United States District Court, N.D. California, San Jose Division
December 21, 2005.
VIDEO SOFTWARE DEALERS ASSOCIATION, and ENTERTAINMENT SOFTWARE ASSOCIATION, Plaintiffs,
ARNOLD SCHWARZENEGGER, in his official capacity as Governor of the State of California; BILL LOCKYER, in his official capacity as Attorney General of the State of California; GEORGE KENNEDY, in his official capacity as Santa Clara County District Attorney; RICHARD DOYLE, in his official capacity as City Attorney for the City of San Jose; and ANN MILLER RAVEL, in her official capacity as County Counsel for the County of Santa Clara, Defendants.
The opinion of the court was delivered by: RONALD WHYTE, District Judge
ORDER GRANTING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
[Re Docket No. 5, 27, 28, 41, 48]
Plaintiffs move for a preliminary injunction prohibiting
California state and local officials from enforcing a recently
passed law, effective January 1, 2006, which requires violent
video games to be labeled and prohibits the rental or sale of
those games to minors ("Act"). The Act includes a narrow definition of "violent video games," requires specified
labeling of such games and imposes a civil penalty of up to
$1,000 for violations. For the reasons given below, the court
grants the plaintiffs' motion for a preliminary injunction.
The plaintiffs are the Video Software Dealers Association
("VSDA") and the Entertainment Software Association ("ESA"), two
groups who describe themselves as associations of companies in
the video game industry. The defendants are California Governor
Arnold Schwarzenegger, California Attorney General Bill Lockyer,
Santa Clara County District Attorney George Kennedy, Santa Clara
County Counsel Ann Ravel, and San José City Attorney Richard
Doyle. Kennedy and Ravel ("County defendants") joined the
opposition filed by Schwarzenegger and Lockyer ("State
defendants"), so the court can generally consider the defendants
as a group for the purposes of the plaintiffs' motion for a
On October 7, 2005, Schwarzenegger signed into law Assembly
Bill 1179, which is to take effect on January 1, 2006, as new
California Civil Code §§ 1746-1746.5. The Act will restrict the
sale and rental of certain violent video games to minors. Id. §
1746.1(a). The Act contains a two-part definition of a "violent
(d)(1) "Violent video game" means a video game in
which the range of options available to a player
includes killing, maiming, dismembering, or sexually
assaulting an image of a human being, if those acts
are depicted in the game in a manner that does either
of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a
whole, would find appeals to a deviant or morbid
interest of minors.
(ii) It is patently offensive to prevailing standards
in the community as to what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious
literary, artistic, political, or scientific value
(B) Enables the player to virtually inflict serious
injury upon images of human beings or characters with
substantially human characteristics in a manner which is especially heinous, cruel, or
depraved in that it involves torture or serious
physical abuse to the victim.
(2) For purposes of this subdivision, the following
(A) "Cruel" means that the player intends to
virtually inflict a high degree of pain by torture or
serious physical abuse of the victim in addition to
killing the victim.
(B) "Depraved" means that the player relishes the
virtual killing or shows indifference to the
suffering of the victim, as evidenced by torture or
serious physical abuse of the victim.
(C) "Heinous" means shockingly atrocious. For the
killing depicted in a video game to be heinous, it
must involve additional acts of torture or serious
physical abuse of the victim as set apart from other
(D) "Serious physical abuse" means a significant or
considerable amount of injury or damage to the
victim's body which involves a substantial risk of
death, unconsciousness, extreme physical pain,
substantial disfigurement, or substantial impairment
of the function of a bodily member, organ, or mental
faculty. Serious physical abuse, unlike torture, does
not require that the victim be conscious of the abuse
at the time it is inflicted. However, the player must
specifically intend the abuse apart from the killing.
