ESA Sues Chicago Transit Authority over Ban on M-Rated Game Ads

The Entertainment Software Association has filed a federal lawsuit against the Chicago Transit Authority, challenging a 2009 CTA ordinance which prohibits ads for games rated M (17+) or AO (18+) from appearing on its vehicles and facilities. 

GamePolitics readers may recall that in April, 2008 the CTA ordered ads for Grand Theft Auto IV removed from buses even before the game was released. The CTA action followed local news coverage of a rash of shootings in Chicago.

Shortly thereafter, GTA IV publisher Take-Two Interactive sued the CTA, charging that the agency had broken a $300,000 contract for the campaign. The parties settled the case later in 2008, with the CTA granting T2 a six-week GTA IV ad run. However, CTA officials moved to block future ads for M-rated games by passing the new ordinance, which took effect on January 1st and prompted today’s legal action by the ESA.

ESA boss Mike Gallagher commented on the lawsuit in a press release: 

The CTA’s ordinance constitutes a clear violation of the constitutional rights of the entertainment software industry. Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment. The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.

The press release also explains some of the legal rationale behind the suit:

The ESA’s suit contends this new ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” In addition, the Complaint argues that the ordinance impermissibly discriminates on the basis of viewpoint and ignores less restrictive means of achieving the supposed ends of the ordinance.  

The ESA also stated that the CTA’s ordinance is unnecessary because game-related marketing is already subject to the Entertainment Software Rating Board’s Advertising Review Council (ARC), which strictly regulates computer and video game advertisements that are seen by the general public.  The Entertainment Software Rating Board (ESRB) assigns content ratings to computer and video games, which, in turn, are displayed on the advertisements for those games.

As GamePolitics has reported, the Massachusetts Bay Transit Authority has a similar ban on M-rated game ads, likening them to X-rated movies. It is unclear at this time whether the ESA will pursue a similar action against the MBTA.

While the lawsuit also encompasses AO-rated games, as a practical matter, such titles are virtually non-existent in the U.S. market.

DOCUMENT DUMP: Grab a copy of the lawsuit here (70-page PDF)…

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  1. Lavarock says:

     Ugh. X-rated movies? They think M-rated games are like X-rated movies? Try PG-13. You can hardly hint at nudity in a video game, but somehow since it’s in a movie Sascha Baron Cohen can shake his dick and ass around for half a movie and actually expose his urethra. That gets an R. But if the PG-13 Titanic scene was a video game cutscene, it would be banned/ rated Ao.


    Fucking ridiculous.

  2. Arcanagos says:

    Finally the ESA grows a pair… about time too

    "Go ahead and hate your neighbor, go ahead and cheat a friend. Do it in the name of Heaven, Jack Thompson’ll justify it in the end." – nightwng2000

  3. hayabusa75 says:

    So all the court challenges they brought to bear on previous content-regulating laws don’t count for anything?

    "De minimus non curat lex"

  4. Neo_DrKefka says:

     Thank you sir for looking for that information! I doubt you’ll a response back from anyone else but I am waiting too see what happens in the 2010 elections before I decide to relocate to Utah or Texas where the economy is booming.

  5. Mycroft Holmes says:

    ANd he’s right about the talk about succesion from Cook county, though no one has really made a serious go of it yet.  We have the highest sales tax in the nation; 10.25%.  They were amazed to find out that people would leave the county instead of pay their rediculous sales tax.

    Illinios is perhaps the most money grubbing state I’ve ever known.  That’s before I start talking about the actual institutionalized corruption…



  6. hellfire7885 says:

    Why don’t you run through google yourself and provide a link for a change isntead of pulling Thompsons left and right?

    Telling someone to look it up themselves is akin to "I don’t have to prove it, I know I’m right"

  7. Neo_DrKefka says:

     All above. Google this crap. Megisfield, Daley 600 million budget shortfall, Daley on DC Ban and Supreme Court, 1968 Democratic Convention and anything about the Cook County Secession.


  8. Father Time says:

    Wait what do you mean certain minorities? Blacks, cripples, hispanics?


    Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it’s over they have the same positions they started in.

  9. JustChris says:

    While I agree Daley has done some idiotic things, tearing down Meigs Field didn’t have a racist motive. The field is just a regular park.

    I got tired pretty quick of going to the local polls and being asked to vote for one Democrat who was running unopposed, though that has more to do with the GOP knowing better than to bother wasting money on a candidate in Chicago.

    Your post maybe exaggerate the prevailing attitude towards the Mayor just a little. However, i will say that I don’t mind a degree of unilateral patronage on the part of the Mayor, as long as it works in the favor of the people of the City of Chicago and isn’t racist or transparently nepotistic. Is it perfect? hell no; however, during Daley’s tenure it’s created a thriving city with a modern cityscape rivaled on by New York. Far cry from the record-breaking crime rates of the 90’s.

