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in support of free expression
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©Copyright 2005 NCAC
WEB DESIGN
Jeanne Criscola Criscola Design
free speech first amendment censorship
Illinois Judge Upholds First Amendment
Video Games Upheld as Protected Speech
In a decision hailed by free speech advocates, the Illinois District Court Judge Kennelly issued a strongly worded 53 page opinion in which he concluded that both the restrictions on violent and non obscene sexually explicit games violate the First Amendment and granted a permanent injunction against their implementation.
In his opinion, Judge Kennelly dismissed the testimony
presented on behalf of the state by Dr. Anderson, “Defendants have
failed to present substantial evidence showing that playing violent video
games causes minors to have aggressive feelings or engage in aggressive
behavior...With these limited findings, it is impossible to know which
way the causal relationship runs: it may be that aggressive children may
also be attracted to violent video games.” In addition, the court
discounted the state's expert on "brain mapping," Dr. Kronenberger,
finding that his studies on "brain activity" cannot support the weight he
attempts to put on them via his conclusions. The defendants have offered
no basis to permit a reasonable conclusion that minors who play violent
video games are more likely to ‘[e]xperience a reduction of activity in
the frontal lobes of the brain which is responsible for controlling behavior.”
In granting the permanent injunction, the court applied strict scrutiny
under the First Amendment, which provides that a state may impose a
content-based restriction only if it has a compelling interest and has
chosen the least restrictive means to further the interest. While
acknowledging that the state has a compelling interest in preventing
violent and aggressive behavior on the part of minors, the court
acknowledged that the state may only regulate expression which meets the
requirements of Brandenburg v. Ohio which requires a finding that the
expression is directed to inciting or producing imminent lawless action,
and is likely to incite such action. The court found that the state did
not make the necessary showing under Brandenburg that the game content
"is directed to inciting or producing imminent lawless action," nor did
the evidence demonstrate that the games were, "likely to produce imminent
violence." Moreover, the court stated that the state failed to present
substantial evidence showing that playing violent games causes minors to
have aggressive feelings or engage in aggressive behavior.
Judge Kennelly rejected the assertion that the statue serves a compelling
state interest, finding that protecting psychological harm to minors
does not allow the state to ban protected speech on the ground that it
affects the listener's thoughts and attitudes. The court further stated,"The government cannot constitutionally premise legislation on the
desirability of controlling a person's private thoughts." The court
noted that the underinclusiveness of this statute – given that violent
images appear more accessible to unaccompanied minors in other media –
indicates that regulating violent video games is not really intended to
serve the proffered purpose.”
The court refused to expand the Ginsberg obscenity test for minors to
include depictions of violence, stating Ginsberg applies to obscenity,
which is not entitled to First Amendment protection. Judge Kennelly
agreed that the definition of violent video games was unconstitutionally vague, and will leave video game creators, manufacturers, and retailers guessing about whether their speech is subject to criminal sanctions.
Finally, the court struck down the regulation of sexually explicit video games which includes only two of the three tiers of the "harmful to minors" test that was approved by the Supreme Court in Ginsberg.
Resources
» Read the court decision in ESA v. Illinois
» Read an op-ed from Censorship News #92 on violence and video games
» Read a press release from the ESA
» Read NCAC Director Joan Bertin's court testimony on violence in entertainment
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