Minnesota Loses Appeal of "Fine the Buyer" Video Game Law

March 17, 2008 -

Veteran GamePolitics readers may recall Minnesota's unusual "penalize the buyer" approach to restricting sales of mature-themed games.

The 2006 Minnesota law sought to fine kids - not retailers - $25 for attempting to purchase a game for which the ESRB rating deemed them too young. The law was promptly overturned by U.S. District Court Judge James Rosenbaum, who, in a novel judicial move, tried out several violent games on his law clerk's Xbox.

Following Judge Rosenbaum's ruling that the law was unconstitutional, Minnesota opted to appeal to the 8th U.S. Circuit. That case was argued before the Court in February of last year. Now, as reported by the Minneapolis Star-Tribune, the 8th Circuit has upheld Judge Rosenbaum's finding that the Minnesota law is unconstitutional. From the newspaper report:
 

While the judges upheld Rosenbaum's ruling that violent games are entitled to First Amendment protections, they did so reluctantly.


 

[Judge] Wollman wrote that "whatever our intuitive (dare we say commonsense) feelings regarding the effect that extreme violence portrayed in the above-described video games may well have upon the psychological well-being of minors," precedent requires incontrovertible proof of a causal relationship between exposure to the games and some psychological harm.


 

The state failed to meet that burden, Wollman wrote... "Indeed, a good deal of the Bible portrays scenes of violence, and one would be hard-pressed to hold up as a proper role model the regicidal Macbeth," Wollman wrote.


GP: Judge Wollman's critical comments regarding violent games are not especially surprising for those who may have listened to last February's arguments. At that time the panel of three 8th Circuit Court judges asked some very pointed questions of video game industry attorneys.

The Minnesota case was also notable in that it produced some of the most inflammatory anti-game rhetoric this side of Jack Thompson. Bill sponsor Rep. Sandy Pappas (D, seen at left) rather famously said:
 

Legislators don’t worry too much about what’s constitutional.


In addition, then-Attorney General Mike Hatch (D) offered a legal opinion that, while violent games are indeed a form of speech, they are :
 

Worthless, disgusting speech... speech of very low societal value.


UPDATE: Bo Andersen, president of Entertainment Merchants Association (EMA), which represents a significant number video game retailers, offered reaction to the legal victory:
 

We are pleased that, yet again, a court has ruled that, like other forms of entertainment, video games are protected by the First Amendment and that laws that attempt to restrict their sale are unconstitutional. We believe far too much effort has been expended trying to pass and defend these laws, effort that could have been put to better use supporting the successful voluntary initiatives of the industry and retailers to ensure that children do not get games that are not appropriate for them.

 

Comments

First off: Mike Hatch's argument is the essence of stupidity.

Secondly: I hope MA is hearing about this.

Why don't they just give up. Personally, a "games as movies" model appeals to me. The same laws and policies that cover movies from G to X should govern video games from E to AO. While "games as porn" isn't very popular, they need to understand that some games ARE porn. No, I'm not talking about God of War, I'm talking about Japanese imports, I'm talking about the crappy, $100 budget games that have been trying to appeal to the lowest common denominator. Those games should be restricted, but obviously are already, under current laws that restrict certain things from children under contributing to the deliquency of a minor and other various local and state laws. Games like God of War shouldn't be sold to children, but only the same way that R Rated movies shouldn't be sold to children. You don't have a sepperate section of BlockBuster behind a curtain where the need to card you before you can get in and look at the R rated movies. And those R rated movies often have much more nudity (if not violence) then a M rated game.

In short, if you think Halo should be treated as porn, then you ain't seen nothing. You need some learning...

Ye Gods. If stupidity was a crime...

I find games to be the best stories told these days.

Oblivion? Pretty good.

Crysis? Not too shabby.

Bioshock? I came close to shedding a tear.

Half Life 2? Freaking epic.

Movies these days are the garbage dumps of free speech these days. Heck, even Team Fortress 2 has more character than 'Romantic Comedy #2,405,604'.

If only there was some way to make a good book with the same story as any of the above games, let it integrate itself into American culture, then come back ten years later and say "Surprise!", then see the look on their faces...

"Worthless, disgusting speech… speech of very low societal value."

Wow, I wasn't aware you were magically the authority on weather or not everyone else thought that.

"Legislators don’t worry too much about what’s constitutional."

Obviously not, or this monkey see monkey do charade would have ended long ago.

