TV News Report on Minnesota Video Game Ruling

As reported on GamePolitics earlier this week, a federal appeals court has affirmed a lower court ruling that Minnesota’s 2006 "fine the buyer" video game law is unconstitutional.

Local news station KARE-11 has a video report on the law’s defeat, including interviews with Dr. David Walsh of the National Institute on Media & the Family and, oddly enough, a guy who sells retro video games.

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    Here is my recent article about this ruling:

    Are the Courts Reaching the End of their Rope with Videogames?
    By: Lawrence G. Walters
    Weston, Garrou, Walters & Mooney
    © Lawrence G. Walters, Esq. (2008). All rights reserved.

    On March 17, 2008, the Eighth Circuit Court of Appeal issued its decision in Entertainment Software Association, et al, v. Lori Swanson, etc., et al, (hereinafter the “Decision”), affirming the trial court’s ruling, which struck down Section 325I.06 of the Minnesota Code, imposing a twenty five ($25) dollar fine on minors who purchase videogames rated “A” “O” or “M” by the Entertainment Software Rating Board (“ESRB”). While the initial reaction of the industry might be to rejoice in yet another victory, or perhaps emit a satisfied yawn at yet another failed piece of videogame legislation, a closer analysis of this Decision is warranted. The courts may indeed be approaching the extent of their tolerance with the content depicted in violent videogames offered for retail consumption in the United States.
    The Minnesota Restrictive Videogames Act (“the Act”) subjected any person under the age of seventeen (17) to a civil penalty of not more than twenty five ($25) dollars, and required that retailers post a sign notifying minors of the above-referenced prohibition and penalty. The Entertainment Software Association and the Entertainment Merchants Association challenged the statute at the district court level, and obtained a permanent injunction against its enforcement. In defending this law, the state of Minnesota solicited the testimony of an expert witness by the name of Craig Anderson. Mr. Anderson claimed that “well over 1000 studies…point overwhelmingly to a causal connection between media violence and aggressive behavior in some children.” He also suggested that preliminary research indicates the impact is far greater for violent videogames than for television, movies, or music. This is the kind of testimony that the industry will confront in future cases as well. The number of ‘studies’ allegedly establishing the correlation between violent videogames and real world violence is increasing. The more this questionable conclusion is repeated, the more likely it will be accepted as fact by lawmakers, activists, and ultimately, the courts.
    While the Eighth Circuit Court of Appeals upheld the trial court’s decision striking down the law, a reading of the court’s opinion suggests that the judges held their figurative noses when issuing the decision. The court took the time to detail the contents of certain modern videogames, including Postal 2: Apocalypse Weekend, The Punisher, Resident Evil 4, Manhunt, and God of War. The Decision describes the “Mature” game content which involved scenes of decapitation, curb jobs, urination, vomit, and playing fetch with dogs, using human heads. In upholding the decision below, the Eighth Circuit recognized that it was legally required to consider videogames as protected speech, given an earlier decision from the same court in Interactive Digital Software Association v. St. Louis County. While recognizing the binding nature of this decision, the Court took the opportunity to observe that the State hopes this decision will be overturned in an en banc review of the instant case.
    The court then took a jab at the prior decision in Interactive Digital, wondering aloud whether that same court would have characterized games like Manhunt as protected speech. The court also determined that the State has a compelling interest in protecting the psychological well being of its minor citizens. The judges agreed that the State’s evidence provides “substantial support for its contention that violent videogames have a deleterious effect upon the psychological well being of minors.” Never before has a Circuit Court of Appeal recognized such connection between violent videogames and harm to children. Despite the recognition of this harm, however, the Eighth Circuit recognized that it was bound to hold the State to a higher standard of proof, as required with laws affecting fundamental First Amendment rights. An empirical, causal link between exposure to violent videogames and subsequent behavior is required. Before announcing its decision, the court observed:
    Whatever our intuitive (dare we say commonsense) feelings regarding the effect that the extreme violence portrayed in the above-described video games may well have upon the psychological well-being of minors, Interactive Video requires us to hold that, having failed to come forth with incontrovertible proof of a causal relationship between the exposure to such violence and subsequent psychological dysfunction, the State has not satisfied its evidentiary burden.