(E) "Torture" includes mental as well as physical
abuse of the victim. In either case, the virtual
victim must be conscious of the abuse at the time it
is inflicted; and the player must specifically intend
to virtually inflict severe mental or physical pain
or suffering upon the victim, apart from killing the
(3) Pertinent factors in determining whether a
killing depicted in a video game is especially
heinous, cruel, or depraved include infliction of
gratuitous violence upon the victim beyond that
necessary to commit the killing, needless mutilation
of the victim's body, and helplessness of the victim.
Id. § 1746(d).
On October 17, 2005, the plaintiffs filed a complaint, and two
days later, a motion for a preliminary injunction, seeking to
prevent enforcement of this new law. The plaintiffs claim the Act
is unconstitutional and specifically assert that: (1) video games
are a form of expression protected by the First Amendment of the
U.S. Constitution, even for minors, (2) the Act's definition of
"violent video game" is unconstitutionally vague, and (3) the
labeling provisions of the Act run afoul of the First Amendment.
The State and County defendants assert that the Act is narrowly
tailored to further a compelling state interest, and that it is
neither impermissibly vague nor violative of the First Amendment. California is not the first state to attempt to limit minors'
access to video games. While the Ninth Circuit has yet to
consider the the legislature's ability to implement such
regulation, the Seventh and Eighth Circuits have found specific
ordiniances on the subject run afoul of the First Amendment. See
Am. Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572 (7th Cir.
2001); Interactive Digital Software Ass'n v. St. Louis County,
329 F.3d 954 (8th Cir. 2003). Several district courts have also
struck down similar ordinances. See Video Software Dealers Ass'n
v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004), Entm't
Software Ass'n v. Blagojevich, 2005 U.S. Dist. LEXIS 31100 (E.D.
Ill. Dec. 2, 2005) (granting permanent injunction); Entm't
Software Ass'n v. Granholm, 2005 WL 3008584 (E.D. Mich. Nov. 9,
2005) (granting preliminary injunction).*fn2
A. Standard for Preliminary Injunction
The decision to grant a preliminary injunction is within the
discretion of a district court. United States v. Peninsula
Communications, Inc., 287 F.3d 832, 839 (9th Cir. 2002). There
are two tests for determining whether a district court may grant
a preliminary injunction. Under the traditional test for granting
preliminary injunctive relief, the applicant must demonstrate:
"(1) a likelihood of success on the merits, (2) the possibility
of irreparable injury to plaintiff if the preliminary relief is
not granted, (3) a balance of hardships favoring the plaintiff,
and (4) advancement of the public interest (in certain cases)."
Dollar Rent A Car of Wash., Inc. v. Travelers Indem. Co.,
774 F.2d 1371, 1374 (9th Cir. 1985). Alternatively, the moving party
must show "that serious questions are raised and the balance of
hardships tips sharply in favor of the moving party." Stulbarg
Intern. Sales Co., Inc. v. John D. Brush and Co., Inc.,
240 F.3d 832, 839-40 (9th Cir. 2001). These alternative showings
"represent extremes of a single continuum, rather than two
separate tests." Clear Channel Outdoor Inc. v. City of Los
Angeles, 340 F.3d 810, 813 (9th Cir. 2003) (internal citation
and quotation marks omitted). B. Analysis of Preliminary Injunction Factors
1. Likelihood of Success on the Merits
First, the court considers the plaintiffs' claim that the Act
is unconstitutionally vague, as an impermissibly vague definition
of "violent video game" would leave nothing for the defendants to
enforce and render the Act unconstitutional as a whole.
The plaintiffs claim the Act is unconstitutional because it is
impermissibly vague. The Act's definition of "violent video game"
is a unique amalgam, but this alone does not make it
unconstitutionally vague. Section 1746(d)(1)(A) is essentially
the obscenity standard from Ginsberg v. New York, 390 U.S. 629
(1968), but directed towards depictions of violence instead of
depictions of nudity or sex. Section 1746(d)(1)(B) uses the
phrase "especially heinous, cruel, or depraved," which appears to
have been taken from Arizona's statutory list of aggravating
factors for considering whether to impose the death penalty.
