textfiles/magazines/GWD/gwd138.txt

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D  //             |    \ 11    3 8 8   First Ammendment Right of Access to   D
* ||  ____        | || |  1  333 888     Violent Gaming" by Yancey Slide     *
G ||    || \    / | || |  1    3 8 8 issue #138 of "GwD:  The American Dream G
w  \\___//  \/\/  |____/ 111 333 888 with a Twist -- of Lime" ***** 12/31/03 w
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                             Current Controversy

     The field of computer and video gaming is one of the largest and fastest
growing segments of the entertainment industry.1  As the field grows, its
growing pains as a nascent industry are compounded by an ongoing debate over
the content of popular games and control over access to those games by minors.
The controversy, which has also enveloped violent and sexually explicit movies
and literature, is compounded both by the particularly interactive nature of
computer and video games and by the relative infancy of the medium.  The core
questions surrounding the impact of violent entertainment in more traditional
media - its effect on children and the possible cultural desensitization to
violence and licentious behavior - are paired with a new question:  does the
interactive nature of electronic gaming constitute a substantive difference
that sets the new medium apart from the traditional calculus of First
Amendment freedoms or should electronic gaming be regulated under the same
framework that governs violent and explicit films and other traditional media?
     This question has been answered to varying degrees by the gaming
industry, by state and local legislatures, and by the courts.  Game developers
and publishers have adopted a self-regulatory ratings system similar to that
used by films.2  The legislative response to the perceived threat of violent
gaming has been more stringent, often rejecting self-regulation and opting for
stricter regulation.  States and municipalities have been experimenting for
several years with a variety of laws designed to curtail minors' access to
violent games.3  These legislative efforts vary widely in the scope of their
coverage but regulate access to violent and explicit interactive games
separate from, and more strictly than, more traditional media.4  Federal
district courts, responding to First Amendment challenges to these
regulations, have had a mixed response; initially, two high-profile challenges
to access regulations were rejected by district courts before both cases were
reversed by their respective circuits.5  In response to the seemingly clear
position taken by appellate courts, district courts are receiving First
Amendment challenges to access regulation more warmly.6
     Despite this ongoing caselaw development and the seemingly unambiguous
position of the Seventh and Eighth Circuits, the legislative effort to
restrict access to electronic games continues apace.  The "Protect Children
from Video Game Sex and Violence Act of 2003," currently pending before the
House Subcommittee on Crime, Terrorism, and Homeland Security, criminalizes
retailing or renting any video game that "depicts nudity, sexual conduct, or
other content harmful to minors."7  The bill has generated a great deal of
cultural and media controversy; the grassroots Lion and Lamb Project, an
organization dedicated to promoting nonviolent entertainment, is organizing
supporters of the resolution.8  Other influential commentators, such as the
editorial staff of the Boston Globe, are also reaching out to encourage the
legislation.9  At the same time, leading pundits such as the libertarian Cato
Institute vilify the act as "none of government's business."10
     The ongoing debates among pundits, courts, and legislators may stem from
a more fundamental controversy over the nature of interactive electronic
entertainment.  As electronic games become more prevalent and the industry
grows, there is a critical need for a solid understanding on the legislative,
legal, and cultural levels as to what regulations appropriate and
Constitutionally permissible.  This, in essence, is the most important set of
issues surrounding electronic gaming:  how it relates to more traditional
media and whether it can and should be regulated in the same ways.  The
practical controversy emerging from this issue is whether the positions taken
by the Seventh and Eighth Circuits are correct, and whether they should be
adopted nationally.  The ongoing debates over access regulations provide an
effective measure for these questions, which are not likely to be definitively
answered in the near future.

                        Industry and Cultural Setting

     The electronic gaming industry is rapidly increasing in size and even
more rapidly increasing in prominence and public visibility.  The industry's
representative association, the Entertainment Software Association, estimates
that sales more than doubled between 1995 and 2002.11  The Association claims
that the industry is growing at 15% annually, faster than the 6% rate for the
U.S. economy overall and "a faster rate than other major American industries
including:  motion picture production, distribution and allied services;
amusement parks; consumer electronics manufacturing; and physical fitness
facilities."12  The economic statistics are impressive and undeniably reflect
an enormous growth in the field, but the impact and prevalence of electronic
gaming may be better assessed with the Association's calculation of the
industry's cultural saturation.

     A January 2003 poll conducted by KRC Research for the
     ESA showed consumers plan to keep spending on computer
     and video games in this year, with 41% of all
     Americans, and almost two-thirds (63%) of parents,
     saying that they plan to purchase at least one game in
     2003. In addition, a majority of Americans (56%) under
     the age of 45 plan to buy at least one computer or
     video game this year; while 37% of 45 to 54 year olds,
     and 26% of adults ages 55 to 64, also plan to buy at
     least one game this year.13
     
These figures, if accurate, reflect the tremendous amount of exposure that
electronic gaming, once a niche industry, has acquired.14  The numbers also
suggest the level of penetration the industry has achieved; forty-one percent
of Americans are buying enough games to provide two for every household in the
United States.15
     Industry statisticians seem to be consciously using the demographics of
gamers to dispel popular images of game players as predominantly underage and
overwhelmingly male.  The ESA notes in the top three of its "Top Ten Industry
Facts" that of the fifty percent of Americans who play electronic games, the
average age is twenty-nine and thirty-nine percent are women.16  Almost all of
the industry facts and press materials presented by the industry association
are intended to counter unfavorable perceptions and promote an image of a
conscientious industry.  The ESA notes that sixteen of the top-selling games
in 2002 were rated "E" ("content that may be suitable for persons ages 6 and
older") or "T" ("content that may be suitable for persons ages 13 and
older").17
     The statistics presented by the industry vary slightly according to the
schism between computer and video games, highlighting a crucial aspect of the
electronic entertainment industry.18  While the largest publishers and content
creators often distribute games across platforms, the majority of computer and
electronic games exist solely in the niche for which they were created.  The
computer gaming market takes broad advantage of the multiplicity of peripheral
devices that exist to support personal computer software but also contends
with the relatively expensive costs of maintaining an up-to-date personal
computer.  Video gaming consoles, while less flexible than personal computers,
can support cutting-edge games at a much lower cost due to the dedicated
nature of the hardware.19  The specialization of the hardware also means,
however, that many publishers of video games cannot afford the costs of
publishing a title outside of a specific console, and comparatively few games
are published for both a console system and personal computers.20
     The effect of this dichotomy is to create two similar markets that cross
in many places but are substantially different in key areas.  Computer gamers,
as distinct from video gamers, tend to be older and are becoming a sexually
mixed demographic.  Video games are still largely the province of younger
consumers, and the population is overwhelmingly male.21  The split may
contribute to the uneven distribution of violent and explicit content:  the
top two best selling games of 2002 in the video game market, "Grand Theft Auto
3" and "Grand Theft Auto:  Vice City" are both rated "M" for Mature.22  By
contrast, none of the top ten best-selling computer games for the same period
were rated for mature content.23  The disparity in content may reflect the
more mature tastes of the somewhat older computer gaming market.  It may also
reflect the generally more complex nature of computer games, which take
advantage of the broader range of input devices and peripherals available to
the more complex host machines.
     The disparity in violent and explicit content between these markets is
not taken into account by any of the current or pending legislative efforts to
ban minor access.  Most bills lump computer and video games together into a
monolithic electronic gaming category or fail to acknowledge any distinction
whatsoever.24  The most recent legislative efforts to attempt a nuanced
control of distribution distinguish between genres rather than markets.  In
California, a freshman state assembly member is planning to introduce
legislation restricting the sale of games "that visually depict serious injury
to human beings in a manner that is especially heinous, atrocious, or cruel"
to minors.25 The proposed legislation, according to press reports, focuses
especially on "first-person shooter" games, "in which the player operates
through the eyes of the character."26  This distinction would be extremely
difficult to make in a legislative context; the two top-selling video games of
2002, both titles in the "Grand Theft Auto" series, are both violent and
sexually explicit but would fall outside of the "first person shooter"
distinction as the player observes the character from an over-the-shoulder
third person perspective.27
     The persistent legislative effort to reign in violent and explicit games
stems from a pervasive and extremely common perception that such media is a
strong negative influence on minors.  There is a plethora of sociological data
and evidence supporting this view, as well as the opposite contention that
violent and explicit games have little effect, or no more so than movies, on
underage consumers.  A recent note in the Indiana Law Review provides a useful
primer on the latest arguments that the gaming industry has a deleterious
effect on minors.28  The contrary case is made by the libertarian Cato
Institute, among other sources:  "[T]here's little evidence of a link between
video games and aggressive youth. While the video game industry was exploding
between 1994 and 2000, juvenile (ages 15-17) violent crime arrests dropped by
44 percent and young adult (ages 18-24) violent crime arrests dropped by 24
percent, according to the U.S. Department of Justice."29  The most that can be
said for the conclusiveness of the research is, as Phillips notes, that "there
is little consensus on the effect of violent games," and "`[t]he empirical
literature on the effect of exposure to video game violent [sic] is
sparse.'"30
     The sparseness of data on the effect of exposure to game violence leads
inexorably to an editorial tone to any commentary on the subject.  One of the
most commonly cited and prolifically outspoken sources on the injurious
effects of licentious electronic games is Lt. Col. David Grossman, a
self-described "killologist" and author.31  Lt. Col. Grossman's theories on
the effects of violence in electronic games are widely disseminated and used
in support of legislative efforts to bar minors' access to the type of
material he questions.  Virtual Violence highlights one of the core arguments
of the somewhat pseudoscientific theory:

