Jenner & Block

Jenner & Block Secures 9th Circuit Victory for Video Game Industry Clients

In a victory for Jenner & Block’s video game industry clients, a federal appeals court today affirmed a lower court ruling that bars enforcement of a California law that would have restricted the sale of some video games based on their content.  The court found the law to be an unconstitutional violation of the video game makers’ and retailers’ freedom of speech.

Enforcement of the law would have restricted the sale or rental to anyone under the age of 18 of computer and video games that were classified as “violent.”  The law would also have required retailers to mark certain video games with a solid white “18” label. In its decision, the U.S. Court of Appeals for the Ninth Circuit stated that the California law was unconstitutional because it did not meet the strict-scrutiny standard for content-based regulation of speech, and the state did not demonstrate a compelling interest in regulating the video game maker’s freedom of speech.

“The evidence presented by the State does not support the Legislature’s purported interest in preventing psychological or neurological harm.  Nearly all of the research is based on correlation, not evidence of causation, and most of the studies suffer from significant, admitted flaws in methodology as they relate to the State’s claimed interest,” the court said in its ruling. “Although we do not require the State to demonstrate a ‘scientific certainty,’ the State must come forward with more than it has.”

Since 2006, Jenner & Block has successfully challenged similar laws on constitutional grounds in Illinois, Louisiana, Michigan, Minnesota and Oklahoma.  The Firm’s team also successfully challenged laws in Washington State and St. Louis in 2003.

Partners Paul M. Smith and Katherine A. Fallow and Associates Matthew Hellman and Duane Pozza challenged the California law on behalf of the Entertainment Merchants Association and the Entertainment Software Association.

Please click here to view the Ninth Circuit's decision.