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Louisiana State Univ.

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Friday, December 1, 2006

Seventh Circuit Upholds Lower Court In ESA Video Game Case

The Seventh Circuit has upheld a lower court which, agreeing with the plaintiffs, found the newly enacted Illinois Video Game Law and the Sexually Explicit Video Game Law unconstitutional and granted an injunction against their enforcement. The SEVGL prohibits the sale or rental of sexually explicit video games to minors, imposing criminal penalties on any "person who sells, rents, or permits to be sold or rented, any sexually explicit video game to any minor...".

The lower court judge applied strict scrutiny. "Specifically, the court concluded that the SEVGL was not narrowly tailored and that the SEVGL's brochure, labeling and signage provisions constituted "compelled speech" in violation of the First Amendment. The court also found that sovereign immunity did not bar suit against the Attorney General...."

The Seventh Circuit reviewed the case de novo. With regard to the issue of sovereign immunity, the court found that "[t]he Supreme Court has authorized suits against state officials in their official capacities when plaintiffs seek to enjoin allegedly unconstitutional statutes....The Attorney General argues that the plaintiffs have only established a "general connection between her duties and the SEVGL....We are unconvinced by this argument. The Attorney General concedes that she has the power to enforce the SEVGL; the power is simply concurrent with that of the State's Attorney. This satisfies the "some connection" requirement of Ex parte Young."
...
"The plaintiffs argue that the sale and rental provisions of the SEVGL facially violate the FIrst and Fourteenth Amendments....As the State concedes, the SEVGL is a content-based restriction on speech, and we must employ strict scrutiny....Here, the State's identified purpose is "shielding children from indecent sexual material and in assisting parents in protecting their children from that material."...We need not spend time determining whether this is a compelling interest; it clearly is....The burden is on the STate to demonstrate that the SEVGL is narrowly tailored to achieving this purpose.....None of the parties allege that th egames affected by the SEVGL are "obscene," as that term is understood in the parlance of constitutional law; the State rather contends that the games are "indecent"....Either Ginsberg or Miller provides us with the third prong in an appropriate standard for what material can be regulated in the manner of the SEVGL. That is to say, somewhere between Ginsberg and Miller we arrive at the basement of constitutionality of a statute criminalizing the distribution of sexually oriented materials to minors. Inexplicably, the State of Illinois chose to ignore both Ginsberg's and Miller's third prongs in creating the SEVGL's definition of "sexually explicit." The State thereby simultaneously failed to narrowly tailor the statute and created a statute that is unconstitutionally overbroad....But even if we found no inherent problems in the SEVGL's "sexually explicit" definition, the statute could still not survive strict scrutiny because the plaintiff have identified other less restrictive alternatives to the SEVGL. Most obviously, the State could have simply passed legislation increasing awareness among parents of the voluntary ESRB ratings system.....The Supreme Court has indicated that "[w]hen plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute."....The Government has not met this burden with regard to this proposal."

Finally, the court examined the signage and labeling provisions. "The State also appeals the district court's ruling that the SEVGL's labeling, brochure and signage provisions constitute compelled speech in violation of the First Amendment....[T]he First Amendment's guarantee of freedom from "compelled speech" is not absolute. Particularly in the commercial arena, the Constitution permits the State to require speakers to express certain messages without their consent....The question that we must ask is whether the SEVGL's labeling and signage requirements are compelled speech in violationg of the Constitution or simply requirement of purely factual disclosures. The State argues that all of these provisions are like the mercury disclosure requirements in Sorrell....The SEVGL requires that the "18" sticker be placed on games that meet the statute's definition of "sexually explicit." The State's definition of this term is far more opinion-based that the question of whether a particular chemical is within any given product. Even if one assumes that the State's definition...is precise, it is the State's definition--the video game manufacturer or retailer may have an entirely different definition....Yet the requirement that the "18" sticker be attached to all games meeting the State's definition forces the game-seller to include this non-factual information in its message that is the game's packaging. This is unlike a surgeon general's warning....For these reason, we must apply strict scrutiny....Applying strict scrutiny, we cannot say that the "18" sticker is narrowly tailored to the State's goal of ensuring that parents are informed....[T]he State has not demonstrated that it could not accomplish this goal with a broader educational campaign about the ESRB system....Indeed, at four square inches, the "18" sticker literally fails to be narrowly tailored--the sticker covers a substantial portion of the box."

The case is Entertainment Software Association v. Blagojevich, 2006 U.S. App. LEXIS 29356 (U.S.C.A., 7th Circ.); 2006 WL 3392078 C.A.7 (Ill.), 2006.

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