     Applying his knowledge of killology to violent video
     games, Grossman has discovered a "phenomenon that
     functions much like AIDS," which he labeled "AVIDS--
     Acquired Violence Immune Deficiency Syndrome."
     Grossman explains that while AIDS has never killed
     anybody, "[i]t destroys your immune system, and then
     other diseases that shouldn't kill you become fatal."
     Similarly, while violent video games do not kill
     people, "they destroy your violence immune system and
     conditio[n] you to derive pleasure from violence. And
     once you are at close range with another human being,
     and it's time for you to pull that trigger, Acquired
     Violence Immune Deficiency Syndrome can destroy your
     midbrain resistance."32
     
In addition to the academic application of Grossman's work, he and the
Killology Research Group, which distributes much of his writing, are active in
courting media appearances.33  The effect is to provide significant support to
grassroots efforts to restrict gaming access.  Grossman's writing is cited
approvingly by such active organizations as The Lion & Lamb Project.34
     Grossman's work is also used as fundamental research underlying the
annual "Report Card" issued by the National Institute on Media and the
Family.35  The level alarm exhibited in their reports has increased markedly
since they began in 1998.  The first report focused mainly on the effects of
violent games, exhibiting Grossman's research and mentioning the prevalence
and preference of youths for such entertainment only in passing.36  By the
2001 report, the authors had become concerned with nascent reports of
"compulsive" game playing in minors:

     While research on compulsive video game playing is just
     beginning, some disturbing trends appear to be
     emerging. There is some empirical evidence suggesting
     that perhaps as many as one in five adolescents who
     play video games may exhibit symptoms of compulsive
     game playing. . Compulsive game playing is something
     that will bear closer attention.37
     
By the 2002 report, reports of compulsive behavior had become a warning of
rampant addiction, based on the same empirical research cited in the previous
year's report.  "Estimates of the numbers of addicted children and adolescents
vary, but studies are beginning to show patterns of play behaviors that are
similar to other addictions. In a study of 387 12- to 16-year-olds, 20 percent
were classified as currently addicted to playing computer-based video games,
and one in four adolescents had been addicted at some point in their lives."38
The report warns of the dangers of the perceived epidemic of addiction,
pointing to a media account of a suicide blamed on computer game addiction.39
     The figures and theories at the forefront of the cultural resistance to
violent and explicit games have created a vibrant backlash from media and
academic sources as well as from the gaming industry.40  One of the leading
critics of the use of scientific studies to justify access restrictions is Dr.
Henry Jenkins, who argues that the usage of poorly construed studies is driven
by politics rather than science.

     The field of "media effects" research includes around
     300 studies of media violence. But most of those
     studies are inconclusive. Many have been criticized on
     methodological grounds, particularly because they
     attempt to strip complex cultural phenomena down to
     simple variables that can be tested in the laboratory.
     Most found a correlation, not a causal relationship,
     which means they could simply be demonstrating that
     aggressive people like aggressive entertainment.
     Only about 30 of those studies deal with video games
     specifically. And if you actually read the reports,
     most responsible researchers are careful to qualify
     their findings and are reluctant to make sweeping
     policy recommendations. None of them buy a simple
     monkey-see, monkey-do hypothesis. But the activists
     strip aside any qualifications, simplifying their
     conclusions and mulching together all of those
     contradictory findings. What they want is the aura of
     scientific validation, since that provides cover to all
     of their liberal allies who wouldn't support the Moral
     Majority but love to sound off about cultural
     pollution.41
     
Dr. Jenkins further illustrates the cultural clash between critics of violent
and explicit games and himself by detailing an on-air confrontation with
Daphne White, a representative of The Lion and Lamb Project, as a guest on
"Donahue."42  Challenged to defend "Grand Theft Auto 3," Jenkins replied:

     This isn't a virtual shooting gallery. Unlike earlier
     video games that give you no way forward except to
     slaughter everything that moves, this game offers an
     enormously expansive and responsive landscape. Certain
     plot devices cue you about possible missions, but
     nothing stops you from stealing an ambulance and racing
     injured people to the hospital or grabbing a fire truck
     and putting out blazes or simply walking around town.
     This open-ended structure puts the burden on you to
     make choices and explore their consequences. If you
     choose to use force, you are going to attract the
     police. The more force, the more cops. Pretty soon,
     you're going down. GTA3 is only as violent as we choose
     to make it and, used wisely, the game can tell us a lot
     about our own antisocial impulses. White dismissed all
     of this as "purely technical."43
     
Challenged by White to identify games with positive effects, Jenkins points to
several titles designed to both force players to make ethical choices and to
present their effects in the game.  This theme is echoed in Dr. Jenkins'
comments in the context of an interview with Penny Arcade, a popular online
comic strip and commentary forum primarily dedicated to computer and video
gaming.  He argues that even the most violent games have redeeming factors,
and that the industry is intentionally engaged in designing titles that raise
significant issues.

     [G]ame designers are also in the business of the long-
     term development of their medium and long-term profits
     depend upon them diversifying their audience and
     achieving a certain level of artistic accomplishment
     with their games . When I play Grand Theft Auto 3 and I
     take out a baseball bat and bludgeon a whole bunch of
     people, I have to say that I did that, because I had
     the choice not to do that. We should get games to the
     point where the players are reflecting on the choices
     they make. "Black & White" is another example of this,
     everything you do has consequences based on your
     choices in that world.44
     
The industry, as indicated by the prevalence of such design decisions, is
reacting to the concern over violence in games by incorporating that
discussion into the product itself.  The initiative and the spirited discourse
it produces in the real world suggest strongly that games can and do
communicate significant ideas through their design.
     The discussion as to the role of gaming in informing and highlighting
ethical and moral quandaries is complex and prevalent in many commentaries.
It is eclipsed, however, by the vehemence and vitality of the debate over
whether games are harmful to minors and whether minors should have their
access to such products curtailed.  The current state of this dialogue among
popular commentators, and in many ways among academics and legislators, is
perhaps best expressed by the artists and pundits of Penny Arcade:

(45)

The ongoing debate is obviously intense and often lively, driving the debate
over a variety of access-restricting laws and gaining strength and speed from
the judicial response to those efforts.

                                Legal Setting

     The predominant cases controlling the question of access restriction to
violent and explicit games are the Kendrick and IDSA lines of cases, in which
laws in Indiana and Missouri were upheld by district courts before being
overturned by their respective circuits.46  The logic the district courts
followed varied; Kendrick I and IDSA I are sharply varying decisions with
respect to the tack and depth of their reasoning.  Each highlights a
significant vein of thought in the battle over the characterization of
electronic games as protectable free speech.  The associated appellate
opinions overturning each of the district rulings set the prevailing climate
in this characterization.  The cases are critical to an understanding of the
state of the law with respect to restricting minors' access to violent and
explicit games and are deserving of individual analysis.

                              Kendrick I and II

     The first case to solidly address minors' rights to access violent and
explicit games under the First Amendment was Amusement Machine Association v.
Kendrick.  Although reversed by the Seventh Circuit, it pursued in many ways
the most in-depth analysis of the issues at hand.  Its reasoning was briefly
addressed but ultimately rejected by the IDSA I court but has helped to inform
more recent attempts to install legislative barriers to game access.
     Plaintiffs in Kendrick I sought to overturn a local ordinance barring
"the display and operation of coin-operated amusement machines (primarily
video games) deemed `harmful to minors' if they include either `strong sexual
content' or `graphic violence'" as defined by the ordinance.47  The plaintiffs
sought, and were denied, preliminary injunctive relief on the theory that the
restrictions on violent material were unconstitutionally vague content-based
speech restrictions.48  The plaintiffs, manufacturers of the games in
question, were successful in having the ordinance stayed pending appellate
review of the ruling; that review vindicated their position.49
     The court begins with a lengthy analysis of the ordinance in question
before moving on to its two core issues.50  This analysis is worth noting for
two reasons.  First, the ordinance in question applies solely to publicly
situated games; in practical terms, to coin-operated arcade games.51  This
narrow approach of the ordinance does not diminish the significance of the
ruling or its logic, as the reasoning there is equally applicable to video
and computer games sold or rented for use in the home.52  The analysis also
notes that there was a surprising amount of legislative history attached to
the ordinance and gives some indication of what that material included.  The
opinion indicates that in addition to public commentary from parents' groups
and industry representatives, "several reports on the subject of children and
violence in the media were made available" to the Public Policy Committee of
the City-County Council of the City of Indianapolis and Marion County.53  The
inclusion of this material in the debate preceding enactment of the ordinance
indicates the impact of commentators and organizations such as those described
above; the industry and cultural setting of electronic entertainment has a
significant real-world effect on such regulatory legislation.
     The district court extracted two central issues from the controversy in
Kendrick I.  The underlying issue, which the court disposed of relatively
quickly, was the question of whether violent electronic games could be
construed as a form of expression protected by the First Amendment.54  While
the court did not find this to be a difficult issue, itsreasoning later became
significant in the IDSA line of cases.  Second, the court addressed whether
the obscenity standards espoused in Ginsberg v. State of N.Y. were applicable
to a regulation of violent electronic games.55  This issue, reflecting the
bulk of the opinion, is less important given the Seventh Circuit's dismissal
of the reasoning.  The district court's application of Ginsberg does
illustrate, however, the sophisticated reasoning being applied to such
regulatory efforts.
     The underlying characterization of the district court's ruling is nuanced
if ultimately unpersuasive.  It provides a brief but thorough listing of cases
from the 1980s characterizing the expression inherent in games.  Among other
state supreme court opinions, the Kendall I court identifies a pair of 1983
Massachusetts Supreme Judicial Court opinion rejecting arcade games such as
"Mrs. Pac-Man," "Donkey Kong," and "Zaxxon" as protected expression.56  The
Massachusetts court opined in a related case, also cited by Kendall I:

