Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Tuesday, March 18, 2008

Eighth Circuit Affirms Video Game Decision; Blocks Enforcement of Minnesota Video Game Law

The U. S. Eighth Circuit Court of Appeals has affirmed a lower court's grant of a permanent injunction against "enforcement of section 325I.06 of the Minnesota code, which prohibits minors from purchasing or renting video games bearing a "Mature" or "Adult only" rating...." Violators were subject to a fine of not more than 25 dollars.

The appellate court reviewed the district court's ruling for abuse of discretion.

The State contends that the district court erred by concluding that children have a protected First Amendment right of access to violent video games and consequently erred by applying strict scrutiny analysis to the Act’s prohibition rather than the scrutiny more typically reserved for obscenity. The State asserts that even under its strict scrutiny analysis, the district court demanded a more rigorous evidentiary showing (that of actual causation) than that which is legally required. It also argues that the Act is neither unconstitutionally over- or under-inclusive, and that the delegation of authority to the ESRB is constitutional because the ESRB applies clear and discernable standards. Because we conclude that, under the exacting standard of proof that has been established for cases of this nature, we must affirm the district court’s finding with respect to the inadequacy of the State’s evidence, we do not pass on the correctness vel non of the district court’s decision on the other issues. We have held that violent video games are protected free speech. Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003) (hereinafter Interactive Digital), a holding that the State recognizes is binding upon us, but one which it hopes might be overturned in an en banc review of this case. In light of Interactive Digital, any restriction on the purchase or rental by minors of violent video games is subject to strict scrutiny analysis. Id. at 958. We will find the Act constitutional, then, only if it is “necessary to serve a compelling state interest and . . . is narrowly tailored to achieve that end.” Id. (citing R.A.V. v. St. Paul, Minn., 505 U.S. 377, 382 (1992)). The State offers two interests that it asserts are compelling—safeguarding both the psychological well-being and the moral and ethical development of minors....While we have concluded that an interest in safeguarding the psychological well-being of minors is "compelling in the abstarct," the alleged harms must be shown to be "real, not merely conjectual, and that the regulation will in fact alleviate these harms in a direct and material way."


In finding that the video games at issue...were protected free speech, the Interactive Digital court described them as containing "stories, imagery, age-old themes of literature, and messages, even an ideology, just as books and movies do."...Although some might say that it is risible to compare the violence depicted in the examples offered by the State to that described in classical literature, such violence has been deemed by our court worthy of First Amendment protection, and there the matter stands.

...[W]e accept as a given that the State has a compelling interent in the psychological well-being of its minor citizens....Nevertheless, in light of the heightened standard of proof that Interactive Digital says must be applied, we conclude that the evidence falls short of establishing the statistical certainty of causation demanded thereby.

Read the entire ruling here. The case is Entertainment Software Association v. Swanson, 2008 U.S. App. LEXIS 5634; 2008 WL 696550 (2008).

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