Judge rules video games are not speech
A federal judge said local governments should be able to limit children's access to violent or sexually explicit video games, saying they're not constitutionally protected forms of speech.
Senior U.S. District Judge Stephen Limbaugh rejected a request by a video game industry group to throw out a St. Louis County ordinance regulating access to arcade and home video games.
The ordinance, passed in 2000, would require children under 17 to have parental consent before they can buy violent or sexually explicit video games or play similar arcade games. The council has suspended implementation of the ordinance until July 1.
The video game group called the ruling wrong on the facts and the law.
"The decision is clearly in conflict with virtually every other federal court decision on this and related issues," group President Doug Lowenstein said in a statement. "We're confident that our position will be sustained on appeal."
Limbaugh said he reviewed four different video games and found "no conveyance of ideas, expression, or anything else that could possibly amount to speech. The court finds that video games have more in common with board games and sports than they do with motion pictures."
Limbaugh said the county has a compelling interest in protecting the physical and emotional health of its children and assisting parents as guardians of their children's well-being.
But according to newsbytes.com, a legal expert recently stated that this ruling will be overturned on appeal.
"I predict it won't withstand scrutiny on appeal - certainly not if it goes to the Supreme Court, but probably not the Eighth Circuit," said Randy Turk.
Turk, a partner in the firm of Baker Botts in Washington, D.C., specializes in media law. He is not involved in the case.
"It is a fairly interesting case, but Judge Limbaugh's decision will not survive on appeal," said Turk. "For one thing, the finding that video games are not protected speech will not survive."
In reaching its finding that video games are not speech, Turk said the court relied on cases from the early 1980s when video games were simplistic, such as "Pong" and "Pac-Man."
"These cases were heard before video games became extremely elaborate," he said. "Many of these games can be played for hours or even days. You pick a character and develop it. There is an elaborate storyline that is like reading a story, but you are in it at the same time."
"The idea (that) what is going on in the medium is without First Amendment protection is just not where the courts want to go," Turk continued. "The Supreme Court will find video games are expressive activity protected by the First Amendment."
The court tried to protect its ruling by not relying simply on the finding that video games are not speech, Turk said. Limbaugh said in his decision that even if video games are protected speech, the ordinance passes scrutiny.
According to Turk, the proper analysis of the ordinance would examine if St. Louis County has a "compelling interest," such that the statute is narrowly tailored to address this interest. He said the restriction is "content-based," and such restrictions are reviewed under strict analysis.
"I think the Eighth Circuit will strike this down based on the 'compelling interest,'" Turk predicted.
In support of the ordinance - and evidence of its compelling interest in keeping minors under age 17 from playing video games with violence in them, St. Louis County cited studies that linked these games with aggressive behavior.
"These studies showed aggression, but there was no link to crimes and no finding of damage to minors from having played games," said Turk. "There is no evidence on the record that video games, even violent video games, are damaging to players or to anyone else."
"Therefore, the evidence won't sustain the County's claim that it has a compelling interest," he added.
St. Louis County modeled its ordinance after one in Indianapolis. That ordinance has been invalidated by a federal appeals court in Chicago.
SOURCES: USA Today, newsbytes.com