     From the record before us, it appears that any
     communication or expression of ideas that occurs during
     the playing of a video game is purely inconsequential.
     Caswell has succeeded in establishing only that video
     games are more technologically advanced games than
     pinball or chess.   That technological advancement
     alone, however, does not impart First Amendment status
     to what is an otherwise unprotected game.57
     
This holding was characteristic of similar cases that arose and were disposed
f in the 1980s in several states.58  The court recognized that these cases no
longer reflected an adequate approach to contemporary games, given the
striking evolution in technology and design.59
     The field was left fallow during the 1990s, with few cases arising to
address the speech characteristics of games.60  This left Kendrick I itself as
the first on-point challenge to the prevailing logic that games were, at most,
in a gray area of jurisprudence possibly outside of the First Amendment.61
The technology behind the regulated games had matured greatly, and the
Kendrick I court properly approached the issue as a novel case, separate from
(although perhaps informed by) earlier cases predicated on vastly simpler
games.  The court noted that the prevailing standard promulgated by the
Supreme Court required nothing more than a loose analysis particular to the
medium.  "Each medium of expression ... must be assessed for First Amendment
purposes by standards suited to it, for each may present its own problems."62
With this charge in mind, the court focused primarily on the plaintiff's
presentation of the "Gauntlet" series of games as an example of protectable
speech in the medium.  Although the plaintiffs merely described, rather than
demonstrated, the game to the court, it found that the simplistic plot
(summarized in a single brief paragraph) along with the visual art could
constitute protected material.63  Similarly, the court noted that other games
discussed by the parties contained elements of plot and character that
indicated "at least some degree of First Amendment protection," which the
defense conceded.64
     Having determined that some games indisputably carried First Amendment
protection, the court proceeded to analyze several games which the city
contended did not.  These included, notably, "first person shooter" games of
the genre most commonly identified as harmful by activists.65  Pointing out
the limited plot elements and other speech characteristics of such games as
"Ultimate Mortal Kombat 3," "Maximum Force," and "The House of the Dead 2,"
the court found that some of the regulated games did not rise to the level of
protected speech.  "The court has no difficulty determining that any speech
elements of [such games] are relatively inconsequential--perhaps even so
inconsequential as to remove the game from the protection of the First
Amendment."66   The effect of this analysis was to find that electronic games
could certainly be protected speech, but that in a case-by-case analysis, many
would be too simple or one-dimensional to convey sufficient expression to
deserve protection.
     Having determined that the regulation of protected speech was the issue
at hand, the court relied heavily on Ginsburg to apply a fairly strict
scrutiny.  It required the city have a compelling interest and tailor its
regulations to advance that interest.67  The court fell to sorting the
parties' respective scientific evidence but disposed of the issue by noting
that the city reasonably relied on appropriate data:

     The social science data in the record reflect some
     uncertainty, but the data also indicate that the City
     had a solidly reasonable basis for enacting the
     Ordinance.   The Ordinance's legislative history also
     makes it clear that the Ordinance is the product of
     considered legislative judgment as to both the problem
     and the means chosen to address it.68
     
Given the impossibility of obtaining definitive scientific proof of the
reasonableness of the city's fears, the court determined that it was
sufficient that the city's legislative effort was based on more that more than
"mere legislative conjecture and surmise."69  Again, the court's focus shows
how essential the widespread debate over the harmfulness of electronic gaming
was in influencing the lawmakers.
     The remainder and bulk of the Kendrick I opinion is dedicated to
determining the extent to which violence may be considered obscenity for the
purpose of the regulation of speech.  The court decided that violence could
reasonably be lumped into obscenity standards, pointing out in its conclusion,
"It would be an odd conception of the First Amendment and "variable obscenity"
that would allow a state to prevent a boy from purchasing a magazine
containing pictures of topless women in provocative poses, as in Ginsberg, but
give that same boy a constitutional right to train to become a sniper at the
local arcade without his parent's permission."70  The Seventh Circuit
disagreed, ruling in Kendrick II that "[v]iolence and obscenity are distinct
categories of objectionable depiction."71  Relying on this characterization,
the court determined that the Ginsberg standard, which does not require
scientific evidence of the harmfulness of explicit materials, was not
applicable.72  Judge Posner ruled that without such evidence in record, the
statute must fall as an impermissibly broad regulation; the case was remanded
with instructions to enter a preliminary injunction and indicated that a
permanent injunction was the likely outcome of further proceedings.  The
decision overturned the district court's creative assignment of violent images
to the standard obscenity calculation and applied standard speech protection
analysis to the ordinance.
     This is in many ways the most important feature of the Kendall II opinion
- it clearly outlines the circuit's position on the speech nature of
electronic gaming.  Posner's dicta clearly indicate that he places gaming in
the same space as more traditional media; the court briefly considers and then
decisively disposes of the idea that the interactive nature of games excerpts
them from other forms of communication:

     Maybe video games are different.   They are, after all,
     interactive.   But this point is superficial, in fact
     erroneous.   All literature (here broadly defined to
     include movies, television, and the other photographic
     media, and popular as well as highbrow literature) is
     interactive;  the better it is, the more interactive.
     Literature when it is successful draws the reader into
     the story, makes him identify with the characters,
     invites him to judge them and quarrel with them, to
     experience their joys and sufferings as the reader's
     own.73

The court's dicta here and elsewhere seems exquisitely clear; Posner compares
the interactivity of electronic games to the works of Charles Dickens and
James Joyce and extols the positive cultural message of "Ultimate Mortal
Kombat 3."74  For all the clarity of this language, however, it is largely
dicta; the holding of the case turns on the application of Ginsburg and
relatively quotidian obscenity analysis.75

                                IDSA I and II

     The Seventh Circuit's failure to solidly address the speech nature of
electronic games may have provoked the court in IDSA I to go further than
necessary in ruling that games could not be considered speech.  The IDSA I
case arose under circumstances similar to those that produced Kendrick.  The
St. Louis County Council, wishing to restrict the access of minors to violent
and sexually explicit arcade, video, and computer games, passed an ordinance
essentially criminalizing the sale or rental of a game known to be "harmful to
minors," and to segregate arcade games meeting the same criteria.76  Although
the statute was further reaching than the Kendrick ordinance, its effects and
implications were similar.  The Interactive Digital Software Association, a
collection of manufacturers, publishers, and retailers, sued to enjoin the
operation of the statute. They failed before the district court, which
"considered and upheld the constitutionality of the ordinance in the course of
ruling on the plaintiffs' motion for summary judgment [and] sua sponte
dismissed the case."77  The Eighth Circuit balked at this broad ruling and
overturned the district court.
     IDSA I was a higher-visibility case than Kendrick from the very start due
to the timing of the case and the relatively high profile of the judge.78
Kendrick had reached fruition before the IDSA I opinion issued; the relevant
questions were aired and maturing, giving interested parties time to gear up
their responses to the results in Kendrick.  By the time the case reached the
Court of Appeals, prominent interest groups such as The Lion and Lamb Project
had mobilized and filed amici briefs of their own.79  The increased attention
may also have stemmed from the further-reaching nature of the opinion, which
was interpreted by many commentators as a flat holding that games could not
rise to the level of speech.
     The IDSA I court ultimately ruled that even if games were speech, the
ordinance would be valid under strict scrutiny as the County had a compelling
motive in protecting children and narrowly tailored its regulation to that
effect.80  On these grounds, it felt secure in denying the IDSA's motion for
summary judgment and dismissing the case even if it had been determined that
games were deserving of strict scrutiny as protected speech.  Rather than
resting on this conclusion, however, the court clearly and unequivocally
rejected the idea that games could be speech; this seemingly unnecessary
analysis prompted a great deal of commentary and makes Limbaugh's opinion
significant even though it was rejected by the Eighth Circuit.81
     The district court began with the proposition that "In order to find
speech, there must exist both an intent to convey a particularized message and
a great likelihood that this message will be understood."82  It applied this
standard to the reasoning and rulings of a number of cases drawn from the
1980s, finding that "a video game, like a pinball game, a game of chess, or a
game of baseball, is pure entertainment with no informational element."83
Relying partly on this line of reasoning, as well as other cases from the same
time period, the court analogized electronic games to bingo and other physical
games.84

     It might seem odd that the Court is comparing video
     games to games of Bingo, however, most of these simple
     games can and have been created in video form.  The
     Court has trouble seeing how an ordinary game with no
     First Amendment protection, can suddenly become
     expressive when technology is used to present it in
     `video' form.85
     
The court's holding that electronic bingo could not convey significant
information was quickly applied to electronic games as a whole.  IDSA I did
not follow Kendrick I in assuming that the medium of electronic games could
contain titles that were protected alongside those that were not.  Rather,
Limbaugh announced, "This Court has difficulty accepting that some video games
do contain expression while others do not, and it finds that this is a
dangerous path to follow."86  The court adopted the position that novel media
should be assigned protected status when appropriate altogether or not at
all.87  Under this standard, the county's tactical approach to demonstrating
the concept of an electronic game to the judge proved to be a sweeping
success.
     The IDSA, attempting to show the court that games could present
significant information that would be understood by the users, presented as
evidence scripts and other development material in an attempt to analogize
electronic games to movies and literature.88  The court found this material
utterly unpersuasive in a rather unusual train of reasoning.  The scripts, the
court decided, might be considered protected speech on their own.  The
products enacting those scripts, however, would have to stand or fall without
regard to such material.

