Constitutionality of Proposals to Prohibit the Sale or Rental to Minors of Video Games with Violent or Sexual Content or “Strong Language”
Released: 2009-02-24T00:00:00

Introduction

It has been proposed that Congress prohibit the sale or rental to minors of video games that are rated "M" (mature) or "AO" (adults-only) by the Entertainment Software Ratings Board. This board is a non-governmental entity established by the Interactive Digital Software Association, and its ratings currently have no legal effect. The Board's website sets forth the criteria for its "M" and "AO" ratings:

Titles rated M (Mature) have content that may be suitable for persons ages 17 and older. Titles in this category may contain intense violence, blood and gore, sexual content, and/or strong language.

Titles rated AO (Adults Only) have content that should only be played by persons 18 years and older. Titles in this category may include prolonged scenes of intense violence and/or graphic sexual content and nudity.

The primary constitutional issue that a proposal to prohibit the sale or rental to minors of video games with "M" or "AO" ratings raises is whether it would violate the First Amendment's guarantee of freedom of speech. If it would not violate the First Amendment, then it would constitute a valid regulation of interstate commerce within Congress's power to enact under the Commerce Clause. Congress would also apparently have the power to delegate the promulgation of video game standards to a private entity, as the Supreme Court has upheld Congress's power to delegate regulatory power to private entities in other contexts.

First Amendment Principles

The First Amendment provides that "Congress shall make no law ... abridging the freedom of speech," but the Supreme Court allows various exceptions to this prohibition. Obscenity, for example, is not protected by the First Amendment, but most sexually oriented material has not been judged to be obscene and is protected by the First Amendment. Even a statute that restricts protected speech on the basis of its content may be constitutional, but the Supreme Court generally will uphold such a statute only if it passes "strict scrutiny." This means that, to be found constitutional, the statute must be necessary "to promote a compelling interest" and be "the least restrictive means to further the articulated interest." The Supreme Court has "recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards."

Violent and sexual material

By "literature that is not obscene by adult standards," the Court was referring to "[s]exual expression which is indecent but not obscene." It was not referring to material with violent content, and the courts tend to treat restrictions on sexual material differently from restrictions on violent and other non-sexual material. With respect to non-sexual material, the Supreme Court requires that, "[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must ... demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." This is true even with respect to governmental restrictions on speech to which, unlike "indecent" speech, the Supreme Court accords less than full First Amendment protection and therefore applies less than strict scrutiny.

With respect to sexually explicit material, by contrast, the courts generally assume, without requiring evidence, that it is harmful to minors, or they consider it "obscene as to minors," even if it is not obscene as to adults. They therefore find it not entitled to First Amendment protection with respect to minors, whether it is harmful to them or not. Considering the constitutionality of a federal statute that required cable television operators to prevent "signal bleed" to customers who had not subscribed to channels primarily dedicated to sexually oriented programming, a federal district court wrote:

We are troubled by the absence of evidence of harm presented both before Congress and before us that the viewing of signal bleed of sexually explicit programming causes harm to children and that the avoidance of this harm can be recognized as a compelling State interest. We recognize that the Supreme Court's jurisprudence does not require empirical evidence. Only some minimal amount of evidence is required when sexually explicit programming and children are involved.

The court therefore found that the statute served a compelling governmental interest. It held the statute unconstitutional, however, because it found that it did not constitute the least restrictive means to advance the interest. The Supreme Court affirmed on the same ground, apparently assuming the existence of a compelling governmental interest, but agreeing that a less restrictive means could have been used.

In another case, a federal court of appeals, upholding the statute that bans "indecent" radio and television broadcasts from 6 a.m. to 10 p.m., noted "that the Supreme Court has recognized that the Government's interest in protecting children extends beyond shielding them from physical and psychological harm. The statute that the Court found constitutional in Ginsberg sought to protect children from exposure to materials that would 'impair[ ] [their] ethical and moral development.... Congress does not need the testimony of psychiatrists and social scientists in order to take note of the coarsening of impressionable minds that can result from a persistent exposure to sexually explicit material.... " A dissenting judge in the case noted that, "[t]here is not one iota of evidence in the record ... to support the claim that exposure to indecency is harmful—indeed, the nature of the alleged 'harm' is never explained."

