Industry Hails Judge’s Decision on Cal. Videogame Law

“We are extremely pleased by [the] announcement,” said Entertainment Software Assn. (ESA) Pres. Douglas Lowenstein. He said “we deeply respect the concerns” of Gov. Schwarzenegger (R-Cal.) and the Legislature “that gave rise to the law.” But Lowenstein noted that, “for the sixth time in five years, federal courts have now blocked or struck down these state and local laws seeking to regulate the sale of games to minors based on their content, and none have upheld such statutes.” He said “it is therefore time to look past legislation and litigation in favor of cooperative efforts to accomplish the common goal of ensuring that parents use the tools available to control the games their kids play.”

Interactive Entertainment Merchants Assn. (IEMA) Pres. Hal Halpin said “we are, of course, unsurprised by Judge Whyte’s decision to enjoin the law and pleased that his decision came before the holidays were upon us.” He said “our position has been, and shall remain, that government should not be involving itself in the entertainment decisions that consumers make… Judge Whyte’s preliminary injunction reaffirms our long-held position that these laws are unconstitutional and unnecessary.”

But VSDA Pres. Bo Andersen said his group “takes no pleasure in this decision,” adding “the injunction was inevitable, as is a final ruling that the law is unconstitutional.” Andersen said “it is indeed unfortunate that the state of California has wasted precious taxpayer dollars in pursuing this legislation, when the outcome is so predictable: This law will never go into effect.”

A spokesman for Cal. Atty. Gen. Bill Lockyer said “we are disappointed, but not surprised, that the court decided to temporarily suspend implementation of the law pending a more thorough review.” He said “statutes, such as AB 1179, which affect First Amendment rights, are subject to careful and deliberate review by the courts.” But he said “the District Court will now have the opportunity to more deliberately consider all of the arguments which we believe justify this narrow restriction on children’s access to explicit materials.”

Under the law, software titles would become classified as “violent videogames” if their depictions of violence are found offensive to the community or if the violence is “especially heinous, cruel, or depraved.” Game makers argue the law is unconstitutionally vague and would violate their First Amendment rights.

Whyte said he granted the preliminary injunction because “games are protected by the First Amendment and… plaintiffs are likely to prevail in their argument that the Act violates the First Amendment.” He also said “the plaintiffs have shown at least that serious questions are raised concerning the state’s ability to restrict minors’ First Amendment rights in connection with exposure to violent videogames, including the question of whether there is a causal connection between access to such games and psychological or other harm to children.” Therefore, he said, “the balance of hardships tips sharply in the plaintiffs’ favor as the potential infringement of First Amendment rights and the costs in time and expense of implementing the Act outweigh the potential harm of a short delay in the implementation of the Act, if ultimately held constitutional.”

But Whyte also said the “plaintiffs have not shown they are likely to succeed on their claim that the Act is unconstitutionally vague” because of the definition of a violent videogame. The judge said the 2 sides had been reluctant to characterize particular games as violent under the law. But Whyte did so, saying “the court agrees with the State defendants that Postal II would fall within the Act’s definition of ‘violent videogame'” because “the range of options available to a player includes killing, maiming, dismembering or sexually assaulting an image of a human being,” meeting one of the law’s requirements. He said “shooting schoolgirls in the knee and then setting them afire appeals to the deviant interests of minors” would also meet the definition of violence. Whyte said he could “easily imagine that Postal II ‘is patently offensive to the standards’ of some communities ‘as to what is suitable for minors,'” satisfying a 2nd requirement. Whyte said the game “appears to have no ‘literary, artistic, political, or scientific value for minors,'” and so meets another criterion. But Whyte said the THQ game Full Spectrum Warrior “would not be a violent videogame” under the law because it didn’t satisfy the same requirements.