     The Court admits that these "scripts" were creative and
     very detailed.  However, almost every new creation
     and/or invention, starts as a "creative concept in the
     minds of the [ ] developers, who brainstorm,
     collaborate, and sketch scripts."  Every product put on
     the market came from a creative concept.  Most of the
     developers had to write down their ideas, and had to
     sketch pictures in order to convey their ideas to
     others working on the project.  However, this
     "background" expression does not make every automobile,
     gadget, or machine created, a form of expression.  .
     Plaintiffs claim that the final product contains
     "extensive plot and character development."  However,
     plaintiffs did not show the Court the final product,
     the video game, and the issue in this cause of action
     is whether plaintiffs' video games are a form of
     expression, not whether plaintiffs' "scripts" are a
     form of expression.  The Court must look at the video
     games in their context, in the environment in which
     they are presented.89
     
The plaintiffs' failure to present an actual game, or even recorded footage,
to the court opened the door for the defense to set the stage for Judge
Limbaugh's reasoning.  Given an effectively blank check to show the court what
an electronic game looks and sounds like, the defense creatively and
effectively constructed a presentation that was crucial to the court's
sweeping ruling that games could not be cast as protected speech.
     St. Louis County presented the court with a videotape containing selected
footage from four different games, which the court identified as "`The
Resident of Evil Creek', `Mortal Combat,' `DOOM,' and `Fear Effect.'"90  It
may reflect on the quality of the court's analysis that of the four titles
named, only two are correct.  The court presumably witnessed footage from
"Resident Evil" and "Mortal Kombat."  While minor errors, they were widely and
often derisively commented upon.91  The games chosen for this highly selective
lineup seem to have been selected not only for violent and relatively
simplistic content, but also for their age.  Each of the titles presented by
the county was at least five years old.92  The effect of this selection, in
the words of Dr. Jenkins, was to suggest a static rather than evolving
medium.93  The influence of this selection bias may be apparent in the court's
acceptance of cases from the 1980s dealing with antiquated games as meaningful
commentary on the systems and titles at issue in 2002; this approach was
rejected by Kendrick I as unrealistic.94
     Having decided that electronic games must be protected as speech or
excluded from this category altogether as a medium and internalized a
conception of such games as simplistic and unevolving, the court found that
the plaintiffs "failed to meet their burden of showing that video games are a
protected form of speech under the First Amendment."95  While this finding is
not necessarily a judicial holding that games can never rise to the level of
protected speech, the lengthy reasoning and seemingly extraneous nature of the
finding suggested to many observers that Limbaugh had seized an opportunity
for judicial commentary.96  The analysis is certainly the fulcrum of the
opinion, and carries much of its force in setting the tone for later
litigation and commentary.  It is, however, unnecessary to the final ruling of
the court.  IDSA I determined that even if the IDSA had shown that games were
protected speech, strict scrutiny would fail to implicate the county's
ordinance as an unlawful content-based regulation.  The court found that the
testimony presented a trial, notably testimony from a professor of psychology
and an elementary school principal, established "that the County has
compelling interests in regulating the distribution of violent video games to
minors."97  Combined with a finding that the ordinance was narrowly tailored,
allowing parents to easily give their children consent to access violent
gaming materials, Judge Limbaugh determined that the regulation would survive
strict scrutiny even if he had not judicially determined that such scrutiny
was unwarranted.98
     The Eighth Circuit determined that that the district court erred in
denying the IDSA's motion for summary judgment.99  Drawing heavily on Judge
Posner's Kendrick II opinion, the circuit clearly determined that electronic
games cannot be excluded as speech in an almost brutally brusque opinion.
"Our review of the record convinces us that these `violent' video games
contain stories, imagery, `age-old themes of literature,' and messages, `even
an 'ideology,' just as books and movies do.'"100  Strongly echoing the Seventh
Circuit, IDSA II noted explicitly that interactivity made electronic games
more analogous to protected literature, rather than less.101  Having
succinctly overturned the district court's finding on the need for strict
scrutiny, the circuit proceeded to note that the ordinance could not survive
such an examination due to a failure to show a compelling interest.  "[W]hen
the government defends restrictions on speech `it must do more than simply
posit the existence of the disease sought to be cured.'"102  The circuit did
not find persuasive scientific evidence in the record.  It called the
testimony of the county's psychologist a "vague generality," and characterized
the remainder of the evidence as "the conclusory comments of county council
members;  a small number of ambiguous, inconclusive, or irrelevant (conducted
on adults, not minors) studies;  and the testimony of a high school principal
who admittedly had no information regarding any link between violent video
games and psychological harm."103  The circuit court's opinion concludes with
an almost mocking tone, denying that the county has an interest in supporting
parental controls superior to the first amendment rights of minors:  "To
accept the County's broadly- drawn interest as a compelling one would be to
invite legislatures to undermine the first amendment rights of minors
willy-nilly under the guise of promoting parental authority."104
     The Eighth Circuit's opinion is short, simple, and almost brutally
efficient in overturning Judge Limbaugh's ruling.  It clearly and concisely
finds that creative works presented in the context of an electronic game
cannot be denied First Amendment protections as a result of the medium.  As a
recent opinion, commentary is somewhat limited; the clear and simple reasoning
of the circuit, however, and its strong support of the similar Seventh Circuit
ruling, is an unambiguous indicator that future litigants will face an uphill
battle when arguing against the speech characteristics of games.  The issue is
almost certain to be relitigated; access regulations are being proposed and
drafted in a number of states, and national legislation has under committee
review in the House of Representatives.105

