The United States District Court for the Western District of Oklahoma has issued a permanent injunction against that state’s attempt at regulating computer and video games, ruling that video games are a form of creative expression entitled to protection under the First Amendment.
The law would have banned the dissemination to minors of any computer or video game that contains any depiction of “inappropriate violence,” even by a parent. Under the law, “inappropriate violence” is defined, in part, as material that includes depictions that fall into any one of nine broad categories. Violators would be subject to fines of up to $1,000.
The act was scheduled to go into effect on November 1, 2006, but a preliminary injunction
issued on October 11, 2006 blocked the law from taking effect while the legal challenge was pending.
According to a statement relayed on by the Entertainment Software Association, the Honorable Robin J. Cauthron also found that there is no support or “substantial evidence” that video games are harmful to minors. “…[T]here is a complete dearth of legislative findings, scientific studies, or other rationale to support passage of the Act,” Judge Cauthron wrote.
Judge Cauthron also addressed the issue of computer and video games’ interactivity. She found that, “the presence of increased viewer control and interactivity does not remove these games from the release of First Amendment protection.” The court additionally ruled that the law was underinclusive because a minor prevented from buying a video game with “’inappropriate violence’ may still legally buy or rent the book or movie on which the game was based.”
In comments released following the ruling, Michael D. Gallagher, president of the ESA, which represents U.S. computer and video game publishers, commented: “We need to move past unconstitutional attempts to circumvent Oklahoma citizens’ rights. This bill was clearly unconstitutional and we now need to develop a public/private partnership that meets concerned parents’ needs. State officials and policymakers should work together with our industry to educate parents about game ratings and the parental controls available on all new video game consoles.”
[
UPDATE: Bo Andersen, President of the Entertainment Merchants Association, issued the following statement in response to today’s ruling granting a permanent injunction against enforcement of video game restriction law enacted in 2006 by the state of Oklahoma:
"It is fitting that this ruling was issued on Constitution Day, which celebrates the signing of our nation’s governing charter. The decision is a ringing affirmation of the First Amendment’s guarantee of freedom of expression.
Judge Cauthron’s opinion makes abundantly clear that the Oklahoma legislature overreached in attempting to restrict the distribution of video games containing fantasy violence to minors, in part because there was no evidence that the games are harmful to anyone. The judge also correctly noted that there is no way for an ordinary person to determine which games were covered by the Oklahoma law and which were not.
It is time for lawmakers to stop targeting video games and the retailers that sell them. They should recognize that all video games are rated, retailers are choosing to enforce the ratings in their stores, and the new PlayStation 3, Wii, and Xbox 360 video game consoles and Vista computer operating system all allow parents to control the types of games that can be played on them. These voluntary steps, not government regulation, are true to the spirit of the American Constitution."]
