Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, May 5, 2006

District Court Rules State Statute Violates Free Speech Rights of Entertainment Game Creators

A district court has ruled that a Michigan state statute violates the First and Fourteenth Amendments of the U. S. Constitution and has enjoined the statute, due to take effect December 1, 2005. Judge George Caram Steeh ruled that Michigan Public Act 108 which "regulates the distribution of both sexually explicit video games and ultra violent explicit video games to those under the age of 17" violated the rights of the plaintiffs, "creators, publishers, and distributors of video games". The court had granted a preliminary injunction on November 9, 2005, and then took up the matter of the permanent injunction.

Under its analysis, the court examined the question of "whether "video games are considered to be constitutionally protected free speech. The notion that video games are protection free speech under the First Amendent is becoming widely adopted in Circuit Courts around the States....The Sixth Circuit held that video games were protected free speech under the First Amendment for the purposes of regulating tort liability and stated that "[o]ur decision here today should not be interpreted as a broad holidng on the protected status of video games."...However the Court did recognize that "most federal courts to consider the issue have found video games to be constitutionally protected [free speech]."...Video games are a form of creative expression that are constitutionally protected under the First Amendment. They contain artwork, graphics, music, storylines, and characters similar to movies and television shows....The defendant concedes that the First Amendment fully protects the expressive element in video games, which is not present in other forms of electronic media, can be distinguished and should not be considered protected to take into consideration the nature of interaction in various forms of entertainment media....With the rapid advancements of video game technology and new innovations, such as online gaming, video games are becoming more open ended with more possibilities to interact with other players and control the fate of the characters and the worlds they inhabit. It would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependant on each other in creating the virtual experience. For these reasons, this Court finds that video games contain creative, expressive free speech, inseparable from their interactive functional elements, and are therefore protected by the First Amendment."


"Since the attempted regulation of the video games is content based, the law is "presumptively invalid" and subject to strict scrutiny. ...Strict scrutiny also requires the Act to be narrowly tailored and a material advancement of the State's interest. ...

The plaintiffs argue that the Act fails the three-part test set forth in Brandenburg ... and therefore violates the First Amendment. Under the first prong of the Brandenburg test, free speech may be restricted if it "is directed to inciting or producing the imminent lawless action and is likely to incite or produce such action." ....The plaintiffs correctly assert that because the video game producers do not intend for the consumers to commit violent actions, the Act fails this first prong. The second prong requires that the danger of violence must be imminent. 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. Finally, as discussed below, the State's research fails to prove that ultra-violent video games are "likely" to produce violent behavior in children.

The defendants contest the applicability of the Brandenburg test, citing that the standard was rejected in the case of Video Software Developers Ass'n v. Schwarzenegger, .... Rather they argue that the obscenity test from Ginsberg v. New York, 390 U.S. 629 (1968) should be applied as the level of scrutiny. In Ginsberg, the Court allowed New York to restrict minors' access to sexually explicit material, even though the restriction would have been invalid if directed toward adults. In order for free speech to be restricted under the Ginsberg test, the material must be shown to be "disgusting or degrading." The defendants argue that some video games incorporate such a level of violence that they meet this standard. The defendants give the example of Postal II, a game in which players have the ability to shoot schoolgirls in the knees, set them on fire, and urinate on their corpses. Despite the fact that some of these games are likely to be considered "disgusting or degrading" by certain people, neither the Supreme Court nor Sixth Circuit has ever applied the Ginsberg test in cases that don't involve sexually explicit material, James, 300 F.3d at 689. This court finds the Ginsberg test inapplicable to the ultra-violent explicit section of the Act."


With regard to the Fourteenth Amendment violation, the court said,

"The Constitution requires that statutes be set forth with "sufficient definiteness that ordinary people can understand what conduct is prohibited." ...Such precision is necessary to "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly."...Vagueness of a "content-based regulation of speech raises special First Amendment concerns because of its obvious chilling effect on free speech", especially where the regulation imposes criminal penalties. Plaintiffs take issue with the Act's prohibition of "extreme and loathsome violence", which is defined as "graphic depictions of physical injuries or physical violence against parties who realistically appear to be human beings." ...Plaintiffs aver that "human beings" is a term ill-suited to a medium that relies extensively on animated, extra-terrestrial, and fantastic forms and characters, which may have some human characteristics, or may be "human" at some times but not others. The court in E.S.A. held that the Illinois statute's use of the term "human-on-human" violence was unconstitutionally vague, leaving "video game creators, manufacturers, and retailers guessing about whether their speech is subject to criminal sanctions." ..."It is also open to subjective interpretation and enforcement by law enforcement officers who may apply the law in an 'arbitrary and discriminatory' way." ...

Read the entire opinion here.

May 5, 2006 | Permalink | Comments (0) | TrackBack (0)

Judge Orders Baigent, Leigh to Prepare to Pay Up in "Da Vinci Code" Case

Mr. Justice Smith has ordered the plaintiffs in the "Da Vinci Code" litigation to provide information on their assets as they prepare to pay over the first installment of nearly $650,000 to publisher Random House. Michael Baigent and Richard Leigh owe about 85 percent of the legal bills that mounted up over the years of the lawsuit over their claims of copyright infringement. Observers estimate the total at about $2.4 million. Read more here.

May 5, 2006 | Permalink | Comments (0) | TrackBack (0)

Proposed New Turkish Legislation Might Curtail Press, Other Government Critics

The New Anatolian reports that the Istanbul Bar Association is asking the government not to push new legislation that would criminalize a great deal of seemingly innocuous behavior, and would allow law enforcement new powers to seek out suspected terrorists. Among the fears: a possible crackdown on the media. Read more here.