                                Legal Policy

     The Protect Children From Videogame Sex and Violence Act of 2003,
currently pending before the House Subcommittee on Crime, Terrorism, and
Homeland Security is an eidolon of misguided legislation that impermissibly
burdens the First Amendment rights of minors.106  The legislation, based on
the same social pressures that drove the regulations at issue in Kendrick and
IDSA, follows the logic that the circuits discredited in those cases.  Both
appellate decisions rightly found that electronic games as a medium are fully
capable of rising to the level of protected speech.  The relevant standards in
regulating speech based on its content are drawn from R.A.V. v. St. Paul and
applied in both Kendrick II and IDSA II.107  R.A.V. essentially requires
narrow tailoring and a compelling government interest to justify content-based
regulation.  These standards apply even when regulating the access of minors;
while their rights may not be coterminous with adults' rights, it is not
contested that the do have First Amendment rights.108  H.R. 669 and the
arguments advanced in favor of it and similar legislation provide the best
possible case for such regulations, but fail on both points.
     The interest offered by H.R. 669's preambulatory language and by the
defense in both Kendrick and IDSA is the government's interest in keeping
minors from harmful material and assisting parents in protecting their
children.  These justifications are not inherently invalid.  Certainly, if
playing violent games had a discrete, definable, and observable effect on
children the interest would be strong.  If children who played violent games
were twice as likely to develop violent antisocial tendencies as other
children, the interest would be undeniably compelling.  Research has not shown
such a powerful effect, however.  While there is no consensus, much of the
research cited in favor of the St. Louis and Indianapolis ordinances was later
discredited, or shown to be woefully inadequate to demonstrating a compelling
state interest.  The Eighth Circuit noted that St. Louis relied on "a small
number of ambiguous, inconclusive, or irrelevant (conducted on adults, not
minors) studies...and the testimony of a high school principal who admittedly
had no information regarding any link between violent video games and
psychological harm."109  A great deal of the research on both sides of the
issue is profit-driven; Lt. Col. Grossman's "Killology Research Group" sells
his books and several series of audio and video tapes through its website.110
The same accusation is leveled at prominent researchers such as Dr. Jenkins,
whose research has in some cases been subsidized by the gaming industry.111
The state of the art in understanding the effect of gaming violence on
children is extremely muddled and unclear, and it seems impossible to assert a
compelling interest based on indeterminate and often biased studies.
     While H.R. 669 makes no particular effort to overcome this hurdle,
declaiming simply "The Nation has a compelling interest in [regulating
access]," the county defendants in IDSA I drew up an original and highly
effective argument in support of their claimed interest.  In addition to the
scientific evidence that was later rejected by the courts, the defense pointed
to the voluntary ESRB rating system employed by the gaming industry.112  If
the industry is motivated enough to employ a system noting which games are
not recommended for minors, the county reasoned, then it must believe that
there are deleterious effects implicit in violent and explicit games.  This
argument was incorporated into the preambulatory text of H.R. 669.113  Noting
that games carrying the ESRB's "Adults Only" rating are not recommended for
consumption by anyone under the age of eighteen, the court insisted that
"[f]or plaintiffs to now argue that violent video games are not harmful to
minors is simply incredulous."114  The county successfully buttressed its
scanty scientific evidence with the plaintiff's self-regulatory scheme.  While
this tactic is creative, it failed to move the appellate court.  The Eighth
Circuit did not find it persuasive, however.  IDSA II noted that a compelling
state interest must be supported in such a case with solid evidence; "Where
first amendment rights are at stake, `the Government must present more than
anecdote and supposition.'"115  Whose anecdote and supposition is unimportant;
unless the ESRB's rating system is based on reliable evidence that supports
the challenged state regulation, it is no more admissible as proof of a
compelling interest than the state's own unsupported assertions.
     The best arguments for a compelling government interest fail to meet the
burden illustrated by the Seventh and Eighth Circuits.  The most significant
proposed regulation rests its alleged interest on uncertain science ("six of
the Nation's most respected public health groups...found that viewing
entertainment violence can lead to increases in aggressive attitudes,
behaviors, and values, particularly in children"), a vaguely asserted public
belief ("The Nation has a compelling interest in [regulating minors' access to
violent games]"), and an even more vaguely asserted belief on the part of
industry ("ratings and content descriptors...reflect the notion that certain
video and computer games are suitable only for adults").116  As shown, there
is no scientific consensus that violent games equate to violent behavior; no
such contention has survived in court, and barring significant advances in the
research it is unlikely that it will in the near future.  Additionally, it is
explicitly clear that an ambiguous declaration that a compelling interest
exists, or that any consensus exists without a fairly definite showing, is
insufficient to sustain an actual interest compelling enough to override the
First Amendment rights of minors.
     Even if a showing of compelling interest were possible, no currently
proposed legislation is narrowly tailored enough to survive the standards
applied to content-based regulations of speech.117  The operative language of
H.R. 669 is extremely simple.  It reads, in its entirety, "Whoever sells at
retail or rents, or attempts to sell at retail or rent, to a minor any video
game that depicts nudity, sexual conduct, or other content harmful to minors,
shall be fined under this chapter."118  This language is essentially similar
to the regulations at issue in both Kendrick and IDSA, and just as the scope
of the local ordinances at issue increased from Kendrick to IDSA, H.R. 669 is
the broadest yet of any legislative effort.119  The vagueness of these
standards is apparent in the language of  2732; rather than expressly
regulating violent content, "other content harmful to minors" is expanded
through the act's definitions to include graphic violence, "the visual
depiction of serious injury to human beings, actual or virtual."120  This
extremely broad language would certainly include in its comprehensive sweep
games that, at first blush, hardly appear offensive.  "Black & White," a game
commonly used as an example of the complex philosophical and moral issues
games are capable of raising in order to challenge the player on an
intellectual level, includes as part of its design the ability to injure or
kill virtual villagers.  While its content would place it under H.R. 669's
access restrictions, it is rarely if ever challenged as a title harmful to
minors.  Rather, it is often cited as the paragon of beneficially stimulating
games, one of a class of titles designed to pose a series of ethical
challenges and present the results of the player's actions in-game.121
     The ability of games to reach significant moral and ethical quandaries as
part of their design is often overlooked by critics.  Dr. Jenkins argues that
the initiative is a critical part of the function of games:

     We need our story-tellers and artists to help us think
     about the nature of violence. Having said that, the
     question, then, is not, "Can we get rid of violence in
     entertainment?" but rather, "How will entertainment
     deal with violence?". It's a separate question - Can we
     make violence in games more meaningful and in a way
     that forces the player to reflect on the nature of
     violence and the darker sides of their own
     personalities. I don't think this is overly ambitious
     at all. There are already games that have a piece of
     this in them. Look at "The Sims" and the mourning
     function there. A character dies and the other
     characters mourn the loss. Games are the only medium
     where the consumer can truly feel guilt. If I watch a
     movie and something bad happens, I wasn't the one who
     did it. I can separate myself from the character and
     say, "That's a horrible person".
     
Restricting access to games under this theory of social significance would not
only fail to protect minors, it would harm them by lopping off an inarguably
impressionable segment of the population from a useful tool for socialization
and learning.  If games have the teaching and training effect that critics
allege, then surely it is equally important that sophisticated and
intellectually stimulating titles reach all segments of the market; the broad
and sweeping restrictions in the currently proposed legislative efforts fail
to address this need.
     Judge Posner lends support to this theory in his IDSA II opinion.  He
contends that not only do minors have the right to access violent games, but
that it may be important for the health of society that they do so:

     This is not merely a matter of pressing the First
     Amendment to a dryly logical extreme.   The murderous
     fanaticism displayed by young German soldiers in World
     War II, alumni of the Hitler Jugend, illustrates the
     danger of allowing government to control the access of
     children to information and opinion.   Now that
     eighteen-year-olds have the right to vote, it is
     obvious that they must be allowed the freedom to form
     their political views on the basis of uncensored speech
     before they turn eighteen, so that their minds are not
     a blank when they first exercise the franchise.   And
     since an eighteen-year-old's right to vote is a right
     personal to him rather than a right that is to be
     exercised on his behalf by his parents, the right of
     parents to enlist the aid of the state to shield their
     children from ideas of which the parents disapprove
     cannot be plenary either. People are unlikely to become
     well-functioning, independent-minded adults and
     responsible citizens if they are raised in an
     intellectual bubble.122
     
Posner suggests that such a bubble would be the inevitable result of flatly
barring access to materials considered potentially troublesome by mainstream
society; certainly, given the context of the case, he was thinking explicitly
of violent games.  An overly broad ban on all games with violent content would
create the stultifying effect that Posner fears, and it is difficult to posit
a sensible narrowly tailored restriction.  Simply preventing minors from
viewing depictions of the most extreme sorts of virtual violence, such as
sexual violence, "aggravated assault, decapitation, dismemberment, or death,"
would not be sufficient.123  Posner posits that the most grisly images can and
do have significant speech value, and eloquently illustrates the place of
disturbingly graphic violence in literature and art.

     No doubt the City would concede [the value of graphic
     depictions of violence] if the question were whether to
     forbid children to read without the presence of an
     adult the Odyssey, with its graphic descriptions of
     Odysseus's grinding out the eye of Polyphemus with a
     heated, sharpened stake, killing the suitors, and
     hanging the treacherous maidservants;  or The Divine
     Comedy with its graphic descriptions of the tortures of
     the damned;  or War and Peace with its graphic
     descriptions of execution by firing squad, death in
     childbirth, and death from war wounds.   Or if the
     question were whether to ban the stories of Edgar Allen
     Poe, or the famous horror movies made from the classic
     novels of Mary Wollstonecraft Shelley (Frankenstein)
     and Bram Stoker (Dracula).   Violence has always been
     and remains a central interest of humankind and a
     recurrent, even obsessive theme of culture both high
     and low.   It engages the interest of children from an
     early age, as anyone familiar with the classic fairy
     tales collected by Grimm, Andersen, and Perrault is
     aware.   To shield children right up to the age of 18
     from exposure to violent descriptions and images would
     not only be quixotic, but deforming;  it would leave
     them unequipped to cope with the world as we know it.124
     