See Ariz. Rev. Stat. § 13-703.F.6 (2005).*fn3 The
defendants submit that the definition under the Act is
"exceedingly narrow." State Opp'n at 18.
Although "we can never expect mathematical certainty from our
language," a restriction must be particularly clear if it "abuts
upon sensitive areas of basic First Amendment freedoms." Grayned
v. City of Rockford, 408 U.S. 104, 108 (1972) (parentheses
removed). This precision is required even for regulations
designed to protect children:
It is essential that legislation aimed at protecting
children from allegedly harmful expression no less
than legislation enacted with respect to adults be
clearly drawn and that the standards adopted be
reasonably precise so that those who are governed by
the law and those that administer it will understand
its meaning and application.
Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676
(1968) (ellipses omitted). No court has considered whether a
definition of "violent video game" identical to the one in the
Act is unconstitutionally vague, but courts have found a number
of other legislative enacted definitions impermissibly vague.
See Maleng, 325 F. Supp. 2d at 1190-91; Blagojevich 2005 U.S.
Dist. LEXIS 31100 at *66-70; see also Granholm, 2005 WL 3008584
at *3-4. The plaintiffs' primary argument here is that the Act's
definitions are ill-suited to a medium divorced from everyday
reality. Video game characters can deviate from human norms to
greater or lesser degrees, and the plaintiffs claim this makes
the second prong of the definition, which refers to "images of
human beings or characters with substantially human
characteristics," impossible for a reasonable person to apply.
However, the plaintiffs overlook the limitation contained in §
1746(d)(1) of the Act, which applies to both prongs of the
definition: "`Violent video game' means a video game in which the
range of options available to a player includes killing, maiming,
dismembering, or sexually assaulting an image of a human being,
if those acts are depicted in the game in a manner that does
either of the following." (emphasis added). The language with
which plaintiffs take issue, "images of human beings or
characters with substantially human characteristics," thus only
comes into play once the acts depicted have already been
determined to be "killing, maiming, dismembering, or sexually
assaulting an image of a human being." This does make the phrase
"upon images of human beings or characters with substantially
human characteristics" in the second prong superfluous, but
"assaulting an image of a human being" appears, nevertheless, to
be the express requirement of the statute as written. Thus, the
Act restricts only certain forms of violence against "an image of
a human being;" there are no restrictions on violence against
The plaintiffs also complain that "the Act generally uses the
word `includes' to modify the specific examples of behavior
covered by the definition. This open-ended definition, say
plaintiffs, does not confine the range of depictions that trigger
the `violent video game label.'" Mot. at 17. Contrary to
plaintiffs' assertion, the Act uses "includes" only once, in §
1746(d)(2)(E): "`Torture' includes mental as well as physical
abuse of the victim. In either case. . . ." "Either," according
to WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY, means "being the
one or the other of two." Any open-endedness introduced by
"includes" is immediately limited by "either" in the next
sentence. Torture, for the purposes of the Act, is either mental
or physical abuse of a victim.
The Act also uses "include" once, in § 1746(d)(3): "Pertinent
factors in determining whether a killing depicted in a video game
is especially heinous, cruel, or depraved include infliction of
gratuitous violence upon the victim beyond that necessary to
commit the killing, needless mutilation of the victim's body, and helplessness of the victim." (emphasis
added). While this does not limit what may be considered to
determine whether a killing is "especially heinous, cruel, or
depraved," "heinous," "cruel," and "depraved" are each cabined by
the definitions of those terms in § 1746(d)(2)(A)-(C).
The plaintiffs further object that other parts of the
definition, such as "virtually inflict," "consciousness" of the
"virtual victim," and "high degree of pain," have no
readily-ascertainable meaning in the context of a video game.
While such semantic considerations do show the difficulty of
using language with "mathematical certainty," they do not show
the Act is unconstitutionally vague. It should be readily
apparent to an ordinary person that with such language the Act
was intended to cover games in which it looks like a player can
harm people in the ways described.
