Ninth Decision in Six Years Finds Video Games to be Protected Under …

Ninth Decision in Six Years Finds Video Games to be Protected Under the First Amendment

WASHINGTON, D.C.- LAWFUEL – Law News, Law Jobs Network –Judge James Brady, Federal District Court, Baton Rouge, yesterday ordered a permanent injunction halting the implementation of a Louisiana statute that sought to ban the sale of violent video games to minors, the Entertainment Software Association (ESA) said today. Federal courts in nine cases in the past six years have now struck down or enjoined laws seeking to ban video game sales to minors. None have been upheld.

What makes Judge Brady’s action unusual and remarkable is that he issued his ruling from the bench rather than through a written decision, a strong signal that he felt the State’s arguments were so without merit that they didn’t even require a detailed opinion beyond the Judge’s August decision imposing the preliminary injunction. In his August ruling, the Judge emphasized the State’s failure to take into consideration when passing this law the long line of previous cases holding that video games are protected speech. The ESA will immediately file to recover its legal fees from the State as it has successfully done elsewhere.

“In nine out of nine cases, federal courts have struck down these grandstanding efforts by politicians to ban video game sales to minors. It doesn’t get clearer than that,” said Douglas Lowenstein, president of the ESA, the trade group representing U.S. computer and video game publishers. “One hopes that enough is enough. Video games are like rock and roll: they’re here to stay, and it’s about time for elected officials to focus their energies, and taxpayer dollars, on truly productive and useful programs to educate parents to use the tools industry has made available — from ESRB ratings to parental control technologies.”

In his August decision, Judge Brady wrote that the state had overlooked a series of previous cases which found that video games are protected free speech. According to that opinion, video games “…are as much entitled to the protection of free speech as the best of literature.” With regard to the “social science” presented in the case, the judge stated, “It appears that much of the same evidence has been considered by numerous courts and in each case the connection was found to be tentative and speculative…. The evidence that was submitted to the Legislature in connection with the bill that became the Statute is sparse and could hardly be called in any sense reliable.” Finally, Judge Brady found that, “….less restrictive alternatives [which would achieve the state’s goals] exist, including encouraging awareness of the voluntary ESRB video game rating system (which provides guidance to parents and other consumers), and the availability of parent controls that allow each household to determine which games their children can play.”

In addition, earlier this week the Seventh Circuit in Illinois overturned an appeal by the State of Illinois related to a similar another video game law, reaffirming that video games are covered by First Amendment protections and that the state cannot restrict sales of particular games to minors. The Seventh Circuit decision dealt with a law attempting to regulate sexually explicit video games and ruled that the law was not narrowly tailored to cover only works that are obscene as to minors. To the contrary, the State sought to keep away from kids games with high value for them simply because they have some sexually explicit material in them as well.

The ESA is the U.S. association dedicated to serving the business and public affairs needs of the companies publishing interactive games for video game consoles, handheld devices, personal computers, and the Internet. ESA members collectively account for more than 90 percent of the $7 billion in entertainment software sales in the U.S. in 2005, and billions more in export sales of entertainment software. For more information about the ESA, please visit

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