Despite the above rulings, it has been noted that—

The Court seems to be becoming less absolute in viewing the protection of all minors (regardless of age) from all indecent material (regardless of its educational value and parental approval) to be a compelling governmental interest. In striking down the Communications Decency Act of 1996, the Court would "neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all 'indecent' and 'patently offensive' messages communicated to a 17-year-old—no matter how much value the message may have and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute." Reno v. American Civil Liberties Union, 521 U.S. 844, 878 (1997). In Playboy Entertainment Group , 529 U.S. at 825, the Court wrote: "Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech." The Court also would "not discount the possibility that a graphic image could have a negative impact on a young child" (id. at 826), thereby suggesting again that it may take age into account when applying strict scrutiny.

Overbreadth

The Supreme Court has written:

The First Amendment doctrine of substantial overbreadth is an exception to the general rule that a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others. The doctrine is predicated on the danger that an overly broad statute, if left in place, may cause persons whose expression is constitutionally protected to refrain from exercising their rights for fear of criminal sanctions. Overbreadth doctrine has wide-ranging effects, for a statute found to be substantially overbroad is subject to facial invalidation.

What this means in the present context is that, if a retailer affected by the proposal under consideration were to challenge it as violating the First Amendment, then it would not matter whether the sale or rental to minors of a particular video game by that retailer could constitutionally be proscribed. Even if the sale or rental to minors of that particular video game could constitutionally be proscribed, the court would strike down the law on its face if it applied to a substantial number of other video games whose sale to minors could not constitutionally be proscribed. Put another way, the overbreadth doctrine renders a statute "invalid in all its applications (i.e., facially invalid) if it is invalid in any of them."

Violent Video Game Decisions

The Supreme Court has never ruled on the constitutionality of a statute that restricted minors' access to violent video games, but every lower federal court—three courts of appeals and five district courts (not counting district court decisions that went up to a court of appeals)—that has ruled on such law has found it unconstitutional and issued an injunction against its enforcement.

Two of the federal courts of appeals decisions—the Seventh and Eighth Circuits'—have considered the constitutionality of local ordinances (Indianapolis' and St. Louis County's, respectively) prohibiting making violent video games accessible to minors, and both refused to treat violent material like sexual material or to find it "obscene as to minors." Both courts, rather, held the ordinances unconstitutional on the ground that the government had failed to present adequate evidence that violent video games are harmful to minors.

What sort of evidence would be adequate to persuade a court that there was a compelling interest in denying minors access to violent video games? In the St. Louis County case, the Eighth Circuit held:

Before the County may constitutionally restrict the speech at issue here, the County must come forward with empirical support for its belief that "violent" video games cause psychological harm to minors. In this case, as we have already explained, the County has failed to present the "substantial supporting evidence" of harm required before an ordinance that threatens protected speech can be upheld. We note, moreover ... that the County may not simply surmise that it is serving a compelling state interest because "society in general believes that continued exposure to violence can be harmful to children." Where first amendment rights are at stake, "the Government must present more than anecdote and supposition."

St. Louis County also asserted that it has a compelling interest in "assisting parents to be the guardians of their children's well-being." As to this, the Eighth Circuit said that in no case "does the Supreme Court suggest that the government's role in helping parents to be the guardians of their children's well-being is an unbridled license to governments to regulate what minors read and view."

In the Indianapolis case, Judge Richard Posner, holding for the Seventh Circuit that a preliminary injunction against enforcement of the Indianapolis ordinance was warranted, wrote:

The City rightly does not rest on "what everyone knows" about the harm inflicted by violent video games. These games with their cartoon characters and stylized mayhem are continuous with an age-old children's literature on violent themes.... The City instead appeals to social science to establish that games such as "The House of the Dead" and "Ultimate Mortal Kombat 3," games culturally isomorphic with (and often derivative from) movies aimed at the same under 18 crowd, are dangerous to public safety. The social science evidence on which the City relies consists primarily of the pair of psychological studies that we mentioned earlier.... These studies do not support the ordinance. There is no indication that the games used in the studies are similar to those in the record of this case or to other games likely to be marketed in game arcades in Indianapolis. The studies do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere. And they do not suggest that it is the interactive character of the games, as opposed to the violence of the images in them, that is the cause of the aggressive feelings. The studies thus are not evidence that violent video games are any more harmful to the consumer or to the public safety than violent movies or other violent, but passive entertainments.