The parties submitted to the court video games and videotapes
of video games being played. See Jimenez Decl., Exs. A, B;
Waldman Decl., Exs. A, B; Chan Decl., Exs. A, B; Carraway Decl.,
Exs. A, B; Borasi Decl., Exs. A, B; Rosen Decl., Exs. A, B;
Morazzini Decl., Ex. A. Before oral argument, the court asked the
parties to attempt to apply each prong of the Act's definition of
"violent video game" to seven of the games included in the
parties' submissions. The plaintiffs, somewhat predictably,
claimed that the Act was too vague to hazard a guess as to which
games were covered and which games were not. The defendants were
not much more helpful. The State defendants asserted that Postal
II would be covered by the Act. They also pointed out that
another of the games was discussed in a declaration the
plaintiffs submitted; one of the plaintiffs' witnesses stated
that Medal of Honor: Frontline "may" be covered by the Act.
See Price Decl. ¶ 19.
Despite the parties' reluctance to attempt to apply the Act's
definition of "violent video game" to the games submitted, the
court will nonetheless analyze two of the games as part of its
inquiry into whether the Act is impermissibly vague. As the
following analyses show, the Act should be simple enough for an
ordinary person to apply to the games submitted to the
Postal II involves a character who has apparently "gone
postal" and decided to kill everyone he encounters. Morazzini
Decl., Ex. A. The game involves shooting both armed opponents,
such as police officers, and unarmed people, such as schoolgirls. Id.
Girls attacked with a shovel will beg for mercy; the player can
be merciless and decapitate them. Id. People shot in the leg
will fall down and crawl; the player can then pour gasoline over
them, set them on fire, and urinate on them. Id. The player's
character makes sardonic comments during all this; for example,
urinating on someone elicits the comment "Now the flowers will
The court agrees with the State defendants that Postal II
would fall within the Act's definition of "violent video game".
First, "the range of options available to a player includes
killing, maiming, dismembering, or sexually assaulting an image
of a human being," as required by § 1746(d). The game also meets
both prongs of the definition (though either alone is
sufficient). Shooting schoolgirls in the knee and then setting
them afire appeals to the deviant interests of minors, satisfying
§ 1746(d)(1)(A)(i). Whether something is "patently offensive"
under community standards is a question of fact, see Reno v.
ACLU, 521 U.S. 844, 873-74 (1997), but the court can easily
imagine that Postal II "is patently offensive to the standards"
of some communities "as to what is suitable for minors,"
satisfying § 1746(d)(1)(A)(ii). The game appears to have no
"literary, artistic, political, or scientific value for minors,"
satisfying § 1746(d)(1)(A)(iii). The game thus is a "violent
video game" under the first definition in the Act. Furthermore,
shooting schoolgirls in the kneecap is inflicting serious injury,
and then setting them afire and urinating on them as they crawl
about is especially cruel and depraved (as those terms are
defined in the Act) and constitutes torture. This satisfies §
Conversely, Full Spectrum Warrior would not be a "violent
video game" under the Act. The player controls two four-man U.S.
Army squads fighting in an Afghanistan-like urban environment.
Carraway Decl., Exs. A, B. The squad members have personalities;
they complain about their mission and use profanity when they
come under heavy fire. Id. Careful planning is necessary to
succeed; much of the game is spent using one squad to distract an
enemy while the other squad circles around him to get a good
shot. Id. Enemies are usually shot at a distance, and they fall
down bloodlessly when shot or killed with grenades. Id.
In Full Spectrum Warrior, "the range of options available to
a player includes killing, maiming, dismembering, or sexually
assaulting an image of a human being," as required by § 1746(d). However, it would be hard to say that U.S. military
operations appeal to the deviant or morbid interests of minors.
Also, the game has some political value. It thus does not satisfy
the first part of the Act's definition, § 1746(d)(1)(A). Also,
there is no way to kill enemies that is especially heinous,
cruel, or depraved; killings are generally at a distance and
fairly impersonal. This does not satisfy the second part of the
Act's definition, § 1746(d)(1)(B).