    The industry prevailed in this case by the proverbial skin of its teeth. Had it not been bound by the standards set forth in Interactive Video, this court would have had no difficulty upholding the challenged law. As videogames have become more explicit in the subjects covered, and as the violence has become more lifelike, the courts have had increasing difficulty with issuing favorable rulings. The recent decision from the Eighth Circuit supports this trend. While the First Amendment is still squarely in the corner of the videogame industry, game developers and publishers must be wary of pushing the courts too far. Justice Scalia recently admitted, in a rare interview, that videogame legislation restricting sale to minors may well be constitutional. It appears that the Eight Circuit Court of Appeal would have welcomed such precedent, as it would have allowed the judges to rule in favor of the State, and against the publishers of the games referenced in the Decision.
    Certainly, First Amendment rights must take precedence over governmental control of media distribution. Government censorship is never justified. However, we may quickly reach a time where the courts will no longer support virtually unrestricted access by minors to type of game content referenced in the Eighth Circuit’s Decision. The need to work with concerned parents and advocacy groups to address any legitimate complaints by parents and consumers takes on an increased importance as the courts become more and more impatient with the state of the industry and the widespread availability of mature content for minors.

    Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou, Walters & Mooney, He has been practicing for 20 years, and represents clients involved in all aspects involved in the video gaming industry. He launched to serve as a clearinghouse for information relating to videogame censorship efforts. Nothing contained in this article constitutes legal advice. Please consult with your personal attorney regarding specific legal matters. Mr. Walters can be reached at, or via AOL Screen Name: “Webattorney.”

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    ZippyDSMlee ( User Karma: -1 ) says:

    why not ban books and other things and put them to the pyre… IMO banning is stupid now you can slot anything to age ranges to help retailers and publishers sale their goods to not only parents but people that do not want to deal with certain media types.

    A universal system would work well for that
    I had some musings over it here
    I still do not see it as a censor board not when its purpose is to age slot media using the societal based methods the ESRB and MPAA use.

    However as long as media is slotted I don;t care if its a uni system or indapendant boards, those that claim things are so sacred they can’t be slotted into age ranges need to et off their high horse!

    Hell if I ran a game store I would try to age slot the games within it and help my customers as much as I can finding the right game for them.

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    Billy says:

    @ Gameboy

    I think, and this is just me, that they chose that retro game store because it’s fucking awesome. I’d love to go to that store, it looked really kick ass. I wish I lived near that mall.

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    I don’t think that the KARE 11 segment represents a “change in tone” from me. I think I’ve been pretty consistent in saying that the ultimate responsibility rests with parents. In addition, I have never supported any legislation that goes in the direction of censorship.

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    Repudiator ( User Karma: 0 ) says:

    Wait a minute… A news report relating video games that did not make me want to punch my computer monitor?

    …These exist?

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    Elalonna ( User Karma: 0 ) says:

    That’s such a relief. Like Kyle said, after Mass Effect, this is almost pro-gamer. We all needed this one. It’s one thing to say “you’re too young for this” but to fine kids? That’s just low.

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    E. Zachary Knight ( User Karma: 2 ) says:

    @ Gameboy

    I think the reason they chose a retro game store is that this store would have the most difficulty in enforcing such a law.

    New games are easier to enforce as they all must have an ESRB rating with clear indications of the level of violence. Retro games do not.

    They would have to get all the retro games independantly verified for levels of violence before bing able to sell them legally. Doesn’t sound like much fun does it?

    I will have to wait to see the video though. I am at work and can’t get it.

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    myrpok says:

    Those stands at the Mall of America are a dime a dozen. I remember for multiple MONTHS there were a couple stands selling those illegal N64 controllers with dozens of classic games on an emulator inside them. Retro games are always awesome, but I don’t think Donkey Kong is making a “comeback”. Also- Kare 11, to me, has always been pretty tame when it comes to morning news (as opposed to others who try and make everything a controversy), which is probably why this report actually presents both sides in a level headed manner.

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    King of Fiji ( User Karma: 0 ) says:

    Being a VERY TAME version of the PTC can still mean your pretty wild because my god the Parent’s Television Council are the most fanatical watchdog organization I have ever seen.

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    Gameboy says:

    The KARE-11 story actually seemed pretty good. Almost friendly towards video games.

    I’m not sure why they went to the retro video game store, but I’m not complaining. The people they interviewed actually seemed well informed. I’m happy they made a point of having the retailer tell a story about a parent buying a game for a 10 year old. Walsh actually seemed sane (but I guess with recent articles the bar is kinda low right now), almost like he supported the court striking down the law. I only wish they made a bigger point of the fact that the struck down law would fine KIDS.

    All in all, I liked that story.

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    Kyle ( User Karma: 0 ) says:

    I like the point the retro guy was making I mean he actually sells games and he recognizes that Parents have to actually bother to learn understand the rating system this story seemed fairly neutral I mean geez after seeing FOX handle the issue with Mass Effect this looks damn neer gamer positive though this article was little short though that was to be expected I guess

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    GoodRobotUs ( User Karma: 0 ) says:

    Give ’em a break, at least they were trying 😉

    Seriously though, a pretty good, neutral to friendly report, though I’m somewhat confused at the change in tone from David Walsh, I couldn’t help wondering if that was a short snip of a much longer interview.

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