    "Ask anyone who rides the CTA or lives in Chicago. Each and every year they have a budget problem. Each and every year they claim there will cut routes in Chicago. Each and every year they claim they will raise the rates if they do not get the funding by the state. Each and every year the RTA pulls another crisis. The CTA is owned by the RTA in which is funded by the state of Illinois. "

    I only recall the last 5 years being like this. Maybe it’s because of all the new rail station construction going on! The brown and red lines were molasses slow up until a year ago.


  10. JDKJ says:

    Not that where I live is any of your business, but, no, I don’t live in Chicago. I don’t live in the San Franciso Bay area, either, but I know the Golden State Bridge when I see it. Nor do I live on a cattle ranch, but I can tell bullshit when I smell it.

    You said that the "Democratic Party slowly over the years has converted [the CTA] too [sic] a public unionized company [whatever that term, which I suspect you invented, means]. Meaning they are fully funded by the State." This is pure, 100% bullshit. 

    The CTA, as the name implies, is an "authority," authorized by the City of Chicago to run the City’s transit system for profit and also authorized to do so with a fair amount of autonomy and independence from local government. These are hallmarks of all "authorities." They are not fully funded by either the City of Chicago nor the State of Illinois. A significant, if not always completely adequate, amount of their operational budget derives from revenues generated from their operation of the transit system. These revenues may not be 100% of their budgetary needs, but they are enough to make your claim that "they are fully funded by the State" 100% bullshit.

    Since I answered your question, lemme ask one of my own: Do you live in the Sunnybrooke Home for Crazy People? Seriously, do you?  

  11. Neo_DrKefka says:


    Do you live in Chicago? Seriously do you live in Chicago?


    Ask anyone who rides the CTA or lives in Chicago. Each and every year they have a budget problem. Each and every year they claim there will cut routes in Chicago. Each and every year they claim they will raise the rates if they do not get the funding by the state. Each and every year the RTA pulls another crisis. The CTA is owned by the RTA in which is funded by the state of Illinois. 


    the RTA covers Pace, Metra Rail and the CTA. 


    They are always in the red, they always have a new unneeded project that pisses of commuters. The RTA always goes in the red. A Star Line was offered by the Federal Government two years back but since the RTA could not get it together and was off demanding funds from the state for services they can’t afford but still provide well that never happened.


    I recommend to everyone is you want to know about the CTA and their budget crisis just google, "CTA threatens to raise fares" You’ll get a lot of old stories there.


  12. hellfire7885 says:

    I’m behind the ESA on this.

    Government owned or not, the CTA violated a contract, and, contrary to the reasons for the ban, they still allow ads for R rated movies and likely for "unrated" editions of other R rated movies, and at least it’s possible to find an ESRB rating descripter without the need of a magnifying glass and ultraviolet light.

  13. jedidethfreak says:

    Cigarette advertising is illegal in America, with the exception of adult media.  That’s why if a movie has someone smoking, it’s automatically R, regardless of other content.  That’s also why the Nascar Winston Cup had to become the Nascar Nextel Cup.  By Winston sponsoring Nascar, that was deemed advertisement, and since Nascar is watched by children, it was argued that Winston sponsoring Nascar was akin to advertising targeted to children.

    Freedom of speech means the freedom to say ANYTHING, so long as it is the truth. This does not exclude anything that might hurt someone’s feelings.

  14. JDKJ says:

    I could be dead-ass wrong, but I believe cigarette advertising is also banned by the CTA. It’s just much easier to satisfy the constitutional requirements with respect to cigarettes than it is with respect to videogames. Ain’t too many folks arguing that cigarettes aren’t harmful to health and that maintaining current levels of cigarette sales doesn’t require, as older smokers die (often from smoking-related causes), convincing more youthful generations to pick up the habit.

    Besides, if Zippy thinks that cigarette ads aren’t banned, that’s a good enough reason for me to think that they are. 

  15. JDKJ says:

    @Father Time:

    The CTA, like most all other transit authorities, is a "quasi-government" entity. They are granted by the government broad powers to exercise independently of the government in the operation of the transit system but they, technically, are still an arm of the government. And their facilities and vehicles, because they open them to advertising, are a "public forum" for all advertisers, none of whom can be denied access to that forum unless the requirements of the First Amendment are satisfied in so doing.