The plaintiffs have not shown they are likely to succeed on
their claim that the Act is unconstitutionally vague.
b. First Amendment
The court next considers the plaintiffs' claim that the Act
runs afoul of the First Amendment. Because the statutes and
ordinances at issue in Kendrick, Interactive Digital,
Blagojevich, and Granholm are not materially distinguishable
from the Act, the court finds that the plaintiffs are likely to
succeed on the merits or at least that serious questions are
raised in this portion of their case.
i. Survey of Prior Cases
As several courts have recently considered to what extent the
First Amendment allows governments to limit minors' access to
video game violence, the court will summarize the relevant cases.
In Kendrick, the Seventh Circuit reversed a district court's
denial of a preliminary injunction against enforcement of a city
ordinance. 244 F.3d at 573-4, 580. This ordinance required
parents to accompany minors who wished to play video games
containing "graphic violence" in public places. Id. at 573.
Judge Richard Posner, writing for the panel, explored the
difference between sexual obscenity and violence. Id. at
574-76. Judge Posner did not explicitly select a standard of
review for the ordinance at issue, though he did state that the
city's grounds for promulgating it had to "be compelling and not
merely plausible." Id. at 576. He also expressed doubt that a
government could have a compelling interest in preventing minors
from playing violent video games. 244 F.3d at 576-79. Judge
Posner noted that the City had little data to compel a conclusion
that the games covered by the ordinance increased aggressive
behavior in minors. Id. at 578-79. Among the evidence was some
of the work of Craig Anderson. Id. at 578. Judge Posner
concluded that a preliminary injunction was appropriate because the ordinance's "conjectural"
benefits were outweighed by the risk of infringing on
First Amendment rights. Id. at 580.
In Interactive Digital, the Eighth Circuit reversed a
district court and ordered a permanent injunction against
enforcement of a county ordinance that forbade anyone to "sell,
rent, or make available graphically violent video games to
minors." 329 F.3d at 956. The court expressly held that the
ordinance should be analyzed using strict scrutiny, rejecting the
County's suggestion to use the less stringent standard from
Ginsberg. Id. at 958-60. The County presented a psychologist
who claimed that playing violent video games increased aggressive
thoughts and behavior, but the court found this testimony fell
short of the required "substantial supporting evidence" necessary
to justify the ordinance. Id. at 958-59.
In Maleng, Chief Judge Robert S. Lasnik of the Western
District of Washington ruled on cross-motions for summary
judgment that a Washington state statute violated the
First Amendment. 325 F. Supp. 2d at 1183, 1190. The statute at issue
forbade the distribution to minors of video games involving
violence against law enforcement personnel. Id. at 1190. The
court found that the obscenity standard from Ginsberg was
inappropriate because the statute did not cover sexually explicit
material, and instead applied strict scrutiny. Id. at 1185-86.
The court found that the State had not carried its burden of
proving that games covered by the statute caused aggressive
feelings or behavior. Id. at 1189. The court further ruled that
the statute was "both over-inclusive and under-inclusive" because
the set of games covered by the statute did not reflect the harms
the legislature sought to alleviate; the statute was therefore
not narrowly tailored. Id.
In Granholm, a district court preliminarily enjoined
enforcement of a statute that would prohibit distribution of
certain violent video games to minors. 2005 WL 3008584 at *1. The
statute applied only to games that satisfied both parts of a
two-part definition of "ultra-violent explicit video game;" one
of these parts was modeled on the statute upheld in Ginsberg.
2005 WL 3008584 at *1. The court ruled that the statute under
consideration, as a content-based restriction on expression, was
subject to strict scrutiny. Id. at 2. The court found that the
evidence considered by the legislature, including studies by
Anderson, were unlikely to be sufficient to "demonstrate a
compelling interest in preventing a perceived harm." Id. at *3
(quotation marks removed). The court found that the statute was not narrowly tailored and was likely to have a
chilling effect on adults' free expression because it would cause
video game creators to steer clear of the boundaries of the
statutory definition. Id.
