November 28, 2006
Seventh Circuit Enjoins Video Game Porn Statute
Here's an interesting decision where the Seventh Circuit unanimously held that an Illinois statute designed to prevent minors from being exposed to sexual content while playing video games was unconstitutional. The provision at issue defined the prohibited content as follows:
[T]hose that the average person, applying con- temporary community standards would find, with respect to minors, is designed to appeal or pander to the prurient interest and depict or represent in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibi- tion of the genitals or post-pubescent female breast.
Applying strict scrutiny to this prior restraint, the Court criticized the drafting of the legislation:
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. See Grayned v. City of Rockford, 408 U.S. 104, 114 (1972) (“A clear and precise enactment may neverthe- less be ‘overbroad’ if in its reach it prohibits constitutionally protected conduct.”).
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