The third and most recent court of appeals decision—the Ninth Circuit's—struck down a California statute that prohibited the sale or rental to minors of violent video games, and that required that violent video games "be labeled with a sold white '18' outlined in black" that is "no less than 2 inches by 2 inches" in size. Applying strict scrutiny, the court held

that the Act violates rights protected by the First Amendment because the State has not demonstrated a compelling interest, has not tailored the restriction to its alleged compelling interest, and there exist less-restrictive means that would further the State's expressed interests. Additionally [the court held] that the Act's labeling requirement is unconstitutionally compelled speech because it does not require the disclosure of purely factual information; but compels the carrying of the State's controversial opinion.

Five federal district courts—in Washington, Illinois, Michigan, Oklahoma, and Louisiana—have also struck down statutes that denied minors access to violent video games, and have not been reviewed by a court of appeals. We discuss these five cases in the order in which they were decided.

In July 2004, a district court struck down a statute enacted by the state of Washington, finding that "there has been no showing that exposure to video games that 'trivialize violence against law enforcement officers' is likely to lead to actual violence against such officers."

In December 2005, a district court struck down an Illinois statute that prohibited both violent and sexually explicit video games, finding, with respect to the prohibition of violent video games, that "defendants have failed to present substantial evidence showing that playing violent video games causes minors to have aggressive feelings or engage in aggressive behavior."

In March 2006, a district court struck down a Michigan statute that, in the court's words, "regulates the distribution of both sexually explicit video games and ultra violent explicit video games to those under the age of 17. The plaintiffs only challenge the second part of the Act dealing with ultra violent explicit video games." The court found that "defendants have failed to present substantial evidence showing that playing violent video games causes minors to have aggressive feelings or engage in aggressive behavior." The court also found that the statute would have a "chilling effect" on video game retailers because it "would make the retailers themselves responsible for determining which games are considered ultra-violent. Since they could not determine this in advance, the retailers would likely steer clear of any game with the potential of such violence in order to avoid civil and criminal liability, thus denying constitutionally protected free speech to minors and adults." The court found, in addition, that "[t]he defendants have also failed to consider less restrictive ways of achieving their interests ... such as undertaking an advertising campaign to inform parents of the [voluntary] ratings system [developed by the Entertainment Software Ratings Board] and what to watch out for when purchasing games for their children, much like the theater industry did when ratings were first introduced." Finally, the court found the Michigan statute to be "unconstitutionally vague."

In December 2006, a district court in Louisiana granted a permanent injunction against a statute that criminalized the distribution to minors of violent video games. The court found that, "when it comes to regulating expression in order 'to curb violent behavior,' the State must satisfy the standards set forth in Brandenburg v. Ohio , 395 U.S. 444 (1969). Under Brandenburg , the government must prove that the target expression 'is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.'" In addition, "the Statute cannot be defended on the grounds that it is designed to protect minors from some form of 'psychological harm,' as that amounts to nothing more than 'impermissible thought control.'" The court also found the statute underinclusive because "violent video games are only 'a tiny fraction of the media violence to which modern American children are exposed,'" and found "that there are less restrictive alternatives which would achieve the State's goals ... including encouraging awareness of the voluntary ESRB video game rating system ... ." Finally, the court found the statute unconstitutionally vague.

In September 2007, a district court in Oklahoma granted a permanent injunction against the enforcement of a state statute that made it a crime to display, sell, or otherwise disseminate violent video games, as defined by the statute. The court found

no support in the record, let alone "substantial evidence," for Defendants' conclusion that allowing dissemination of violent video games to minors is harmful to those minors or any others. Beyond Defendants' generalized statements, there is a complete dearth of legislative findings, scientific studies, or other rationale in the record to support the passage of the Act. Defendants' argument that "common sense" dictates that playing violent video games "is not good for children," and that the onus is on Plaintiffs to prove otherwise, completely fails.... The First Amendment does not allow prohibitions based on "common sense."