    And, contrary to what Ol’ Doc Kefka would have you believe, they aren’t "fully funded by the State." They’re actually expected to fund themselves through passenger ticket sales, advertising revenues, property rentals, etc., etc. The ones that can’t ever turn a profit are often subsidized by the state. But some of them are actually hugely profitable and generate revenue for themselves and the state (e.g., NYC’s Port Authority).

  16. Neo_DrKefka says:

    Yes the Democratic Party slowly over the years has converted it too a public unionized company. Meaning they are fully funded by the State. They spend so much every year and with all the pay raises they go on a rant claiming they will raise prices unless they get the funding they need to pay off workers.

    In fact the former leader of the Illinois Democratic Party Rod Blagojevich signed into law funding so nothing would go up but then a month later he signed a bill for certain minorities and people over a certain age to ride free and the state would not fund that meaning raised prices.
    Various Illinois suburbs and all suburbs surrounding Chicago are having a secession movement in fact in March 2009 all the suburbs that had elections voted for succession away from Cook County. It’s extremely doubtful the party of spending and give to all minorities will lose Illinois.
  17. Father Time says:

    I’m not sure where to stand on this. If the CTA were a privately owned company I would be rooting for ESA to lose as I think the bus company should be allowed to decide what ads they’ll show (like a website).

    The CTA is public though (at least I think it is) and I do believe the first amendment gives you free speech but does not guarantee you’ll get a soapbox to stand on, but I’m still not sure. I think I’m still leaning towards ESA losing.


    Debates are like merry go rounds. Two people take their positions then they go through the same points over and over and over again. Then when it’s over they have the same positions they started in.

  18. JustChris says:

    King Daley? WTF? I know Chicago politics are saucy, living in Chicago and whatnot, but as a citizen I don’t feel oppressed. Maybe I am doing it wrong.


  19. Neo_DrKefka says:

    This is Chicago! Law means little when it comes to the Democratic Machine in Chicago.

    Chicago broke Federal Law when King-Mayor Richard Daley the 2nd ordered the illegal destruction of an Airport because Daley wanted it tore down to build a Liberal Arts Park for Minorities and his Liberal Followers. So in the darkness of night violating a court order Daley destroyed Meigsfield.
    His father Kind Daley the 1st famously ordered the police at the 1968 Democratic National Convention to beat anyone who protested the Democratic Parties War in Vietnam the event became infamous as anyone and everyone who was not in the convention worshipping at the altar to the Liberal Democratic Party ordered to be beaten. Even a visiting member of the United Kingdom’s Parliament was beaten that day. 
    In the words of King-Mayor Richard Daley the 1st “The police are not here to create disorder. They are here to preserve disorder.“
    You think this suit is going to stop Chicago Politics? Daley has already admitted he doesn’t care about the Supreme Court or for example the City Gun ban being overturned by the Supreme Court he is the law.
  20. chadachada321 says:

    Seems to me that the city ordinance itself is unconstitutional, because it gives a private business/group (the ESRB) the force of law. The city can’t ban ads simply because it is "rated" a certain rating, that has been shown time and time again to be illegal, because the ESRB is not a government body.

    A legal alternative would be to have a process to determine if ads are appropriate or not based on the people themselves. Sure, that would mean that more game ads could legally be banned, but that would be the route that I would pursue if I was a censoring buffoon.

    Personally, I think that the "public forum" stance isn’t as good as the "ESRB isn’t a government body" stance, but that’s just me.

    -If an apple a day keeps the doctor away….what happens when a doctor eats an apple?-

  21. ZippyDSMlee says:

    Trival really I don;t think there would be much fuss if it was AO only to ban M is to ban R films, and I don’t see them banning R films and alcohol and ciggeretes,ect,ect so make it teen and under only(and lose ad rev) or give it up……


    I am a criminal because I purchase media,I am a criminal because I use media, I am a criminal because I chose to own media..We shall remain criminals until Corporate stay’s outside our bedrooms..

  22. Neeneko says:

    Hrm.  Using the "X" rating as an example is actually rather interesting and brings up a differnt set of quesrtions since there IS no "X" rating.  X is essentially ‘unrated and understood to be adult’… so if he was truely thinking through the example then he would be saying that games not rated by the ESRB at all should be restricted.

    Which of course brings up the whole ‘ESRB with government like powers’ problem.

  23. BearDogg-X says:

    I think the ESA will definitely win this one. Where was CTA’s ban on ads for R-rated movies when they were passing this crap ordinance.

    Geaux Saints, Geaux Tigers, Geaux Hornets, Jack Thompson can geaux chase a chupacabra.

    Proud supporter of the New Orleans Saints, LSU, 1st Amendment; Real American; Hound of Justice; Even through the darkest days, this fire burns always

    Saints(3-4), LSU(7-0)

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