U.S. District Judge James Brady in Baton Rouge, La., on Thursday issued a preliminary injunction against a state bill signed into law by Democratic Gov. Kathleen Blanco in June. Under its terms, anyone caught selling to children video games that "depict violence in a manner patently offensive to prevailing standards in the adult community with respect to what is suitable for minors" faces fines of between $100 and $2,000 and up to a year in prison.
The video game industry "has a substantial likelihood of success of proving a First Amendment violation," Brady wrote in a 28-page order. He pointed to the existence of arguably less restrictive alternatives, such as the industry's voluntary rating system and parental controls, as grounds for such a violation.
The Entertainment Software Association and the Entertainment Merchants Association had sued Louisiana officials one day after the law took effect, arguing that the bill infringed on constitutional rights to free expression and was too vague. The state countered that it has a duty to protect children from "physical, psychological and financial harm" (click here for PDF) and that such a law doesn't run afoul of the Constitution because it regulates conduct, not speech.
Failure to explain crucial terms
The state's argument "overlooks a line of cases holding that video games are protected speech," Brady wrote, adding later that "depictions of violence are entitled to full constitutional protection."
The judge agreed with the video game industry that the law was overly vague, lacking explanations of "crucial terms," such as the word "violence." He also said the state had failed to produce "reliable" evidence that violent video games are harmful to a child's well-being--and would be unlikely to present more convincing findings in the future.
ESA President Douglas Lowenstein praised the judge's action. "In the post-Katrina era, voters should be outraged that the legislature and governor wasted their tax dollars on this ill-fated attack on video games," he said in a statement.
Louisiana Assistant Attorney General Burton Guidry indicated in a telephone interview that an uphill battle may lie ahead. "We're going to try to do all we can to have the statute upheld, but at this point in time, it's going to be a little difficult because of the judge's ruling," he said.
Since Judge Brady's decision is only preliminary, the video game industry is expected to file a request for summary judgment--that is, invalidating the law without a full trial--in the next few weeks. The state would prefer that the judge go ahead with a trial in which it could present "all the evidence we can" in support of the disputed law, Guidry said.
If ultimately overturned as unconstitutional, the Louisiana statute would be far from alone. Similar laws have been blocked this year in Minnesota and in Michigan on First Amendment grounds.
Before that, laws in Illinois, California, Indianapolis and Missouri's St. Louis County faltered under legal challenges. Another similar suit filed by the ESA is currently pending in federal court in Oklahoma.