It may be that only the most violent of games could potentially effect
children's behavior.  Given this reasoning, however, it may be that that
effect would be not only positive but essential.  Violent images engage not
only prurient interests, but as Judge Posner and commentators such as Dr.
Jenkins note, the highest moral and intellectual interests as well.
     Dr. Jenkins notes the similarity of film and electronic games in this
context.  "Think about cinema. What if, all these years later, all anyone had
ever written about was violence? We'd think it had completely trivialized an
enormous epoch in the history of media."125  This illustrates the difficulty
in crafting narrowly tailored content-based regulations.  If film were
regulated in the same way that industry critics propose regulating games, then
many significant films would be barred from minors.  From classic works such
as "Aleksandr Nevsky" to popular modern epics in the vein of "Schindler's
List" and "Saving Private Ryan," minors would be isolated from violent and
disturbing images with a valuable social context.  Even if a compelling
interest could be constructed and defended in court, it is almost impossible
to imagine a sufficiently narrow regulation.  Isolating pure, mindless
violence and leaving a safe harbor for redeemable, significant, and valuable
if disturbing contributions to the medium, be it film or games, would require
an almost case-by-case construction of the regulation.
     Again, the county defendants in IDSA managed to create a creative and
original argument in favor of just such a construction.  Faced with the
difficulty of crafting narrow rules, and the industry's pressure to remain
self-regulating, the St. Louis County Council crafted a flexible and ingenious
solution.  The ordinance in question turned on the operative language "harmful
to minors," in a manner similar to H.R. 669.126  This phrase activated the
various provisions of the ordinance, which forbade retailers from selling or
renting material that fit that description to minors.  The ordinance contained
language defining "harmful to minors" as material that "`predominantly appeals
to minors' morbid interest in violence', `is patently offensive to prevailing
standards in the adult community as a whole with respect to what is suitable
material for minors, lacks serious literary, artistic, political or scientific
value as a whole for minors, and contains...graphic violence.'"127  In
addition to this language, however, the ordinance created a "`rebuttable
presumption that video games rated 'M' or 'AO' by the Entertainment Software
Review Board (ESRB) are harmful to minors.'"128  Games rated "T," "EC," or "E"
were presumed to not fit the "harmful to minors" criteria.129  This
effectively gave official color and weight of law to the industry's own rating
standards, allowing independent review boards to classify individual games and
determine their place under the regulation.
     The attempt failed, as the Eighth Circuit determined that the ordinance
was invalid before reaching the question of whether it was sufficiently
narrow.  The county's solution to the problem, however, is innovative and
potentially useful.  If a compelling interest is ever established, only such a
flexible and narrow regulation could hope to thread the needle carefully
enough to meet the perceived interest in restricting access to prurient
materials while allowing minors to access games with socially redeemable
features.  This hypothetical system would require changes to the ratings
system currently in place, however, as it assesses games purely on the nature
and quantity of violent and explicit material, without regard to the title's
literary significance.130  The underlying definitions of such a system would
also need to be narrower than the St. Louis County ordinance, which
incorporated a broad concept of material "harmful to minors."  The ordinance
in that case would allow games vetted by a favorable rating, even one
predicated on social value, to carry only a rebuttable presumption of free
access by minors.131  A game found to have redeeming literary value would
still be subject to regulation under the broad and strict standards of the
usual "harmful to minors" characteristics.132
     The St. Louis ordinance, like H.R. 669, would seem at first glance to
have an escape clause evading these issues of narrow tailoring; both statutes
contain exceptions for material with "serious literary, artistic, political or
scientific value as a whole for minors."133  If consistently and strongly
applied, these exceptions would seem to require exemptions for games with
significant literary components.  It seems unlikely, however, that such a
provision would be applied in difficult cases  Where communities are operating
under the assumption that violent games are "murder simulators," hysteria and
inaccurate perceptions of electronic games, along the lines of Judge
Limbaugh's operating assumptions, are likely to trump an escape hatch for
undefined literary, artistic, political or scientific values.134  Stronger and
more flexible protections are needed to defend the First Amendment rights of
minors against such vitriolic attacks; even a case-by-case analysis may be
insufficient to protect the introduction of crucial if difficult material into
minors' experience; a blanket exemption with no clear guidance is unlikely to
be an effective defense against overzealous regulators.
     The First Amendment rights of minors are exactly what is at stake with
the continuing introduction of legislation designed to bar them from violent
games.  Obviously, both compelling interest and narrow tailoring requirements
are moot if games are denied speech status; without this designation, strict
scrutiny by the courts is not required.  While this is the most important
issue, then, in many ways it is also the simplest.  Although both IDSA and
Kendrick were eventually decided on other grounds, the most memorable and
widely comment-on features of those cases were their respective positions on
the speech nature of games.  Judge Limbaugh's position, widely vilified by
commentators and gamers, seems woefully out of touch with the state of the art
in electronic gaming.  Despite his argument that scripts alone could not grant
speech status to a game, it is difficult to see how a game produced from a
detailed and in-depth scripting of dialogue, art, and action differs so
substantially from a film that it loses its First Amendment protections.135  A
recent best-selling computer and video game, "Max Payne 2," incorporated a
632-page script, voice actors, and graphic artists to create an immersive
"film noir" experience "told in flashback and out of sequence."136  The same
resources applied to a literal "film noir" would create an impressively
artistic work that without question would be protected under the first
amendment.  It is difficult to see what characteristics, if any, separate the
game from the hypothetical twin movie.
     The most persuasive argument in favor of such a distinction is that the
game would have a disproportionately large impact on its minor audience, due
to the length of immersion and increased interactivity.  While many games last
dozens of hours, it seems difficult to argue that more of a work equates to
less value of speech.  The overwhelming effect of interactivity is a more
powerful argument, as the interactive nature of games is both self-apparent
and clearly significant.  The script in the game "Max Payne" is actually
longer than it would be in a facially identical movie, because it contains
ancillary dialogue and alternative material that a player may never encounter
in a single play-through.137  The additional material in such designs presents
conversations that may never happen as the result of players' choices in often
Byzantine situations.  In the context of a film, a protagonist's encounter
with a bartender will end the same way, every time; he will always order the
same drink or have the same conversation.  In a game, the player's choices may
include ""I'll take a drink," "I'll get a drink later" and "The separation of
powers acknowledges the petty ambitions of individuals; that's its
strength.""138  The players' choices are often dependent on his earlier
decisions, and will almost always affect what options and consequences arise
later.  This focuses the player's attention and engages the mind in unique
ways, and it cannot be denied that during such engagement a game is having a
vastly greater impact on the player than an equivalent film or book.
     This argument fails to capture, however, the importance of interactivity
as a hallmark of protected speech.  The greater impact games have on their
players should be cause for greater protection from unnecessary regulation.
As Judge Posner notes, "All literature is interactive;  the better it is, the
more interactive."139  Even the most seemingly mindless and violent games may
gain a measure of significance and value from their interactive nature.
Posner describes the experience of a player of "The House of the Dead," a
popular and sanguinary arcade game:

     The player is armed with a gun--most fortunately,
     because he is being assailed by a seemingly unending
     succession of hideous axe-wielding zombies, the living
     dead conjured back to life by voodoo.   The zombies
     have already knocked down and wounded several people,
     who are pleading pitiably for help;  and one of the
     player's duties is to protect those unfortunates from
     renewed assaults by the zombies.   His main task,
     however, is self-defense. Zombies are supernatural
     beings, therefore difficult to kill.   Repeated shots
     are necessary to stop them as they rush headlong toward
     the player.   He must not only be alert to the
     appearance of zombies from any quarter;  he must be
     assiduous about reloading his gun periodically, lest he
     be overwhelmed by the rush of the zombies when his gun
     is empty.  Self-defense, protection of others, dread of
     the "undead," fighting against overwhelming odds--these
     are all age-old themes of literature, and ones
     particularly appealing to the young.140

Posner describes an extremely simplistic and violent game; as he dryly
comments, it is not `distinguished literature.'141 But its interactive nature
makes it immersive; the themes of dread, self-defense, and overcoming great
odds may be lost if the same experience were presented on film.  It is
difficult to imagine artistic significance in an endlessly repetitive display
of zombies being shot; even the basest horror movies contain characterization
and cinematic elements not present in a game as viscerally simple as "The
House of the Dead."  By virtue of its interactivity, the themes Posner
identifies are transmitted in the game where they might have been lost in an
identical film.  It could be argued, then, that interactivity should grant
more protection to media, rather than less; interactivity is a mark of
literary merit, and transmits significant information that may be lost in its
absence.
     Given the burgeoning importance of electronic gaming and the conclusion
that games are protectable as speech, legislative efforts like H.R. 669 should
be overturned by the courts as impermissible burdens on the First Amendment
rights of minors.  It may be, as Kendall I decided, that some games cannot
rise to the level of protected speech.142  Even if this is so, however, the
medium itself is clearly capable of carrying significant and meaningful ideas;
laws such as those in question should fail the strict scrutiny required of any
regulation restricting access to such media.  The scientific consensus
necessary to show a compelling state interest does not, and may never, exist,
and no past or planned future regulation is narrowly tailored or flexible
enough survive such scrutiny.

                                 Conclusion

     The controversy posed by the unsettled nature of minors' right to access
violent games has a clear solution as a consequence of this analysis.  Both
the Seventh and Eighth Circuits correctly identified the core difficulty:
communities and lawmakers are tempted for a variety of reasons to impose
strict regulations on violent media.  These pressures certainly exist with all
forms of violent and explicit entertainment, but the uniquely interactive
nature of the medium, combined with its novel nature and high visibility, have
proven to be especially strong with electronic gaming.  Constitutional
protections exist to protect the disenfranchised from such regulation,
however; even minors are entitled to access to the marketplace of ideas.  The
strength and vigor of the appellate decisions considered here show that the
circuit courts clearly understand the significance of these issues, and that
they fail to see any significantly persuasive argument in favor of the
ordinances with which they were presented.
     The national legislation currently under consideration, H.R. 669, adds
nothing of value to those ordinances, and fails to incorporate the beneficial
subtleties of the regulation at issue in IDSA.  The tension posed by the
threatened imposition of federal legislation on two circuits which have
already found that such regulation is Constitutionally impermissible has a
clear and unambiguous solution.  The stance the circuits have taken, affirming
(even through dicta) games as worthy of First Amendment protections and
requiring strict scrutiny of content-based restrictions, should be adopted by
the Supreme Court.  This would resolve the tension between the Seventh and
Eighth Circuits, which have acted in significant concert, and the remainder of
the circuits, many of which will soon be required to pass judgment on such
restrictions in their own bailiwicks.
     Such an adoption would also have a broader effect, resolving a more
significant controversy.  Broad recognition that games have a place under the
First Amendment umbrella with films, audio recordings, and literature would
send a clear message that games are fundamentally similar to these media, and
deserving of the same respect and consideration.  One could imagine two
significant effects to such a message.  First, those who feel strongly that
minors are in danger from violent games would be aware of the high bar placed
in their path, and work to craft legislation capable of meeting it.  The
result may be better laws; just as St. Louis introduced creative new solutions
to its ordinance in the wake of the Kendall decisions, an unambiguous
indication that games exist in the same continuum as films and books would
force would-be regulators to think creatively and work with industry rather
than against it.  The industry itself would feel the second significant effect
from clarification of the Constitutional place of games; given a high bar to
live up to, the potential of interactive entertainment to stimulate
artistically and intellectually rather than viscerally may be re-invigorated.
     Electronic games clearly inhabit the same Constitutional space as other,
more traditional media.  Having recognized this, the positions of the Seventh
and Eighth Circuits should be taken up by the other circuits, either as each
individually meets the issue or through a clear message from the Supreme
Court.  This is unlikely to happen soon, but H.R. 669, for all its flaws, may
be the venue by which such a message is eventually delivered.  However the
issue is finally resolved, the nature of video and computer games must
eventually be settled with the foresight of Judge Posner rather than the
intemperance of Judge Limbaugh.  Anything less from the nation's highest
courts would send an inappropriate message to impressionable minors; it must
be made clear that freedom of speech does not decay as speech evolves.
______________________________________________________________________________
1. Computer and video games combined formed a nearly seven billion dollar
market in 2002; 221 million computer and video games were sold, "almost two
games for every household in America."  Digital Press Room, Entertainment
Software Association, at http://www.theesa.com/presroom.html (visited
Dec. 7, 2003).  Proposed federal legislation estimates the current industry
size at ten billion dollars.  See The Protect Children from Video Game Sex
and Violence Act of 2003, H.R. 669, 108th Cong. (2003).  Video and computer
games share many similarities and are often conflated, but are distinct and
distinguished by the hardware required by the game in question.  Game software
requiring a specific, dedicated console computer or arcade machine will be
referred to here as a video game.  Computer games, by contrast, are designed
to be playable on generic home computers, and generally do not require
specialized hardware.  For convenience, both media will be collectively
referred to here as "electronic games."