@JackDon'tKnowJack

I think you're right that I got my syllogism mixed up. I was a little too loose in using the word "therefore." Judge Rosenbaum said that video games are protected speech under the 1st Amendment. In other words, it's not that they are a form of speech and because of that they are protected. Rather, he meant that video games are a form of speech and thus are also protected under the 1st Amendment. The one simply goes with the other.

Judge Rosenbaum did not go into an explanation of why video games are protected speech, and so I don't know if he was using the Miller test or any other test. He simply cited a precedent, Interactive Digital Software Association v. St. Louis County, wherein the 8th Circuit determined that video games are protected speech and left it at that. Now that I look at it, it's interesting that this very same 8th Circuit was apparently reluctant to rule that video games are subject to 1st Amendment protection (if we believe the newspaper's account).

From what I read in Judge Rosenbaum's ruling, any law dealing with restrictions on free speech must pass strict scrutiny. I think I can clarify a little something about why he went through that whole analysis, though. He didn't simply stop at saying that video games are protected speech because Minnesota asserted that their law does in fact pass strict scrutiny. Therefore, Judge Rosenbaum had to go through all of their evidence and determine that to be untrue.

Thanks for helping me clarify.

In a way you're almost coaxed into harvesting them because you're told several times that you get a lot more adam from doing it, just a matter of opinion whether lots of adam is better than some adam & a warm fuzzy feeling that may or may not be a symptom of paedophilia

"Worthless, disgusting speech… speech of very low societal value."

Well who the hell are you, Mike Hatch, to say that? Who the hell are you to judge and assign value to our free speech?

Proving the possibility that sometimes there just ain't no way to skin the cat.

"Worthless, disgusting speech… speech of very low societal value."

That is basically EVERYTHING that comes out of the mouths of politicians and lawyers.

@Zerodash:

Hey! Go easy on them lawyers. You never really need a politician but some lawyers have been know to save the innocent from a lengthy prison sentence.

To Tom:

Interestingly enough, the Supreme Court has assigned "value" to free speech. Specifically, the Court has assigned categories of "lower valued" speech. What I don't get is why Mr. Hatch assigns video games as lower value when they don't really fit into the traditional categories that the Supreme Court has used in determining lower value speech (provocation, obscenity, threats, incitements to riot, child porn and defamation).

I guess what I'm saying is that Mr. Hatch needs to retake his basic Conlaw courses. Then again, who am I? I'm not some kind of megapowerful former-attorney general.

When the government can just start deciding what speech is valuable and what isn't is the day the first amendment becomes completely redudant.

Essentially, Mike Hatch is a clueless, tyrannical dumbfuck.

[...] Video Game Law Developments Minnesota is the latest state to see its video game censorship law struck down. See Minnesota Loses Appeal of “Fine the Buyer” Video Game Law. [...]

"precedent requires incontrovertible proof of a causal relationship between exposure to the games and some psychological harm."

Ah ha.....

While I am in favor of this ruling, I'm still waiting for 'incontrovertible proof' that erotica hurts minors or that obscenity hurts adults. The closest I ever seem to hear is "I caught my partner looking at PORN so I left them! It's porn's fault!'

@Neeneko:

The whole "erotica hurting minors" thing has less to do with "harm" and more to do with, to quote Chief Wiggum, our American squeamishness. Remember that not all laws and court rulings are necessarily logical. Some laws are based on policy. Some are based on intent of the Framers (which is why stuff like obscenity is given a lower value).

general Mike Hatch is worthless!

To put a finer gloss on the point which Robert makes:

The whole premise underlying the free speech and press proctections of the First Amendment is that both free speech and a free press are vital to the proper functioning of a democractic society. The Founding Fathers believed this and included those protections due largely to their own experiences with political-thought censorship at the hands of the British monarchy. What the courts have held is not so much that provocation, obscenity, threats, incitements to riot, child porn, defamation, etc., are of lesser value than other forms of spech but that they don't in any way further the proper functioning of a democractic society and, therefore, couldn't have been the among the sorts of speech that the Fathers intended to protect. In that sense, the exceptions are not so much of lesser value than protected speech as much as they are valueless to a democracy.

"Worthless, disgusting speech… speech of very low societal value."

I find your arguement old-fashioned, uneducated and utterly fucking stupid.

"Worthless, disgusting speech… speech of very low societal value."

