Entm't Software Ass'n v. Granholm

Name: Entm't Software Ass'n v. Granholm

Cite: 426 F.Supp.2d 646 (E.D. Mich. 2006)

URL's to Opinion:

Lexis: Entm't Software Ass'n v. Granholm, No. 05-73634, 2006 U.S. Dist. LEXIS 24733 (E.D. Mich. Mar. 31, 2006)

• Court: United States District Court for the Eastern District of Michigan

• Procedural Posture: Creators, publishers, and distributors of video games (hereinafter "plaintiffs") filed a motion for preliminary injunction against the Governor (Jennifer Granholm), the Attorney General, and a County Prosecutor of Michigan (hereinafter "defendants") to enjoin the enforcement of 2005 Mich. Public Act 108. The court granted a preliminary injunction enjoining defendants' enforcement of the act prior to its taking effect. Plaintiffs then filed a (Fed. R. Civ. P. 56(c)) motion for summary judgment to permanently enjoin the act as unconstitutional; defendants filed a cross-motion for summary judgment.

• Overview: Plaintiffs sought to invalidate a Michigan law criminalizing the distribution of "ultra-violent" video games to children under the age of 17 (2005 Mich. Public Act 108). Plaintiffs argued that the act was unconstitutional under the First and Fourteenth Amendments; defendants argued that the act was narrowly tailored to promote a compelling state interest.

• Background and Description: On September 14, 2005, the governor of Michigan signed into law a statute imposing civil and criminal penalties for a person who "knowingly disseminate to a minor an ultra-violent explicit video game that is harmful to minors." Plaintiffs argued that video games are constitutionally protected free speech; defendants argued that although video games are a form of creative expression, the interactive functional element unique to video games (i.e., the user's ability to "control" the game characters) should not be considered protective speech. Additionally, defendants argued that should the court find video games to be protected free speech, the obscenity test announced in Ginsberg v. New York, 390 U.S. 629 (1968) should determine the applicable level of scrutiny. In Ginsberg, the Court allowed the restriction of minors' access to sexually explicit material, if shown to be "disgusting or degrading."

• Holding: Video games constitute creative, expressive free speech inseparable from their interactive functional elements, and as such, are protected by the First Amendment. Thus, the content-based regulation of 2005 Mich. Public Act 108 was presumptively invalid and subject to strict scrutiny. The state failed to show substantial evidence to support its claim linking ultra-violent video games to violent behavior in children, as video games represent only a "tiny fraction of the media violence to which American children are exposed." Amer. Amusement Mach. Ass'n v. Kendrick, 244 F. 3d 572 at 579 (7th Cir. 2001). Video games might just as easily reduce violent behavior in children by providing them an outlet from which to vent their aggression. Furthermore, the act was not narrowly tailored to the state's interest because the law made retailers responsible for determining which games were ultra-violent, which would likely result in them refusing to carry any game with potentially ultra-violent content in order to avoid liability under the act (thereby having a "chilling effect"), thus denying constitutionally protected free speech to adults as well. The state had not considered less restrictive means to achieving its desired end, such as an advertising campaign to educate parents about the Entertainment Software Ratings Board's (ESRB) rating system. Finally, the act was unconstitutionally vague (in violation of the Fourteenth Amendment) in defining the type of violence regulated, in light of the difficulty in defining concepts such as "human beings" in the fantastical world of video games. The Ginsberg Test, having only been applied to sexually explicit material, was inapplicable to the ultra-violent language of the act. Therefore, the act was permanently enjoined as unconstitutional.

• Other Discusion: In this author's opinion, a more reasonable approach would have been for Michigan to criminalize the sale of video games bearing the "Mature" (ages 17+) rating to children under the age of 17, rather than defining the parameters of the act based on broad definitional language. Since the software industry itself sets these standards, such a law would likely go unchallenged by the industry (but perhaps not by the consumer). Of course, the end result under such an approach might be that the ESRB would simply lower its rating standards. However, in doing so, the industry's "less restrictive means" argument would be diminished. Furthermore, market forces and the software publishers' accountability to public outcry are probably better at setting these standards than broad governmental regulation (intended as a substitute for parental judgment and supervision) and retailers left to "guess" as to which games are too violent to stock on their shelves.