2 Electronic games are rated by the Entertainment Software Ratings Board
(hereinafter ESRB), which is structurally and operationally similar to the
Classification and Rating Administration which rates films.  See Entertainment
Software Rating Board, at http://www.esrb.org/index.asp
(visited Dec. 7, 2003).  See also Reasons for Movie Ratings, The
Classification and Rating Administration, at http://www.cara.org
(visited Dec. 7, 2003).

3 See Indianapolis General Ordinance No. 72-2000 (Sept. 1, 2000) [hereinafter
"Indianapolis Ordinance"].  See also St. Louis County Ordinance No. 20,193
(Oct. 26, 2000) [hereinafter "St. Louis Ordinance"].  See also House Bill No.
1009, 58th Leg., Reg. Sess. (Wash. 2003).

4 See Indianapolis Ordinance, supra note 3 (regulating arcade games in a
public "amusement location," but not the sale or rental of games to be played
in the home); c.f. St. Louis Ordinance, supra note 3 (regulating both public
games and the sale or rental of home games).

5 See American Amusement Mach. Ass'n v. Kendrick, 115 F. Supp. 2d 943 (S.D.
Ill. 2000) (hereinafter Kendrick I), rev'd, 244 F.3d 572 (7th Cir. 2001)
(addressing Indianapolis Ordinance, supra note 3).  See also Interactive
Digital Software Ass'n v. St. Louis County, 200 F. Supp. 2d 1126 (E.D. Mo.
2002) (hereinafter IDSA I), rev'd, 329 F.3d 954 (8th Cir. 2003) (addressing
St. Louis Ordinance, supra note 3).

6 See Video Software Dealers Ass'n v. Maleng, No. C03-1245L (W.D. Wash.
July 10, 2003) (granting preliminary injunction against House Bill No. 1009,
58th Leg., Reg. Sess. (Wash. 2003)).

7 H.R. 669, supra note 1.  The Act's expansively defines "video game" as any
"any copy of an electronic game that may be played using a portable electronic
device or with a hand-held gaming device using a television or computer."  Id.
This curious definition could be read as excluding games designed to be played
with a keyboard, mouse, or other commodity home computer peripherals; this
oversight is arguable and almost certainly unintentional.

8 See What's New, The Lion & Lamb Project, at
http://www.lionlamb.org/whatsnew.html (visited Dec. 7, 2003).

9 See Barbara F. Meltz, Legislation Would Target Violence in Video Games, The
Boston Globe, May 22, 2003, at H1 [hereinafter Violence in Video Games].

10 Adam Thierer, Regulating Video Games:  Parents or Uncle Sam?, Cato
Institute, at http://www.cato.org/dailys/07-14-03.html (July 14, 2003).

11 See Industry Sales and Economic Data, Entertainment Software Association,
at http://www.theesa.com/industrysales.html (visited Dec. 7, 2003).

12 Economic Impacts of the Demand for Playing Interactive Entertainment
Software, Entertainment Software Association, 7, at
http://www.theesa.com/releases/EIS2001.pdf (visited Dec. 7, 2003).

13 Industry Sales and Economic Data, supra note 11.

14 Estimations of the size and penetration of the electronic gaming market
vary widely.  See H.R. 669, supra note 1 (placing the size of the industry at
ten billion dollars); compare Industry Sales and Economic Data, supra note 11
(citing sales of nearly seven billion dollars).

15 See Digital Press Room, supra note 1.

16 Id.

17 Id.  See also ESRB Game Ratings, Entertainment Software Rating Board, at
http://www.esrb.org/esrbratings_guide.asp (visited Dec. 7, 2003).

18 See generally Interactive Digital Software Association, Essential Facts
About the Computer and Video Game Industry:  2003 Sales, Demographics, and
Usage DATA (2003) [hereinafter Essential Facts] (on file with author).

19 See generally Lan Tran, Difference Between Gaming Consoles (PS/PS2,
GameCube, Xbox, Dreamcast) and PC, OpenLoop, at
http://www.openloop.com/education/classes/sjsu_engr/engr_com
pOrg/spring2002/studentProjects/Lan_Tran/ComputervsConsoles.htm
(May 13, 2002).

20 There are a wide variety of costs attached to publishing a title beyond a
single console market.  20-30% of a publisher's wholesale revenue goes to pay
licensing fees to the console manufacturer.  Phil Steinmeyer, Inside the
Sausage Factory:  Exploding the Myths, CG Online, at
http://www.cgonline.com/features/010107-c1-f1.html (January 7, 2001).  On top
of these fees, there are high advertising and shelf-space costs inherent in
attempting to market a game in retail channels.  These factors are mitigated
for large publishers by the correspondingly high licensing costs of existing
content, such as movie tie-ins, and costs to develop assets that can be easily
transferred between console versions, such as art and music.  With larger
advertising budgets and more market power, larger actors are encouraged to
work to push their titles across console borders.  "As a result, you really
need those big multi-million dollar winners to cover your costs."  Interview
by David J. Edery with Kathy Vrabek, President, Activision Publishing
(November 11, 2003) (on file with author).

21 Nearly half of computer gamers are over the age of 35, and nearly half are
female.  Video game players are younger, thirty-eight percent being below the
age of 18, and only twenty-nine percent are female.  See Essential Facts,
supra note 18, at 3.  The seemingly large proportion of female computer gamers
is the subject of contention.  "The market is still overwhelmingly dominated
by males, so even though the growth rate of the female market looks big, women
continue to represent a very small percentage of gamers overall."  Interview
with Kathy Vrabek, supra note 20.

22 See Essential Facts, supra note 18, at 5.

23 Id.  Only two of the top twenty best-selling computer games were rated "M".
One was Grand Theft Auto 3, which was in fifteenth place, as compared to its
second place showing in the video game market.

24 See, e.g., H.R. 669, supra note 1.  The definitions applied by the bill
could be read to exclude many computer games, although this omission is almost
certainly unintentional given perambulatory language referring to "video and
computer games".  See note 7.

25 Press Release, Leland Yee, Assemblymember Yee Introduces Legislation
Restricting the Sale of Violent Video Games to Children (November 25, 2003)
(on file with author).

26 Ed Fletcher, Bills to Target Violent Video Games, Sacramento Bee,
November 29, 2003.

27 See Essential Facts, supra note 18, at 5.  See also Steven Kent, Game
Glorifies a Life of Crime, USA Today, December 20, 2001, at D3 (noting that
players `run prostitutes, deliver drugs, make gangland hits and generally
flout the law.")

28 See generally Bonnie B. Phillips, Virtual Violence or Virtual
Apprenticeship:  Justification for the Recognition of a Violent Video Game
Exception to the Scope of First Amendment Rights of Minors, 36 Ind. L. Rev.
1385 (2003) [hereinafter Virtual Violence].  "[A]s results emerge from
research on the effect of violent video games, a compelling argument can be
made that video games are training their players to kill, like the military
trains soldiers for battle."  Id. at 1396.

29 Adam Thierer, Regulating Video Games:  Parents or Uncle Sam?, Cato
Institute, supra note 10.

30 Virtual Violence, supra note 28, at 1394-1395, quoting Craig A. Anderson &
Karen E. Dill, Video Games and Aggressive Thoughts, Feelings, and Behavior in
the Laboratory and Life, 78 J. PERSONALITY & SOC. PSYCH. 772, 772.

31 Grossman defines "killology" as "The scholarly study of the destructive
act, just as sexology is the scholarly study of the procreative act."
Killology Research Group, at http://www.killology.com (visited Dec. 7, 2003).
See generally David Grossman, On Killing:  The Psychological Cost of Learning
to Kill in War and Society  (Little, Brown and Co. 1995).  See also David
Grossman, On Killing:  The Psychological Cost of Learning to Kill in War and
Society (Little, Brown and Co. 1995).