The court also found the statute unconstitutionally vague.

Sexually Explicit Video Games Decision

As noted above, in 2005, a federal district court struck down an Illinois statute that prohibited both violent and sexually explicit video games. The state appealed only with respect to sexually explicit video games, and the Seventh Circuit affirmed. The Seventh Circuit applied strict scrutiny and quickly found that the state's identified purpose in "shielding children from indecent sexual material and in assisting parents in protecting their children from that material" is "clearly" compelling. The Seventh Circuit, however, found the Illinois statute to fail the second prong of strict scrutiny because it "is not narrowly tailored and is overbroad." This was because it banned "access to material that has serious social value for minors," even though doing so was unnecessary for the state to achieve its stated purpose. Even apart from this problem, the court found that "the statute could still not survive strict scrutiny because the plaintiffs have identified other less restrictive alternatives.... Most obviously, the State could have simply passed legislation increasing awareness among parents of the voluntary ESRB ratings system."

Application of the Decisions to the Proposal

Violent content

With respect to a First Amendment challenge to the prohibition of the sale or rental to minors of video games with violent content, a court following the relevant precedents would apply strict scrutiny, which means that it would uphold the provision only if it finds that it serves a compelling governmental interest by the least restrictive means. The determinative question with respect to whether the prohibition serves a compelling interest would apparently be whether the government can "demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The cases cited above found inadequate the government's evidence as to the harm caused by violent video games, but one cannot know whether a court in the future will consider the same research rejected by courts in the past, or, if it does, whether it will find it more persuasive than have courts in the past.

If a court were to find a compelling governmental interest in the prohibition of the sale or rental of video games with violent content, then it would have to decide whether the prohibition constituted the least restrictive means to advance the interest. A point in favor of the proposal's constitutionality with respect to this question is that video game stores would know from the "M" or "AO" rating exactly which videos they could not legally sell or rent to minors. They would not, therefore, face the situation that the court found that stores could face in one of the cases discussed above, namely that, "[w]ithout wholesale, indiscriminate refusals to sell video games to minors by store operators it appears impossible to protect sellers from prosecution.... Nor is it reasonable to expect store clerks to play each level of each game to determine if it falls within the act's definition of ultra-violent explicit."

Under the proposal, however, although retailers would know which video games they were prohibited from selling or renting to minors, they could nevertheless argue that the proposal prevented them from selling or renting to minors some video games that are constitutionally protected with respect to minors. In addition, producers of video games could argue that the proposal's vagueness would prevent them from knowing which video games would be rated "M" or "AO" and therefore prohibited from being sold or rented to minors, and that the proposal's overbreadth would prohibit from being sold or rented to minors some video games that were constitutionally protected with respect to minors. In other words, producers of video games could argue that the proposal would chill their speech because it might deter them, for market reasons, from producing video games that were constitutionally protected with respect to minors. Producers, that is, might fear that some video games that were constitutionally protected with respect to minors would be rated "M" or "AO" and therefore would not be sold or rented to minors, and that there was not a sufficient adult market for such games to make it worthwhile for them to produce them, or that, even if there were, the producers would make less money because minors would not be allowed to purchase or rent video games that were constitutionally protected.

A person challenging the prohibition of the sale or rental of video games with violent content as overly restrictive might argue that the language that defines the "M" and "AO" ratings is vague and overbroad. Specifically, such a person might argue that the phrases "intense violence," "sexual content," "strong language," and "nudity" are unconstitutionally vague, and that a video game's having one or more of these features does not necessarily cause it to lose First Amendment protection as to minors, and therefore the prohibition on renting or selling to minors video games with one or more of these features would render the proposal unconstitutionally overbroad.

Note that the use of "and/or" in the "M" and the "AO" ratings means that "intense" violence under the "M" rating need not include blood and gore (nor be "prolonged," as under the AO rating), and that "strong language" is sufficient for an "M" rating, even if it is unrelated to violence or sex. The breadth of the ban on the sale or rental to minors of video with "strong language" might be especially problematic. The Supreme Court has written:

[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.... Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.