Finally, in Blagojevich, a district court permanently
enjoined enforcement of an Illinois statute criminalizing the
sale or rental of certain violent video games to minors.
2005 U.S. Dist. LEXIS 31100 at *2-3, 7-8. The court interpreted
Kendrick as applying strict scrutiny and found that the statute
was "a content-based regulation subject to the strictest scrutiny
under the First Amendment." Id. at 52, 55. Among the
justifications for the statute were "preventing violent,
aggressive, and asocial behavior" and "preventing psychological
harm to minors." Id. at *53. The proffered evidence justifying
the statute included fourteen studies by Anderson. Id. at
*10-11. The court, after a trial, found Anderson's studies
unpersuasive, stating "that neither Dr. Anderson's testimony nor
his research establish a solid causal link between violent video
game exposure and aggressive thinking and behavior." Id. at
*24-25. The court was concerned that Anderson's research did not
establish a causal link between violent video games and violent
behavior, did not assess the significance of any link, and did
not compare video games to other forms of media violence to which
minors are exposed. Id. at *25-27.
The court in Blagojevich also considered the
constitutionality of a provision requiring violent games covered
by the statute to bear a two-square-inch label stating "18".
Id. at *7, 83. The court rejected the argument that the
labeling provision should be analyzed under the commercial speech
standard of Zauderer v. Office of Disciplinary Counsel,
471 U.S. 626 (1985). Id. at * 83-85. The court instead found the
labeling requirement to be constitutionally-impermissible
compelled speech under Riley v. National Federation of Blind,
Inc., 487 U.S. 781 (1988). Id. at *85-86.
ii. The California Statute
The Act will regulate video games, which, even though mere
entertainment, are nonetheless protected by the First Amendment.
See Interactive Digital, 329 F.3d at 957-58. Children "are
entitled to a significant measure of First Amendment protection."
Erznoznik v. City of Jacksonville, 422 U.S. 205, 212 (1975).
The Act seems primarily designed to restrict minors' access to a
class of particularly violent video games. As an initial matter, the parties dispute what analytical
framework the court should use to evaluate the Act. The
plaintiffs suggest that of Bradenburg v. Ohio, 395 U.S. 444
(1969). Under Brandenburg, a state may regulate expression it
fears will cause unlawful or violent behavior only if it can
prove the expression "is directed to inciting or producing
imminent lawless action and is likely to incite or produce" such
action. Id. at 447. The Act seems to be intended more to
prevent harm to minors than preventing minors from engaging in
real-world violence. See Cal. A.B. 1179 § 1.
The defendants claim the Act should be analyzed using the
Supreme Court's decision in Ginsberg v. New York, 390 U.S. 629
(1968). In Ginsberg, the Court allowed New York to restrict the
access of minors to material with nudity or sexual content, even
though such a restriction on adults would have been invalid.
Id. at 634-43. The New York statute forbade the sale of
material deemed "harmful to minors" to those under seventeen
years of age, and defined
"[h]armful to minors" [as] any description or
representation, in whatever form, of nudity, sexual
conduct, sexual excitement, or sadomasochistic abuse,
(i) predominantly appeals to the prurient, shameful
or morbid interest of minors, and
(ii) is patently offensive to prevailing standards in
the adult community as a whole with respect to what
is suitable material for minors, and
(iii) is utterly without redeeming social importance
Id. 646. The Court allowed the statute at issue in Ginsberg
to stand because the New York legislature had a rational basis
for limiting minors' access to such obscene material. Id. 643.
Neither the Supreme Court nor the Ninth Circuit has ever extended
the Ginsberg analysis beyond sexually-obscene material.
Maleng, 325 F. Supp. 2d at 1186. Nor, on the other hand, have
the plaintiffs shown that either the Supreme Court or the Ninth
Circuit has ever held that sexual obscenity represents a unique
category of expression that is the only category to which a state
may permissibly restrict minors' access without running afoul of
the First Amendment.