I don't remember the constitution treating different forms of speech on different levels. As far as I'm concerned that's just an opinion.

@Robert,

That's interesting, but does the Supreme Court therefore interpret different levels of protection for different values of speech? As far as I know whatever the KKK prints in its rally propaganda has the same 1st amendment protection as a scholarly journal from a university.

"Worthless, disgusting speech… speech of very low societal value."

As opposed to what, Mike? You!?

"Worthless, disgusting speech... speech of very low societal value."

Wow! Way to not be elitist there buddy.

BTW, books were around first.

@JustChris:

My understanding is that it is an issue of what kind of scrutiny the Court places on the speech. Thus, if the speech is of "lesser value," then the law regulating it would not be analyzed under strict scrutiny. For your example, so long as the KKK doesn't somehow do it's speech in a way that would result in it being categorized as "provocation, obscenity, threats, incitements to riot, child porn and defamation," then laws regulating their speech would be afforded higher scrutiny. It also seems that the Court has generally preferred to err on the side of free speech as opposed to the side of censorship (all three levels of the tests focus on the law and not the speech itself).

The law surrounding the 1st amendment is huge and complicated and I'm doing it no justice in my comments here (plus, I've just recently learned the details in my Conlaw course) so if anyone wants to expand/add/correct me, please do.

I was a little worried about this one, given the critical comments during the arguments. Still, I am glad they used the strictest standard of proof of harm, as opposed to the Ginsburg v. New York line, which would only be rational basis.

One down, one to go...California's appeal is the last one standing.

Is there a link to the official judicial decision?

@Robert:

Not really. I suspect you may be confusing a First Amendment analysis (which strives to detemine whether a particular piece of speech is protected (and therefore cannot be regulated) or not (and therefore can be regulated) with a 14th/5th Amendment analysis (which strives to determine whether the regulation of a particular piece of unprotected speech is constitutional). The 14th/5th Amendment analysis applies only to unprotected speech because if the speech is indeed protected by the First Amendment it simply cannot be regulated.

It is confusing. And frequently tested on the Multistate. Heads-up.

@ Robert

You're right in that there are certain types of expression that aren't protected. It comes down to an all-or-nothing situation in which provocation, obscenity, threats, incitements to riot, child porn and defamation are specifically not protected by the First Amendment. I don't understand them to be considered "less valued" expression under the law as much as they're not even considered expression to begin with. They all tend to be fluid, though, and as far as I am aware are all subject to the Miller Test to some degree or another. Also, it's important to note that the restrictions aren't curtailing the expression itself as much as they are concerned with the effects of the expression.

My issue was with Hatch's assertion that violent video games were worth less as speech then other violent media. It ties into my long-time and intense frustration with people viewing video games as "expression, only less so." It's an all-or-nothing proposition. You either protect and value speech, or you don't. You can't protect and value speech that you like. That's bullshit and Mr. Hatch is full of it.

@ JustChris

All expression is protected equally. So long as the KKK rally propaganda is inviting people to a lawful assembly and is not an incitement to riot they are within their rights. Hate speech is also generally protected so long as the effects of that hate speech will not cause it to fall under other, non-protected types of speech. For example, a KKK member can use racist terms as much as he or she likes, but if those racist terms are used to provoke or incite a riot then they would not be protected speech.

My view on the matter is that you really need to allow everything. Restricting speech is a slippery slope that could lead to drastically reduced freedoms.

Hm, I think Mike Hatch's form of speech is of utter uselessness to society and is hurting our youth. Fuck him.

“Worthless, disgusting speech… speech of very low societal value.”

yeah.. n i could say the same about religious texts. But i wouldnt because i have enough brain cells to work out that that is just my opinion, and i have no right to affect somebody elses right to that material based solely on my own opinion of it.

"Worthless, disgusting speech… speech of very low societal value."

Uh, yeah, okay. Excellent job, showing us how much of an ignorant asshole you really are.

I just thought I'd pop in and applaud a judge who didn't let personal feelings get in the way of a sound and correct judgment.

@Robert:

And I suspect (without knowing much more than I've read in GP's article) the issue presented by the Minnesota case wasn't one for a First Amendment analysis but, rather, one for a 14th/5th (more likely 5th because the state not the fed is the attemptive regulator) Equal Protection Clause analysis. The legislation seems to have focused not on the product (i.e., the speech) but the product's purchaser and, therefore, wouldn't even implicate a First Amendment speech issue. That, I imagine, was how the legislators intended to completely bypass Miller and, instead, trigger the EPC analysis. But I am just guessing.