May 5, 2006 | Permalink | Comments (0) | TrackBack (0)

Thursday, May 4, 2006

Louis Rukeyser Dies

The Washington Post's Paul Fahri has written an appreciation of Louis Rukeyser's life and work here.

May 4, 2006 | Permalink | Comments (0) | TrackBack (0)

Frist Attempt to Increase Indecency Fines Stalls

Senate Majority Bill Frist's attempt to move legislation increasing fines for network broadcasts of indecent material seems to have run into unexpected opposition from his colleagues. He had attempted to put his bill promoting much higher penalties for such broadcasts on a fast track, but Senators from both parties apparently put up resistance to the measure. Read more here.

May 4, 2006 | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 3, 2006

Journalists Can't Interview Prostitutes in German "Drive-In Brothels"

Cologne officials have told the media covering the World Cup to stay away from the city's "red-light" district and stop trying to interview or take pictures of the people who work there. Apparently journalists eager to get interesting stories have scared away customers, and the sex workers have complained to the government. Read more here.

May 3, 2006 | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 2, 2006

Harvard Student Author May Have Copied From Other Novels Work

CNN and the Boston Globe have picked up a story in the Harvard Crimson that Kaavya Viswanathan, the author of How Opal Mehta Got Kissed, Got Wild and Got a Life, may have copied passages as well from Sophie Kinsella's novel Can You Keep a Secret? and Meg Cabot's The Princess Diaries. Neither Little, Brown, Viswanathan's publisher, nor Viswanathan herself, have commented on the new allegations. Little, Brown has withdrawn HOMGKGWGL from sale.

May 2, 2006 | Permalink | Comments (0) | TrackBack (0)

Monday, May 1, 2006

A Paper on Media Licensing

Robert Horvitz, the Open Spectrum Foundation, has published "Media Licensing, Convergence, and Globalization" in volume one of EastBound. Here is the abstract.

For nearly a century, governments have imposed detailed limits on the use of radio - who can use what frequencies and waveforms, at what power levels, in which locations, for what purposes. Licenses summarize these controls for specific users or stations. State control of radio use goes far beyond what is accepted for other media, (publishing, photography, Internet, speech, etc.). Most people think this is necessary to control interference; others felt that broadcasting was too powerful a social influence to be left unregulated.

But recently, there has been explosive growth in short-range, personal uses of radio - Bluetooth, Wi-Fi, cordless phones, etc. The arguments used to justify radio licensing seem inappropriate for such low-power devices. In fact, government regulation of purely personal, informal communications is unnecessarily intrusive and politically risky. Many countries now allow some short-range wireless devices to be used without a license in specific bands. In general, smarter radios go a long way toward solving problems that once seemed to require rigid government controls, giving rise to the open spectrum movement.

At the same time, digitalisation and the widening use of TCP/IP make it possible to transmit nearly any content through any channel. We use our mobile phones to take photographs, send text messages and watch videoclips. Our cable television networks provide Internet access. Seeping out of their original contexts, dissimilar media traditions now mix and clash in interconnecting, hybrid networks. In this situation, it is crucially important to the future of human communication which regulatory norms emerge as default choices and dominant models. Will it be broadcasting, telephony, publishing, Internet or ordinary speech that sets the tone for communications policy in the age of ubiquitous networks? Which regulatory approach do we WANT to set the tone?

Download the paper here.

May 1, 2006 | Permalink | Comments (0) | TrackBack (0)

Free Speech For Students Online

Findlaw's Anita Ramasastry discusses free speech for students online on such sites as and here, holding that "the First Amendment will protect many student postings, as long as they do not "materially disrupt" school activities - and as long as the students attend public, not private, schools."

May 1, 2006 | Permalink | Comments (0) | TrackBack (0)

An Analysis of the Digital Television Broadcast Rule

Cuong Lam Nguyen, University of Houston Law Center, has published a comment in its law review, "A Postmortem of the Digital Television Broadcast Flag." Here is the abstract.

This Comment explores flaws in the FCC’s broadcast flag rules and examines how future television broadcast piracy solutions should address the broadcast flag’s shortcomings. Part II begins with a brief history of television and the circumstances that brought the broadcast flag into existence and then proceeds to map out the evolution of broadcast flag regulation. Following this history, Part III examines the fair use doctrine in the context of broadcast television. Part IV proposes that the best way for future DRM schemes to preserve fair use is to adopt competition and innovation-friendly policies that provide consumers with a variety of options that will collectively restore the scope of their fair use activities. Part IV also critiques the FCC’s policy choices and explains why these policy decisions fall short of establishing the competitive and innovative climate necessary to preserve fair use. Part V concludes that the broadcast flag policies will provide important lessons in this ever-evolving debate of fair use.

Download the entire paper here.

May 1, 2006 | Permalink | Comments (0) | TrackBack (0)

U. S. Filmmaker Released from Afghani Prison

Afghanistan's President Hamid Karzai released Bronx filmmaker Edward Carabello yesterday, two months before his prison term was due to end, and sent him home via Dubai. Carabello, along with two other Americans, had been convicted of running a private jail. The other Americans remain in prison. Read more here. Read about the original trial here.

May 1, 2006 | Permalink | Comments (0) | TrackBack (0)

Sunday, April 30, 2006

Leaks and the Press

The Sunday New York Times has two pieces on leaks, leakers and the press, one by Adam Liptak and one by Scott Shane.

April 30, 2006 | Permalink | Comments (0) | TrackBack (0)

Wikipedia in the News Again

Apparently Wikipedia, the popular online encyclopedia that can easily be edited, has proved to be a target for online "dirty tricks". The Sunday New York Times has an article here.

April 30, 2006 | Permalink | Comments (0) | TrackBack (0)