By: William Jackson
GiN legal affairs editor
A federal judge on Thursday ruled that a Washington state law restricting sale of some violent video games to minors is unconstitutional, saying it violated First Amendment rights of free speech.
Judge Robert S. Lasnik of the U.S. District Court for the Western District of Washington found that the games were entitled to the full protection of the First Amendment and that state failed to prove that law would effectively serve any legitimate state interests.
Lasnik granted a motion for summary judgment sought by a number of software and video game retailers associations, permanently enjoining enforcement of the law.
The Entertainment Software Association, one of the defendants, was pleased with the decision.
"While we share the state's goal of making sure children don't have access to inappropriate games, the answer isn't to undermine the constitution," said ESA president Douglas Lowenstein.
ESA advocates a voluntary rating scheme, such as that by the Entertainment Software Rating Board, for controlling access to controversial games.
The Washington law prohibited sale to minors of "video or computer games that contain realistic or photographic-like depictions of aggressive conflict in which the player kills, injures or otherwise causes physical harm to a human form in the game who is depicted by dress or other recognizable symbols, as a public law enforcement officer."
The state argued that the games did not qualify as protected speech under the First Amendment because they were obscene. But the judge ruled that the Supreme Court has consistently defined obscenity as referring only to sexual material and declined to expand that definition.
Lasnik also found that the law was poorly constructed. It applied to depictions of any violence against law enforcement officers, but not to even the most offensive violence against others.
The state also refused to identify specifically what types of games would be restricted, creating an impermissible level of uncertainty about enforcement.
"Would a game built around The Simpsons or the Looney Tunes characters be ‘realistic' enough to trigger the Act," the judge asked in his decision. "Is the level of conflict represented in spoofs like the Dukes of Hazard Sufficiently ‘aggressive?' Do the Roman centurions of Age of Empires, the enemy officers depicted in Splinter Cell, or the conquering forces of Freedom Fighters qualify as ‘public law enforcement officers?' When pressed at oral argument, defense counsel was unable to determine whether firefighters were ‘public law enforcement officers.'"
The judge also rejected arguments that restricting video games served a state interest by helping to curb antisocial and violent behavior. Studies were presented on both sides of the issue, but the judge concluded that the current state of research could not support a causal relationship between violent games and violent behavior.
Although Lowenstein called the decision a "sweeping victory," the judge also was critical of the games, referring at one point to Grand Theft Auto III and Postal II as "filth."
"That is not to say that the video games presented to the Court are not objectionable," Lasnik wrote. "To the contrary, many of them promote hateful stereotypes and portray levels of violence and degradation that are repulsive."
Lasnik outlined a three-pronged test that legislation would have to meet in restricting games with non-sexual content:
Does the regulation cover only the type of depraved or extreme acts of violence that violate community norms and prompted the legislature to act?
Does the regulation prohibit depictions of extreme violence against all innocent victims, regardless of their viewpoint or status?
Do the social scientific studies support the legislative findings at issue?