CTA can't ban game ads - Judge

Entertainment Software Association wins preliminary injunction against Chicago Transit Authority over policy prohibiting promotion of M- or AO-rated titles.

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A district court judge on Thursday told the Chicago Transit Authority it could not refuse to carry ads for mature games, granting the Entertainment Software Association's request for a preliminary injunction against the metropolitan transportation system. In a 22-page ruling, US District Court Judge Rebecca R. Pallmeyer said the gaming industry lobby is likely to prevail in its assertion that a policy prohibiting ads for M- or AO-rated games is an unconstitutional abridgement of free speech.

A final ruling hasn't been issued yet, but a judge is finding a lot to agree with in the ESA's case against the CTA.
A final ruling hasn't been issued yet, but a judge is finding a lot to agree with in the ESA's case against the CTA.

The policy was adopted last January, in response to a minor controversy. In the lead-up to Grand Theft Auto IV's April 2008 debut on the Xbox 360 and PlayStation 3, a Chicago news channel reported on a series of ads for the open-world action game appearing on public transit buildings and buses. The CTA pulled the ads, fearful of public outcry, and in response, GTAIV publisher Take-Two Interactive sued the transit authority. The suit was eventually settled with an agreement for the CTA to rerun the ads later that year.

The CTA adopted its current game-specific advertising policy on January 1, 2009, and the ESA filed suit to have that guideline declared unconstitutional the following July. In its argument, the ESA noted that CTA buses have carried potentially disagreeable advertising many times before, including advertisements for an atheism advocacy group's campaign against organized religion and "Puppetry of the Penis," an experimental theater production.

The judge was particularly skeptical of the CTA's decision to single out games for more stringent advertising guidelines than its fellow entertainment media.

"Video games consist of a tiny fraction of the media violence to which children are exposed," the judge wrote. "Yet the CTA's ordinance singles out only video game advertisements for regulation, while granting carte blanche to a wide range of advertisements for other forms of media that may depict similar violence and may be similarly rated for age appropriateness. If an advertiser sought to place identical advertisements for an R-rated film and an M-rated video game of the same name--both with the same characters, based on the same storyline, and containing the same depictions of violence--the ad for the video game would be banned while the ad for the film would be displayed."

In defending its policy, the CTA said the government had a compelling interest in limiting speech related to M-rated and AO-rated game ads due to a correlation between youth aggression and violent games. That's the same justification used by states like California, Illinois, and Louisiana in their heretofore unsuccessful bids to establish state laws to keep violent games out of children's hands.

The ESA hailed the preliminary injunction, with the organization's president and CEO Michael Gallagher issuing a statement calling it a victory for the gaming industry, the people of Chicago, and the First Amendment itself.

"It is our hope that the CTA sees the futility of pursuing this case further," Gallagher said. "To do so will waste taxpayer money and government resources. Chicago deserves better and we look forward to bringing this matter to an end."

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