The defendants have been unable to explain why the deferential
standard of Ginsberg should also be used to analyze
California's attempt to limit minors' access to violent video
games. At oral argument, the County defendants expressed the view
that there are few constitutional boundaries to a state's power
to limit minors' access to expression that the State can
establish is harmful to minors. As examples, the County
defendants suggested that a state could regulate a minor's access
to games about embezzling, bomb building, and shoplifting, without
violating the First Amendment, if a causal connection with harm
to children could be established. No court has previously
endorsed such a limited view of minors' First Amendment right.
The prevailing view, and the one this court will follow, is that
limitations on a minor's access to violent expression are subject
to strict scrutiny. However, even under strict scrutiny analysis,
a court must consider the potential harm to a child that is being
addressed by any legislation that limits a child's access to
"Content-based regulations are presumptively invalid." R.A.V.
v. City of St. Paul, 505 U.S. 377, 382 (1992). A state may limit
expression based on content only if the state (1) has a
compelling interest and (2) "chooses the least restrictive means
to further the articulated interest." Sable Communications of
Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989). "[T]here is a
compelling interest in protecting the physical and psychological
well-being of minors." Id. The Seventh Circuit in Kendrick
nevertheless expressed doubt that government could have a
compelling interest in preventing minors from playing violent
video games. 244 F.3d at 576-79. Judge Posner, writing for the
panel, stated that "shield[ing] children right up to the age of
18 from exposure to violent descriptions and images would not
only be quixotic, but deforming; it would leave them unequipped
to cope with the world as we know it." Id. at 577. It is
uncertain that even if a causal link exists between violent video
games and violent behavior, the First Amendment allows a state to
restrict access to violent video games, even for those under
eighteen years of age.
Also, a state "must demonstrate that the recited harms are
real, not merely conjectural, and that the regulation will in
fact alleviate these harms in a direct and material way." Turner
Broadcasting Sys., Inc. v. F.C.C., 512 U.S. 664, 622 (1994). The
State defendants point to a four-and-a-half-page bibliography as
compelling evidence the California legislature considered when
passing the Act. See Notification of Manual Filing, App. A at
14-18. This bibliography lists two pages of articles by Craig
Anderson dealing with the relationship between violence and video
games. Id. at 14-16. (It also lists material on the
questionable constitutionality of restricting minors' access to violent video games, id. at 14,*fn5 18,*fn6 and
websites for interest groups, id. at 17,*fn7 18.)*fn8
The court in Blagojevich, after a trial, found Anderson's
studies unpersuasive, stating "that neither Dr. Anderson's
testimony nor his research establish a solid causal link between
violent video game exposure and aggressive thinking and
behavior." 2005 U.S. Dist. LEXIS 31100 at *25-26. The court was
concerned that Anderson's research did not establish a causal
link between violent video games and violent behavior, did not
assess the significance of any link, and did not compare video
games to other forms of media violence to which minors are
exposed. Id. at 23-27. This court anticipates that the
defendants here may face similar problems proving the California
legislature made "reasonable inferences based on substantial
evidence." See Turner, 512 U.S. at 666.
To be valid, the Act must pass muster under strict scrutiny.
Whether, as the court in Kendrick indicated, the
First Amendment may prevent a state from having a legitimate compelling
interest in restricting the access of minors to violent video
games, or, as the court in Blagojevich ruled, Anderson's
research is insufficient to show such a compelling interest, the
plaintiffs have shown they are likely to succeed on the merits of
their claim that the Act violates the First Amendment, or at
least that serious questions are raised.
