In 2000, the county of St. Louis in Missouri passed an ordinance that regulated the sale and display of so-called “violent” video games. Immediately after the ordinance passed, members of the Interactive Digital Software Association, a gaming industry group, brought suit against the county.
The Ordinance requires owners and managers of arcades to place video games which they know to be harmful to minors separate and apart from other video games, and shall designate such areas as “Restricted-17.” The Ordinance makes it unlawful to knowingly sell or rent a video game which is harmful to a minor unless that minor is accompanied by a parent or guardian who consents to the purchase or sale. The Ordinance also makes it unlawful to knowingly admit a minor to a “Restricted-17” area, and to knowingly permit the free play of a video game which is harmful to minors on premises which video games are sold or rented.
“Harmful to minors” is defined in the Ordinance to mean a video game that “predominantly appeals to minors’ morbid interest in violence”, “is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacks serious literary, artistic, political or scientific value as a whole for minors, and contains . . . graphic violence.” The term “graphic violence” is defined in the Ordinance as the “visual depiction or representation of realistic serious injury to a human or human-like being where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfiguration.”
All games rated “M” by the ESRB will be presumed to be “harmful to minors”
The main argument made by the IDSA is that video games are speech that are protected by the First Amendment. Since video games are speech, any sort of regulation of them will fall under strict scrutiny requirements, meaning that the onus is on the city to prove that they have and overriding state interest to regulate speech and that the ordinance has been narrowly tailored for that specific purpose. The IDSA argued that the city did not give sufficient reasoning to impugn on freedom of speech and that their definitions of what is “harmful to minors” are vague and overbroad. In support of their case, the IDSA provided an affidavit from Douglas Lowenstein, the president of the Assoc., where he outlined the creative process behind video games and gave some written examples. The IDSA did not enter into evidence any finished games. This is important!
St. Louis County defended the ordinance on multiple grounds. First, they argued that video games do not contain sufficient expressive elements to put them within the protection of the First Amendment. Second, even if video games did contain some expressive elements, their sheer amount of violence would make them obscene to minors anyway, and thus negate any sort of protection. Thirdly, the county says that the terms used in the ordinance are as specific as possible. In support of their case, St. Louis county brought forth the testimony of several psychologists that stated that violent games cause damage to children. The county also submitted into evidence four games for the judge to look at: DOOM, The Resident of Evil Creek (which I have not heard of, I think the judge may be talking about Resident Evil), Fear Effect, and Mortal Kombat (which the judge refers to as Mortal Combat in his decision).
In his decision, U.S. District Judge Stephen Limbaugh cites many cases, unfortunately they are either the wrong ones or the right ones in the wrong way. Most of the early case law surrounding video games was established in the early 1980s, a time when most games contained a lot less speech elements than they do today. Cases that are this old need to be disregarded, as video game have grown by creative leaps and bounds since then.
Limbaugh also cites the landmark Supreme Court decision in Burstyn v. Wilson which gave free speech rights to movies. Limbaugh misconstrues the language of the decision to state that in order for a new medium to gain protection "it has to be designed to express or inform, and there has to be a likelihood that others will understand that there has been some type of expression." He also cites the case of Winters v. New York, which held that "indecent" magazines deserve as much protection as the best literature. Limbaugh goes on to disregard this case, meaning that in order for a new medium to gain free speech rights, it has to show a higher level of "speech" content than an already established medium.
The judge eventually decided that video games do not contain enough expressive elements to deserve First Amendment protection. Video games are not free speech. Since video games are not free speech, the county is within their right to regulate them as they please. However, I do not entirely blame Justice Limbaugh for this loss, some of the blame falls squarely at the feet of the IDSA.
The IDSA completely blew this case and it is their fault that games have not received Constitutional protection. They did not present any evidence to counteract the evidence given by the county, instead settling for a glorified press release given by their president. They did not present any expert testimony to refute the county psychologists. And most importantly they did not present to the judge any games to defend their case!
Limbaugh mentions in his decision that if he had been presented any games that feature the extensive plot and character development that the IDSA was touting, he would have found that games were free speech and strict scrutiny would have been triggered. But all he had to go on were the four games presented by the county which, while they may be fun, certainly do not contain enough story elements to impress a judge.
How many games are out there that the IDSA could have submitted to win their case? Black & White? Max Payne? Deus Ex? The entire Ultima series? Those are just off the top of my head. Couldn't they have brought in testimony from people like Warren Spector and Peter Molyneux to talk about the many expressive elements of games? The IDSA dropped the ball, no question.
In 1915 the United States Supreme Court found that movies do not deserve First Amendment protection. It took them almost forty years to finally rectify this decision. How long will it be for video games?
June 3, 2003 - St. Louis County just got their ass handed to them in a decision by the 8th U.S. Circuit Court of Appeals. The 8th Circuit overturned Justice Limbaugh’s District Court ruling and found that video games deserve just as much free speech protection as other media.
If the first amendment is versatile enough to shield the painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll, we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence. Our review of the record convinces us that these "violent" video games contain stories, imagery, age-old themes of literature, and messages, even an ‘ideology,’ just as books and movies do.
The Appeals court also felt that the restrictions put forth by the county were strong enough to trigger strict scrutiny, and that the county’s reasoning that the games harmed children was not backed up with enough scientific evidence, even going so far as to state that the scientific studies involved were “ambiguous, inconclusive, or irrelevant”. I guess it is also a telling fact about how American morals are skewed that the court decided that “material that contains violence but not depictions or descriptions of sexual conduct cannot be obscene.” Apparently, you can have as much violence as you want, but only a certain amount of sex before your work can be declared obscene.
IMHO this was an excellent decision by the Appeals court. They saw that games can contain just as many speech elements as a book or a film, and realized protecting art was more important than the knee-jerk reactions of a bunch of overzealous government officials. Their ruling was backed up by voluminous amounts of case law and was written clearly and succinctly. (Can you tell that I’m enjoying this?) I really doubt that St. Louis County is going to bother appealing this case to the Supreme Court, so that's the last we should hear of this case.
Read the decision for yourself at http://www.ca8.uscourts.gov/opndir/03/06/023010P.pdf