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.