Finally something i can do in my state...I was begining to wonder when this appeal was going to happen. I contacted the author of the Startrib article to visit here to maybe shine some line for some ill informed media.

Worthless, disgusting legislature... legislature of very low societal value

Worthless, disgusting speech… speech of very low societal value.
He just described many blockbuster movies, primetime shows, and the holy bible. But you see him calling them worthless, disgusting, or has very low societal value.

“Worthless, disgusting speech… speech of very low societal value.”

I personlly do not mind what he said, that's his opinion and he's free to it. As a resident of MN I will be writing a letter to Mr. Hatch to try and make him more informed about video games, rather then flamming him on an internet thread which he will never see. One never knows... the man might find all violent media as having a "lower" value. Even living in this state i don't know that much about the man. I'm willing to give him the benefit of the doubt on this one.

To the article: I thought the law was a very interesting idea. Insanely hard to regulate, but interesting. At least they didn't try banning anything this time. I think it would have forced parents to have a bigger role. If you have to pay for your kid's fine once, you'd probably be much more likely to watch over what they're buying and playing.

@KayleL:

The article he was interviewed for was about this law. It wouldn't make any sense to talk about any of those other things. As I said above, nobody, that I know of, here knows this man very well. He is not JT. He has not shown any JT like tendencies. Give him a break.

Anyone here dig through older GP articles to see what else Mr. Hatch has said?

"...there may be few, if any, other forms of speech, even though protected, that are of any lesser societal value than repulsive video games depicting the bloody slaughter of babies and animals, urination and defecation, rape, decapitation, dismemberment and disembowlment."

I don't know about you guys, but I didn't get angry at this statement. Naw... I laughed. Hard. It gave me a chuckle. I was in Gigglezville after reading that.

Nevertheless, Fine the buyer? Right...

What game lets you slaughter babies??? Doom 3 has cherubs but those are demon babies.

@N1nj4Br34dm4n:

I dunno. Repudiator's research does appear to have uncovered Mr. Hatch tending towards some very JT-like sounding pronouncements. And also exhibiting a penchant for alliterations.

I still want to know what games Mr. Hatch is referring to that do all of those things....

@Xlorep

That's simple: the ones that cases the more hype.

Unfortunately, he mixed video games with car advertisement. Can't say I blame him though. He's an Attorney General after all. He probably said this to move unto more important matters.

@Cheater87

For that matter, what game has rape, defecation or urination?

I mean, yes, some zombie games or bloody games have dismemberment and stuff....but it's not usually blood/gore for the sake of blood/gore, but rather to make the game cooler/more realistic/cooler

@chadachada

Case in point, Dead Rising.

@ chadachada

Postal 2 has urination.

I read the original decision in which Judge Rosenbaum struck down Minnesota's law. Keeping in mind that I'm not a lawyer (yet), my understanding is that his decision was based on an analysis of the law under both the 1st and the 14th Amendment. This is because the ESA challenged the law under both of those grounds, so he had to make a ruling on both.

Judge Rosenbaum said that videogames are protected speech and therefore subject to protections under the 1st Amendment and therefore subjected Minnesota's law to strict scrutiny. He found that the law did not hold up because it did not meet a compelling state interest (i.e. no proof that videogames make children violent) and it wasn't narrowly tailored to meet that interest (i.e. the law was too broad and vague) — those being two of the prongs in the strict scrutiny test.

He also found that the law was unconstitutional under the 14th Amendment because it essentially appointed the ESRB, which is not elected and does not answer to the public, to perform a government function. Thus, Minnesota's law violates due process.

So my understanding of his ruling is that Minnesota's law was found unconstitutional under BOTH the 1st and 14th Amendment. Simply being unconstitutional under just one of those would have been enough to strike it down, but the ESA and the judge were being thorough. In order to prevail on appeal, Minnesota would have had to overturn Judge Rosenbaum's ruling on both grounds, and it sounds like they fell short on both.

I welcome clarifications or corrections from anybody with more expertise.

