ESA gets prelim injunction in Louisiana

Judge rules against the state on nearly every argument, says that the industry is likely to succeed in its attempt to have the law declared unconstitutional.


A federal judge yesterday granted an industry trade group's request for a preliminary injunction preventing a Louisiana law from going into effect, according to court records.

Signed in June, the law seeks to limit minors' access to violent games using the framework of existing obscenity statutes. It was authored by state representative Roy Burrell (D-District 2) with the help of controversial lawyer Jack Thompson. According to the text of the law, it would be illegal to sell, rent, or lease a game to a minor if it meets the following three conditions:

(1) The average person, applying contemporary community standards, would find that the video or computer game, taken as a whole, appeals to the minor's morbid interest in violence.
(2) The game depicts violence in a manner patently offensive to prevailing standards in the adult community with respect to what is suitable for minors.
(3) The game, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

The Entertainment Software Association (ESA) quickly filed suit after the passing of the law, and US District Judge James J. Brady issued a temporary restraining order preventing authorities from enforcing it until he could rule on the ESA's request for a preliminary injunction. Judge Brady handed down his ruling on that request yesterday, and it came down squarely in the industry's favor.

In tackling the issue, Judge Brady referenced six other court cases where judges have said that games count as protected free speech, and added his own determination of that to the stack. Because the judge ruled that games are protected free speech, the state has to meet a "strict scrutiny standard" if it wants the law to be upheld. Under that standard, the state has to have a compelling interest in passing the law, prove that the law would serve that interest, and ensure that it is as limited in scope as possible but will still get the job done.

The state argued that its interest was in protecting minors from "physical, psychological, and financial harm." On the first one, Judge Brady ruled that the physical harm wasn't an issue because while the state would want to curb violent behavior, even violent games aren't likely to incite immediate violent behavior or lawlessness.

As for the second point, the judge agreed with the industry's assertion that protecting minors from psychological harm amounts to "impermissible thought control," a reference to a Supreme Court opinion that noted "First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end." In the new ruling, Judge Brady found that "the State may not restrict video game expression merely because it dislikes the way that expression shapes an individual's thoughts and attitudes."

He did not address the state's interest in protecting minors from "financial harm."

The state also failed to convince the judge that it had a compelling interest in limiting minors' access to violent games, dismissing much of the scientific evidence presented in support of that notion.

"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," the judge ruled. "Much of the 'evidence' presented consisted of newspaper articles on the evils of video games and several articles that relate information about studies on video games and violence or articles on the studies themselves."

As for the law being narrowly tailored to advance the state's interest, Judge Brady didn't buy that argument, either. He noted that the government admitted games made up only a tiny fraction of the violent media out there, but wondered why they weren't trying to regulate those media as well. He cited previous judges who ruled that such underinclusiveness undermines the state's argument that the law advances its interest, and noted that under the Louisiana law, a minor would not be able to buy a game rated M for Mature, but could legally purchase the book or film on which it is based.

ESA president Doug Lowenstein said he was pleased with the decision, but clearly not with the actions of Louisiana lawmakers.

"In the post-Katrina era, voters should be outraged that the Legislature and Governor wasted their tax dollars on this ill-fated attack on video games," Lowenstein said. "The irony is that only a year ago the state enacted legislation to give video game companies tax credits to locate in the state, only to turn around and create an utterly inhospitable environment."

The Entertainment Merchants Association (EMA) offered its own take on the ruling. EMA president Bo Anderson said his organization was "gratified," adding, "We also hope that this ruling will cause the State of Louisiana to rethink its position and abandon its strident defense of this misguided and poorly drafted law. A less wasteful approach for the State and its citizens would be for the State to encourage parents to utilize retailers as a source of information and make effective use of the industry's voluntary game ratings system."

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