plaintiff’s Motion for a Temporary Restraining Order and/or Preliminary Injunction filed in Louisiana.
Please click here to view the Order Granting Application For a Temporary Restraining Order in Louisiana.