The United States District Court for the Northern District of California, granted plaintiffs’ Video Software Dealers Association (VSDA) and Entertainment Software Association (ESA) motion for a preliminary injunction prohibiting enforcement of a California law (“the Act”) that requires violent video games to be labeled and prohibits their rental or sale to minors.
Governor Schwarzenegger signed the Act into law on October 7, 2005 (to take effect on January 1, 2006). VSDA and ESA, associations of companies in the video game industry, filed a complaint on October 17, 2005; a motion for a preliminary injunction to prevent enforcement of the new law followed two days later. VSDA and ESA claimed that: (1) the Act’s definition of “violent video game” is unconstitutionally vague, (2) the Act’s restriction on sales and rentals to minors violates the First Amendment, and (3) the Act’s labeling requirement violates the First Amendment. The defendants responded that the Act is “neither too vague nor violative of the First Amendment” and is “narrowly tailored to further a compelling state interest.”
Standard For Preliminary Injunction
In deciding to grant preliminary injunction, the court analyzed the traditional preliminary injunction standard from Dollar Rent A Car of Wash., Inc. v. Travelers Indem. Co., 774 F.2d 1371 (9th Cir. 1985), as well as the alternative standard from Stuhlburg Intern. Sales Co., Inc. v. John D. Brush and Co., Inc., 240 F.3d 832 (9th Cir. 2001). The traditional test requires that an applicant for preliminary injunction establish: (1) a likelihood of success on the merits, (2) the possibility of irreparable injury to the plaintiff if the injunction is not granted, (3) a balance of hardships favoring the plaintiff, and (4) advancement of the public interest. The alternative test requires the applicant to show that “serious questions are raised and the balance of the hardships favors tips sharply in favor of the moving party.”
Vagueness Claim
Conceding that other courts found previous, though not identical, legislative enacted definitions impermissibly vague, the court nonetheless held that the Act’s definition of “violent video games” was not unconstitutionally vague and that the plaintiffs were unlikely to succeed on the merits of such a claim. It rejected VSDA and ESA’s arguments that the language in the Act—most notably its call for characters with human characteristics, and its use of words that modify specific examples of behaviors—render the definition open-ended and impossible for an ordinary person to understand and apply. The plaintiffs, the Court reasoned, overlooked other language in the definition that sufficiently limited that language with which they took issue. In its inquiry, the Court used the Act to analyze the video games Postal II and Full Spectrum Warrior under its definition of “violent video games.” It concluded that the Act is sufficiently simple for an ordinary person to apply.
First Amendment Claims
In examining the claims that the Act violates the First Amendment, the Court first surveyed a series of cases from other courts that have addressed a government’s ability to regulate violent video games. In all of the cases examined, the courts either ordered injunctions prohibiting enforcement of a law regulating violent video games or declared that the law violated the First Amendment.
The Court then turned its attention to the Act and to an analysis of the applicable standard of review. The defendants attempted to establish the need to use the less deferential, rational basis standard of Ginsberg v. New York, 390 U.S. 629 (1968), a case in which the Supreme Court restricted minors’ access to sexually obscene material. The Court rejected this approach, noting that “[n]either the Supreme Court nor the Ninth Circuit has ever extended the Ginsburg analysis beyond sexually-obscene material.” The plaintiffs advocated using the standard established in Brandenburg v. Ohio, 395 U.S. 444 (1969), contending that a state can regulate expression (such as video games) only if it can prove that the expression incites, or is likely to incite, unlawful or violent behavior. Noting that the Act seemed to be aimed more at preventing harm to minors than preventing their lawless behavior, the Court nonetheless emphasized the prevailing view, and that advanced by the plaintiffs, that “limitations on a minor’s access to violent expression are subject to strict scrutiny.”
Restriction on Sales and Rentals
Having decided the standard of review, the court then analyzed the factors necessary for a state to be able to limit expression by restricting sales or rentals of violent video games. Since R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992) established that content-based regulations of expression are “presumptively invalid,” “a state may limit expression based on content only if [it] (1) has a compelling interest and (2) chooses the least restrictive means to further the articulated interest.” Sable Communications of Cal., Inc. v. F.C.C., 492 U.S. 115, 126 (1989). The Court noted, however, that in Am. Amusement Mach. Assn’n v. Kendrick, 244 F.3d 572 (7th Cir. 2001), the Seventh Circuit expressed doubt that the government had a compelling, not just a plausible, interest in preventing minors from playing violent video. The Court further emphasized that “a state must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will alleviate these harms in a direct and material way.” Turner Braoadcasting Sys., Inc. v. F.C.C., 512 U.S. 622, 664 (1994). In Entm’t Software Ass’n v. Blagojevich, --- F.Supp.2d. ---, 2005 WL 3447810 (E.D.Ill. 2005), however, an Illinois district court prohibited enforcement of a statute regulating violent video games after it found the testimony attempting to establish a causal link between violent video game exposure and aggressive thinking and behavior unpersuasive. The Court anticipated that the defendants in this case would face similar difficulties and, hence, concluded that the plaintiffs did establish a likelihood of success on, or at least raised serious questions as to, their claim that the restriction on sales and rentals violates the First Amendment.
Labeling Requirement
In addressing the Act’s labeling requirement, the Court noted that such a requirement may constitute either commercial speech or compelled speech. It remarked that the court in Blagojevich had concluded that a labeling requirement similar to the one in question was compelled speech that violated the First Amendment. The Court, however, did not offer much in terms of analysis, but concluded that the plaintiffs did establish a likelihood of success on, or at least raised serious questions as to, their claim that the labeling requirement violated the First Amendment.
Remaining Preliminary Injunction Factors
Though the bulk of the Court’s analysis focused on the plaintiffs’ likelihood of success, the court did briefly address the other factors necessary for a preliminary injunction. In granting the motion the Court noted that the plaintiffs are likely to succeed in establishing the potential threat of irreparable damage posed by the Act since as the Supreme Court concluded, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). The court also found the balance of hardships tipped in favor of the plaintiffs given that the potential infringement on First Amendment rights and cost of implementation of labeling would outweigh the possible harm of a short delay in the implementation of the Act if the defendants prevailed. Finally, because the public interest factor for preliminary injunctions did not weigh in favor of either party, and the plaintiffs had sufficiently satisfied the other factors, the court granted their motion.