[...] A long time ago, I posted an explainer of what had happened with Minnesota’s videogame violence law and why it was struck down by the courts. Apparently, Minnesota lawmakers couldn’t let well enough alone, so they appealed the decision. And GamePolitics reports that they’ve lost the appeal. This comes as a surprise to precisely no one. It was a little worrisome for a while because the panel of three judges asked some rather pointed questions of the games industry lawyers, and one of them hinted that declaring games to have free speech protection under the 1st Amendment went against her intuition. But in the end, the state couldn’t produce incontrovertible proof that games are harmful to children, so down the law went. [...]

@Xantar:

Seems a little weird that the court would say that videogames are protected speech and therefore subject to protections under the 1st Amendment and therefore subjected Minnesota’s law to strict scrutiny. I'd have thought it'd be more like the court said that videogames are protected speech and therefore subject to protections under the 1st Amendment but, just to add a pair of suspenders to the belt, nevertheless subjected Minnesota’s law to strict scrutiny. Because, as you rightly pointed out and putting aside that the ESA challenged on both grounds, the court could have stopped once they got to "protected speech" conclusion.

And I misspoke earlier. 14th is to state as 5th is to federal, not the other way around.

@Xantar:

Unless the second "therefore" is used in a temporal sense and not a causal sense.

@Xantar:

And just to free-ride on your read, what 1st Amendment test did they apply? Miller?
 
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Matthew Wilsonyes it help a sub section of the poor, but hurt both the middle and upper class. in the end way more people were hurt than helped. also, it hurt most poor people as well.04/16/2014 - 12:13am
SeanBJust goes to show what I have said for years. Your ability to have sex does not qualify you for parenthood.04/15/2014 - 9:21pm
NeenekoSo "worked" vs "failed" really comes down to who you think is more important and deserving04/15/2014 - 7:04pm
NeenekoThough I am also not sure we can say NYC failed. Rent control helped the people it was intended for and is considered a failure by the people it was designed to protect them from.04/15/2014 - 7:04pm
NeenekoIf they change the rules, demand will plummet. Though yeah, rent control probably would not help much in the SF case. I doubt anything will.04/15/2014 - 1:35pm
TheSmokeyOnline gamer accused of murdering son to keep playing - http://cnews.canoe.ca/CNEWS/Crime/2014/04/15/21604921.html04/15/2014 - 11:50am
Matthew Wilsonyup, but curent city rules do not allow for that.04/15/2014 - 11:00am
ZippyDSMleeIf SF dose not start building upwards then they will price people out of the aera.04/15/2014 - 10:59am
Matthew Wilsonthe issue rent control has it reduces supply, and in SF case they already has a supply problem. rent control ofen puts rent below cost, or below profit of selling it. rent control would not fix this issue.04/15/2014 - 10:56am
NeenekoRent control is useful in moderation, NYC took it way to far and tends to be held up as an example of them not working, but in most cases they are more subtle and positive.04/15/2014 - 10:24am
PHX CorpBeating Cancer with Video Games http://mashable.com/2014/04/14/steven-gonzalez-survivor-games/04/15/2014 - 9:21am
Matthew Wilsonwhat are you saying SF should do rent control, that has never worked every time it has been tried. the issue here is a self inflicted supply problem imposed by stupid laws.04/15/2014 - 8:52am
E. Zachary KnightNeeneko, Government created price controls don't work though. They may keep prices down for the current inhabitants, but they are the primary cause of recently vacated residences having astronomical costs. Look at New York City as a prime example.04/15/2014 - 8:50am
NeenekoI think free markets are important, but believe in balance. Too much of any force and things get unstable.04/15/2014 - 7:25am
NeenekoWell, the traditional way of keeping prices down is what they are doing, controls on lease termination and tax code, but it will not be enough in this case.04/15/2014 - 7:24am
Matthew WilsonI said that already04/14/2014 - 4:22pm
E. Zachary KnightMatthew, The could also lower prices by increasing supply. Allow high rise apartment buildings to be built to fulfill demand and prices will drop.04/14/2014 - 3:48pm
Matthew Wilsonthe only way they could keep the price's down, would be to kick out google, apple, amazon, and other tech companies, but that would do a ton of economic damage to SF, but I am a major proponent of free markets04/14/2014 - 2:54pm
NeenekoThe community people are seeking gets destroyed in the process, and the new people are not able to build on themselves. Generally these situations result in local cultural death in a decade or so, and no one wins.04/14/2014 - 2:09pm
NeenekoWell yes, that is the 'free market', but the market is only a small piece of a much larger system. The market does not always do the constructive thing.04/14/2014 - 2:06pm
 

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