About two weeks ago, the Louisiana state legislature passed a law barring the sale of violent video games to minors. Governor Kathleen Blanco signed it into law late last week. Behind the legislation was anti-gaming-violence crusader Jack Thompson, who helped write the law and trumpeted its passage by saying that it addresses "all the complaints raised by federal courts which have struck down other video game laws."
That may not be the case after all. Late last week, the Entertainment Software Association and Entertainment Merchants Association sued the state of Louisiana, arguing that the law was unconstitutional. Judge James J. Brady of the US District Court for the Middle District of Louisiana today issued a temporary restraining order (PDF) barring its enforcement. A hearing on the possibility of granting a preliminary injunction will be held on June 30 (not the 27th, as stated in the order).
In a brief interview, Thompson said that he was not surprised by the judge’s action, saying that it is normal for a judge to preserive the status quo prior to the passage of the law when litigation is brought. He said that he and the state of Louisiana were "marshaling our facts and our cases." He feels strongly that the law is constitutional as written, but remarked that it is impossible to "predict what a court is going to do."
What is particularly interesting about the Louisiana legislation is that it tries to respond to previous court rulings by attempting to address First Amendment concerns raised in judicial review of other legislation. In particular, it uses the Miller test, which defines obscenity as something that by contemporary community standards appeals to the prurient interest; depicts sexual content specifically defined by state law in a patently offensive way; and lacks serious literary, artistic, political, or scientific value.
Typically, the Miller test is used for pornography or other sexual content, which is protected by the First Amendment as long as it is not considered obscene. What it hasn’t typically been used for is depictions of violence, which is what the Louisiana legislation is trying to do. Louisiana’s problem is a lack of judicial precedent. "Never before has the Supreme Court or a high appellate court said ‘we’re now going to use the same reasoning for subject matter other than sex,’" Steve Smith, a partner at Greenberg Glusker with extensive experience with gaming-related litigation, told Ars in an interview.
In crafting the video game bill, the sponsors also introduced much of what Thompson describes as the scientific evidence supporting the claim that violent video games are unequivocally harmful to minors. One problem with that is that the science on the effects of video game violence is anything but clear cut. Smith believes that is a big barrier to the law’s being ruled constitutional, as it doesn’t pass the test of strict scrutiny: providing "overwhelming evidence that video games cause a specific, predictable, foreseeable harm."
Despite the care put into crafting this law, it appears that it, too, will be headed for the ash heap of unconstitutional legislation. In the meantime, the ESA is becoming more proactive about the sale of M-rated games to minors; Game Politics.com reports that the group is announcing a new "Commitment to Parents" initiative to be unveiled tomorrow. At the forefront of the initiative is an effort to "enhance compliance with store policies regarding the sale of Mature-rated video games."
If the Louisiana law is overturned as expected, it will strengthen the video game industry’s position, especially if the courts rule that the Miller test cannot be applied to depicitions of violence in video games. In a perfect world, that would mark the end of ill-fated legislation. Unfortunately, where politics is involved and there are points to be scored with key constituencies, chances are good that we’ll be revisiting the topic again before long.