Denial of First Amendment protection leaves IDSA down, but not out.

A federal judge's refusal to grant First Amendment protection to violent video games has foiled the Interactive Digital Software Association's first effort to block a St. Louis ordinance restricting access to the games, but has not stopped the fight.

"The matter is still in litigation and we're considering our options for moving forward," said IDSA president Douglas Lowenstein.

Judge Stephen N. Limbaugh on April 19 denied IDSA's motion for a summary judgment that the ordinance is an unconstitutional infringement of First Amendment freedom of expression. The judge, of the U.S. District Court for Eastern Missouri, ruled the games he examined did not meet standards for meaningful expression.

"It appears to the Court if an entirely new medium is being given First Amendment protection, there does need to be at least some type of communication of ideas in that medium," Limbaugh wrote. "The Court reviewed four different video games and found no conveyance of ideas, expression, or anything else that could possibly amount to speech."

He also ruled that the ordinance being challenged was not unconstitutionally broad or vague, which in effect made the issue of whether games are constitutionally protected speech moot.

Although the ruling denied a summary judgment that would have disposed of the ordinance without a trial, it can be appealed through the circuit and appellate courts and the merits of the lawsuit still can be heard at trial. Lowenstein said he was disappointed in the ruling and called it "wrong on the facts and on the law."

"The fact that this one lower court judge has ruled as he did does not reflect on the ultimate strength and merit of our case," he said. "Virtually every other court that has looked at this issue has supported our position and we expect to be successful on appeal."

The St. Louis County ordinance, passed in October 2000, is similar to the Indianapolis ordinance restricting access to violent games. Citing school shootings in Columbine, Colo., Smithboro, Ark., and Paducah, Ky., as evidence of the harmful influence of the games on minors, the county prohibited sale or rental of home video games rated M or AO by the Entertainment Software Review Board to persons under 17 without parental consent. Similar restrictions were placed on access to arcade games rated Red by the American Amusement Machine Association. The law goes into effect in July.

The bar for IDSA's summary judgment was set high. The court "must review the facts in a light most favorable to the party opposing the motion," and "is required to resolve all conflicts of evidence in favor of the nonmoving party," the judge said. Limbaugh also took exception to some court findings in a similar case from Indianapolis that supported the game industry's position.

"Mr. Lowenstein attempted to explain the process of creating video games and included some examples, however, the court did not get to view the final product of these games," Limbaugh wrote. "Plaintiffs claim that the final product contains ‘extensive plot and character development'," and provided several video game scripts. However, "the only video games given to the court were those presented by defendants, and the court simply did not find the ‘extensive plot and character development' referred to."

Limbaugh's decision cites 20-year-old rulings that video games are simple entertainment "with no informational element." The state of the art has changed dramatically in two decades, and in the Indianapolis case the Seventh Circuit Court affirmed that at least some video games are "speech" within the meaning of the First Amendment.

However, "this court has difficulty accepting that some video games do contain expression while others do not, and finds that this is a dangerous path to follow," Limbaugh wrote. His solution was to deny protection to all.

The games reviewed were "The Resident of Evil Creek," "Mortal Combat," "DOOM" and "Fear Effect." Limbaugh's position was that a game is a game, be it a baseball game, a board game or a video game. "The court has trouble seeing how an ordinary game with no First Amendment protection can suddenly become expressive when technology is used to present it in video form," he wrote.

Lowenstein defended the decision not to provide finished games to support IDSA's arguments.

"We didn't submit additional game footage because the material provided to the court was compelling on its own and because recent courts that have looked at this issue-including those in the Columbine and Paducah cases-have found video games to be protected speech without looking at any games," he said.

The judge's finding that the ordinance was narrowly crafted to advance a compelling state interest, and thus allowing regulation of protected speech, made the issue of First Amendment protection irrelevant, Lowenstein said.

"In short, nothing we could have done on the speech issue would have changed the outcome of this case at the district court level," he said.