Furthermore, the Court has also found that the First Amendment applies "not only [to] ideas capable of relatively precise, detached explication, but [to] otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated." "Strong language," therefore, is protected speech, including generally for minors; the only exception the Supreme Court has found is with respect to the use of "indecent" language on broadcast radio and television during hours—but not all 24—when children are likely to be in the audience.

Sexual content

Because the courts generally assume, without requiring evidence, that sexually explicit material is harmful to minors, the proposal's prohibition of the sale or rental of video games with sexual content might more easily pass the "compelling governmental interest" prong of the strict scrutiny test than would the proposal's prohibition of the sale or rental of video games with violent content. Even here, however, the "M" rating refers merely to "sexual content," by contrast with the "AO" rating's reference to "graphic sexual content." Sexual content, especially if it is not graphic, does not necessarily constitute pornography, but may concern such subjects as birth control and sexually transmitted diseases. (Video games may not typically address such matters, but, under the substantial overbreadth doctrine discussed above, it might not be necessary that they do so for a court to find the proposal facially invalid.) It might be impossible for the government to demonstrate a compelling interest in denying minors access to all material with sexual content. If a court did not rule on this question and instead applied the "least restrictive means" prong of the strict scrutiny test, then it might find the proposal overbroad in applying to all material with sexual content in an effort to deny minors access to some of it. The "M" rating, like the statute that the Seventh Circuit struck down in the one federal case that addressed a ban on video games with sexual content, is not limited to material that is "obscene as to minors" (i.e., to material that taken as a whole, lacks serious literary, artistic, political, or scientific value).

An "AO" rating may be imposed on video games with "graphic sexual content and nudity," which suggests that nudity alone would not suffice for an "AO" rating, though it might be considered "sexual content" and suffice for an "M" rating. This seems problematic, because the Supreme Court has written that nudity alone "does not place otherwise protected material outside of the First Amendment." This statement was not made with reference to minors' First Amendment rights, but, if a court, in applying the First Amendment, took into account the ages of minors who typically buy or rent video games, the extent of the nudity portrayed, and the manner in which it is portrayed, then it might find the proposal's coverage of nudity vague and overbroad.

Application to "M"- and "AO"-rated video games

Because the proposal would prohibit the sale or rental to minors of video games with either "M" or "AO" ratings, the constitutionality of each of these prohibitions should be examined separately. Video games with "M" ratings, as noted, "may contain intense violence, blood and gore, sexual content, and/or strong language." If a video game contained any one of these features, then it would be rated "M" and could not be sold or rented to minors. If it would be unconstitutional to prohibit the sale or rental to minors of video games simply because they contain strong language, or simply because they contain sexual content—without regard to the particular strong language or the particular sexual content—then the substantial overbreadth doctrine would seem likely to render unconstitutional a prohibition on the sale or rental to minors of "M"-rated video games, given the current criteria for an "M" rating.

Video games with "AO" ratings, as noted, "may include prolonged scenes of intense violence and/or graphic sexual content and nudity." Applying the same reasoning just applied to video games with "M" ratings, if it would be unconstitutional to prohibit the sale or rental to minors of video games simply because they contained prolonged scenes of intense violence, without regard to their literary value or the possibility of harm, then the substantial overbreadth doctrine would seem likely to render unconstitutional a prohibition on the sale or rental to minors of "AO"-rated video games, given the current criteria for an "AO" rating.

Conclusion

In conclusion, it appears that, for a prohibition of the sale or rental to minors of video games with violent content to be upheld, the government would have to present empirical evidence that these games harm minors or cause them to become violent. The prohibition of the sale or rental to minors of video games containing sexual content, however, would seem more likely to be upheld without empirical evidence that such games harm minors.

Nevertheless, the apparent vagueness and potential overbreadth of the current criteria for "M" and "AO" ratings might cause a statutory prohibition on the sale or rental to minors of video games that incorporates those ratings to be found unconstitutional on its face, even if the sale or rental to minors of some of the video games to which the "M" or "AO" rating apply could constitutionally be prohibited by more narrowly tailored legislation.