8th Circuit Affirms Injunction of State Regulation of Violent Video Games

March 17, 2008. The U.S. Court of Appeals (8thCir) issued its opinion [8 pages in PDF] in Entertainment Software Association v. Swanson, affirming the District Court's permanent injunction against enforcement of a statute of the state of Minnesota that prohibits minors from purchasing or renting certain video games.

Minnesota enacted a statute titled "Minnesota Restricted Video Games Act", which is now codified at Minnesota Statutes Section 325I.06, that provides that a person under the age of 17 may not knowingly rent or purchase a video game rated AO or M by the Entertainment Software Rating Board (ESRB), and that violation is subject to a civil penalty of up to $25.

The Entertainment Software Association (ESA) and Entertainment Merchants Association (EMA) filed a complaint [PDF] in U.S. District Court (DMinn) against Lori Swanson, in her capacity as Attorney General of Minnesota seeking an injunction on constitutional grounds. The District Court enjoined enforcement of the statute. It reasoned that the video games a protected speech, and that strict scrutiny analysis is applicable. See, order [PDF], which is reported as Entertainment Software Assín v. Hatch, 443 F. Supp. 2d 1065 (2006).

Minnesota brought the present appeal. The Court of Appeals affirmed.

It wrote that "violent video games are protected free speech" and that "any restriction on the purchase or rental by minors of violent video games is subject to strict scrutiny analysis". Under this standard, the statute withstands scrutiny only if it necessary to serve a compelling state interest and is narrowly tailored to achieve that end.

The Court of Appeals conceded that the state has a compelling interest in "safeguarding the psychological well-being of minors". However, it continued that this interest cannot be "merely conjectural". The state must show that "regulation will in fact alleviate these harms in a direct and material way". The Court of Appeals concluded that "the evidence falls short of establishing the statistical certainty of causation demanded".

The Court of Appeals relied upon its 2003 opinion [9 pages in PDF] in Interactive Digital Software Assín v. St. Louis County, 329 F.3d 954. See, story titled "Eighth Circuit Holds Ban on Sales of Violent Video Games to Minors Violates First Amendment" in TLJ Daily E-Mail Alert No. 673, June 4, 2003.

The Entertainment Software Association's Rich Taylor stated in an e-mail to TLJ that the ESA "is both pleased and encouraged by todayís Eight Circuit Court ruling. The court underscored what others also determined after exhaustively reviewing all relevant research: there is no causal link between video games and real-life violence."

He continued that "with the ESRB ratings, parental education, and the parental controls available on all new video game consoles, there are myriad ways that those concerned can ensure that children play appropriate, parent-approved computer and video games."

He concluded that "we believe a combination of parental choice and parental control is the only legal, sensible, and most importantly, effective way to empower parents, and we dedicate ourselves to working with all parties to accomplish this goal."

This case is Entertainment Software Association and Entertainment Merchants Association v. Lori Swanson, U.S. Court of Appeals for the 8th Circuit, App. Ct. No. 06-3217, an appeal from the U.S. District Court for the District of Minnesota. Judge Wollman wrote the opinion of the Court of Appeals, in which Judges Smith and Benton joined.