Michigan game law temporarily blocked

District Court judge prevents ban on sales of violent games to minors from taking effect, says the act is "unlikely to survive strict scrutiny."

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The Entertainment Software Association heralded a small victory in court today, as US District Court judge George C. Steeh granted the ESA's request to prevent a Michigan law banning the sale of "ultraviolent" games to minors from taking effect.

The law, which was signed by Democratic Michigan Governor Jennifer M. Granholm in September, would impose fines of up to $5,000 on anyone caught selling or giving violent games to minors. Repeat violators would be subject to up to 93 days of jail time and $40,000 fines per violation.

Although he only issued a preliminary injunction to block the law, and the court battle to decide the law's fate is yet to come, Steeh's explanation of his judgment can only be seen as encouraging to the ESA's case. Steeh said the law would be problematic in practice and was "unlikely to survive strict scrutiny."

In granting the motion, Steeh listed four criteria that have to be considered when ruling on an injunction: whether the party asking for it is likely to prevail on the merits of its case; whether that party would suffer an irreparable injury if the court does not grant a preliminary injunction; whether a preliminary injunction would cause substantial harm to others; and whether a preliminary injunction would be in the public interest.

In his analysis, Steeh went down the list, siding with the ESA on each point. He deferred to the Sixth Circuit Court's ruling that games were protected as free speech under the First Amendment. That was the court's finding when it threw out a lawsuit brought against game manufacturers after a 1997 school shooting in Paducah, Kentucky.

Next he brushed aside the state's scientific research on the subject, stating, "A cursory review of the research relied upon by the state shows that it is unlikely that the State can demonstrate a compelling interest in preventing a perceived 'harm.'" The more apparent harm to Steeh was the irreparable injury associated with losing First Amendment freedoms, even for the limited period of time from the time the law takes effect, to the time a judgment is handed down on the case.

Steeh also saw problems in enforcement of the law, as retailers could not be expected to know what is and isn't covered by the state's definition of ultraviolence. "Without wholesale, indiscriminate refusals to sell video games to minors by store operators it appears impossible to protect sellers from prosecution," he wrote.

ESA president Douglas Lowenstein issued a statement after the judgment, heralding the ruling and asking Granholm to stop her opposition to the lawsuit.

"Rather than continuing to play politics and pursuing this case to its inevitable defeat, further wasting Michigan taxpayers' dollars along the way, we hope the state will start to join us in a common effort to take steps that actually help parents raise their kids in a healthy and safe way," Lowenstein said.

Currently the ESA is involved in lawsuits to overturn game restriction laws in Illinois, California, and Michigan.

[UPDATE]: Interactive Entertainment Merchants Association president Hal Halpin has issued a statement on the ruling echoing Lowenstein's sentiments.

"It is unfortunate that valuable time has been wasted with political opportunism rather than working proactively with the industry to educate consumers," Halpin wrote. "Perhaps with this knowledge and foreshadowing, we will cease squandering resources and focus our collective efforts on working together."

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