c. Labeling Requirement
In Central Hudson Gas & Electric v. Public Service Commission
of New York, the Supreme Court explained the strength of the
First Amendment in the commercial context:
For commercial speech [to be protected by the
First Amendment,] it at least must concern lawful activity
and not be misleading. Next, we ask whether the
asserted governmental interest is substantial. If
both inquiries yield positive answers, we must
determine whether the regulation directly advances
the governmental interest asserted, and whether it is
not more extensive than is necessary to serve that
447 U.S. 557
, 566 (1980). The Act requires video games that meet its definition of
"violent" to be labeled, on the front of the package, with a
white "18" outlined in black and at least two inches square. §
1746.2. This provision is not unconstitutional, despite
plaintiffs' suggestion otherwise, merely because it conflicts
with the industry's voluntary ratings system. However, the
Supreme Court has stated that "[a] court should not assume a
plausible, less restrictive alternative would be ineffective; and
a court should not presume parents, given full information, will
fail to act." United States v. Playboy Entm't Group, Inc.,
529 U.S. 803, 824 (2000). The parties disagree whether the labeling
provision affects commercial speech and thus is to be analyzed
under Zauderer, or whether the provision compels speech and is
to be analyzed under Riley. The court in Blagojevich found a
very similar labeling provision to be compelled speech and
violative of the First Amendment. 2005 U.S. Dist. LEXIS 31100 at
*85, 86. Defendants here have made no argument that the Act's
labeling requirement is permissible under Riley, and the court
finds that the plaintiffs have shown they are likely to succeed
on the merits of their claim that, or at least have raised
serious questions about whether, the Act's labeling provision
violates the First Amendment.
2. Threat of Irreparable Injury
The Supreme Court has stated that "[t]he loss of
First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod v. Burns,
427 U.S. 347, 373 (1976). To the same extent plaintiffs are
likely to succeed on their claim the Act violates the
First Amendment, they have shown a threat of irreparable harm. On the
other hand, a court should not freely enjoin an action of a
legislature, because "it is clear that a state suffers
irreparable injury whenever an enactment of its people or their
representatives is enjoined." Coalition for Econ. Equity v.
Wilson, 122 F.3d 718, 719 (9th Cir. 1997). Further, a state has
an "interest in the well-being of its youth." ACLU,
521 U.S. at 865. However, a preliminary injunction would, if defendants
ultimately prevail, only slightly delay enforcement of the Act,
and the Supreme Court has noted that "[t]he purpose of a
preliminary injunction is merely to preserve the relative
positions of the parties until a trial on the merits can be
held." Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981).
Plaintiffs have shown potential irreparable harm. 3. Balance of Hardships
If this court does not preliminarily enjoin enforcement of the
Act, the plaintiffs' members will have to institute labeling and
monitoring as mandated by the Act, which plaintiffs claim will
infringe upon their members' First Amendment rights, as well as
the First Amendment rights of minors in California. It will also
involve considerable expense to implement. If the court does
preliminarily enjoin enforcement of the Act, the defendants will
merely be delayed a short time in implementing the Act, if it is
ultimately found to be constitutional. The court finds that the
balance of hardships weighs in favor of the plaintiffs.
4. Public interest
There is a definite public interest in First Amendment
freedoms, but this has been discussed already in the section on
the plaintiffs' likelihood of success on the merits. The
defendants claim there is a substantial public interest in
protecting minors from the psychological harms they claim violent
video games inflict. The public interest also would favor
allowing the public's elected officials legislate, as the public
elected them to do. The public also has a strong interest in
enjoying its First Amendment freedoms. This factor does not
significantly weigh in favor of either side.
The plaintiffs have shown at least that serious questions are
raised concerning the States' ability to restrict minors'
First Amendment rights in connection with exposure to violent video
games, including the question of whether there is a causal
connection between access to such games and psychological or
other harm to children. The balance of hardships tips sharply in
the plaintiffs' favor as the potential infringement of
First Amendment rights and the costs in time and expense of
implementing the Act outweigh the potential harm of a short delay
in the implementation of the Act, if ultimately held
constitutional. III. ORDER
For the foregoing reasons, the court grants the plaintiffs'
motion for a preliminary injunction. The defendants and their
agents are hereby preliminarily enjoined from enforcing any
provision of the Act (future California Civil Code §§
1746-1746.5) until further order of this court.
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