32 Virtual Violence, supra note 28, at 1401-1402, quoting David Grossman &
Mary Cagney, Trained to Kill, Christianity Today, Aug. 10, 1998, at 31
(original source unavailable).

33 See generally Press Appearances, Killology Research Group, at
http://www.killology.com/press.htm (visited Dec. 7, 2003).

34 "Violent video games hardwire young people for shooting at humans. The
entertainment industry conditions the young in exactly the same way the
military does."  Newsroom, The Lion & Lamb Project, at
http://www.lionlamb.org/newsroom_research_stats.html (visited Dec. 7, 2003)
quoting On Killing, supra note 31.

35 See Reports:  1998 Video and Computer Game Report Card:  Video Game
Violence:  What Does the Research Say?, National Institute on Media and the
Family, at http://www.mediafamily.org/research/report_vgrc_1998-2.shtml
(visited Dec. 7, 2003) [hereinafter 1998 Report Card].  For the most recent
Report Card, see 7th Annual Video and Computer Game Report Card -- Full
Report, December 19, 2002, National Institute on Media and the Family, at
http://www.mediafamily.org/research/report_vgrc_2002-2.shtml
(visited Dec. 7, 2003) [hereinafter 2002 Report Card].

36 See 1998 Report Card, supra note 35.

37 6th Annual Video and Computer Game Report Card -- Full Report, December 13,
2001, National Institute on Media and the Family, at
http://www.mediafamily.org/research/report_vgrc_2001-2.shtml
(visited Dec. 7, 2003) [hereinafter 2001 Report Card], citing Griffiths, M.D.
& Hunt, N., Dependence on Computer Games by Adolescents, 82 Psychol. Rep.
475-480 (1998).

38 7th Annual Video and Computer Game Report Card -- Full Report, December 19,
2002, National Institute on Media and the Family, at
http://www.mediafamily.org/research/report_vgrc_2002-2.shtml
(visited Dec. 7, 2003), citing Griffiths, M.D. & Hunt, N., Dependence on
Computer Games by Adolescents, 82 Psychol. Rep. 475-480 (1998).

39 Id, citing Stanley A. Miller, Death of a Game Addict, Milwaukee Journal
Sentinel, March 31, 2002.

40 For the industry response to unfavorable public perceptions, see text
accompanying note 17.

41 Dr. Henry Jenkins, Coming Up Next:  Ambushed on "Donahue"!, Salon.com, at
http://www.salon.com/tech/feature/2002/08/20/jenkins_on_donahue/index.html
(Aug. 20, 2002).

42 Id.

43 Id.

44 Interview with Dr. Henry Jenkins, Director, Comparative Media Studies
Program, Massachusetts Institute of Technology, at
http://www.penny-arcade.com/lodjenkins.php3 (visited Dec. 7, 2003)
(emphasis original).

45 Mike Krahulik and Jerry Holkins, How Many Points Is That?,
Penny Arcade, at
http://www.penny-arcade.com/view.php3?date=2000-03-27&res=l (March 27, 2000).

46 See Kendrick I, 115 F. Supp. 2d 943.  See further American Amusement Mach
Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. denied, 534 U.S. 994
(2001) [hereinafter Kendrick II].  See also IDSA I, 200 F. Supp. 2d 1126.  See
further Interactive Digital Software Ass'n v. St. Louis, 329 F.3d 954, (8th
Cir. 2003) [hereinafter IDSA II].  47 Kendrick I, 115 F. Supp. 2d at 945,
quoting Indianapolis Ordinance, supra note 3.

48 Plaintiffs did not challenge the ordinance's restrictions on sexually
explicit material.  Id. at 946.

49 See Kendrick II, 244 F.3d at 573.

50 In addition to its own analysis, the opinion includes the ordnance itself,
along with its perambulatory material, as an appendix.  See Kendrick I, 115 F.
Supp. 2d at 981.

51 The ordnance was characterized as a regulation of "the conduct of persons
who own or operate places of business which contain amusement machines and/or
video games, in such a manner that restricts and prohibits access to amusement
machines and/or video games which are deemed harmful to minors, and to
prohibit such amusement machines and/or video games on public property."
Kendrick I, 115 F. Supp. 2d at 981.

52 Responding plaintiff's challenges to the city's use of studies finding
harmful effects accruing in players of electronic games in the home to
justify the applicability of the ordnance to arcade games, the court ruled
that the essential issues were the same.  "Although home and arcade platforms
for video games are different, that does not mean that studies of one are
irrelevant to the other."  Kendrick I, 115 F. Supp. 2d at 964.

53 See Kendrick I, 115 F. Supp. 2d at 947.

54 See Kendrick I, 115 F. Supp. 2d at 946.

55 Id, citing Ginsberg v. State of N.Y., 390 U.S. 629, 88 S.
Ct. 1274 (1968).

56 Id. at 950, citing Marshfield Family Skateland, Inc. v. Town of Marshfield,
450 N.E.2d 605, 609-610 (Mass. 1983).

57 Caswell v. Licensing Comm'n, 444 N.E.2d 922, 927 (Mass. 1983), cited by
Kendrick I, 115 F. Supp. 2d at 951.  Marshfield, which followed Caswell in the
same year, notes that the Court's Caswell holding was factually limited, and
explicitly did not foreclose on technological and stylistic advances elevating
games to speech status.  See Kendrick I, 115 F. Supp. 2d at 951, citing
Marshfield, 450 N.E.2d at 226-27.

58 See generally City of Warren v. Walker, 354 N.W.2d 312 (Mich. 1984).  See
also America's Best Family Showplace Corp. v. City of New York, 536 F.Supp.
170 (E.D.N.Y.1982).

59 See Kendrick I, 115 F. Supp. 2d at 950.

60 Kendrick I notes two Seventh Circuit cases that tangentially covered First
Amendment rights in the context of electronic entertainment, but neither
squarely addressed the existence of protectable speech in such media.  See
Kendrick I, 115 F. Supp. 2d at 951, citing Rothner v. City of Chicago, 929
F.2d 297 (7th Cir.1991) and Miller v. Civil City of South Bend, 904 F.2d 1081
(7th Cir.1990) (hereinafter Miller).

61 See Miller, 929 F.2d at 1098-1099, cited by See Kendrick I, 115 F. Supp. 2d
at 951.

62 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), quoted
by Kendrick I, 115 F. Supp. 2d at 952.

63 Kendrick I, 115 F. Supp. 2d at 952.  The tactical failure to demonstrate a
game subjected to the challenged regulation did not prejudice the court's
reasoning; a similar failure proved critical in IDSA I.  See text accompanying
note 88.

64 Id.

65 See generally Kendrick I, 115 F. Supp. 2d at 952-954.

66 Id. at 954.

67 Kendrick I, 115 F. Supp. 2d at 962.

68 Id. at 963.

69 Id. at 965.

70 Id. at 981.

71 See Kendrick II, 244 F.3d at 574, citing Winters v. New York, 333 U.S. 507,
518-20,  and  United States v. Thoma, 726 F.2d 1191, 1200 (7th Cir.1984).

72 See id. at 579.

73 Kendrick II, 244 F.3d at 577.

74 "But the game is feminist in depicting a woman as fully capable of holding
her own in violent combat with heavily armed men.   It thus has a message,
even an `ideology,' just as books and movies do."  Kendrick II, 244 F.3d at
578.

75 See id. at 579-80.

76 See IDSA I, 200 F. Supp. 2d at 1130.

77 IDSA II, 329 F.3d at 956.

78 Media coverage of IDSA I was relatively prolific, and commonly referenced
both the Seventh Circuit's holding and the fact that the district judge, Judge
Stephen N. Limbaugh, was a relative of talk-show host Rush Limbaugh.  See
generally Mark Jurkowitz, Appeals Court Holds Key in Battle Over Regulation of
Violent Video Games, The Boston Globe, October 2, 2002, at D1.  See also
Wagner James Au, Playing Games With Free Speech, Salon.com, at
http://www.salon.com/tech/feature/2002/05/06/games_as_speech/ (May 6, 2002).
See further Chris Morris, No Free Speech for Games, CNN Money, at
http://money.cnn.com/2002/04/30/commentary/game_over/column_gaming/
(April 30, 2002).

79 See IDSA II, 329 F.3d at 954.

80 See IDSA I, 200 F. Supp. 2d at 1141.

81 See generally "Atticus XI - The Lawyer of Doom" (pseudonymous), The
Intersection of Gaming and Law, Penny Arcade, at
http://www.penny-arcade.com/lod3.php3 (visited Dec. 7, 2003).

82 IDSA I, 200 F. Supp. 2d at 1132 (citations omitted).

83 Id. at 1133, quoting America's Best Family Showplace Corp. v. City of N.Y.,
Dep't of Buildings, 536 F.Supp. 170, 173-174 (E.D.N.Y.1982).

84 The court drew support from both Caswell and Rothner, but did not follow
Kendrick I in examining the impact of time on the strength of these cases.
See text accompanying note 57.

85 IDSA I, 200 F. Supp. 2d at 1134.

86 Id.

87 Id.

88 Id. at 1135.  See also text accompanying note 82.

89 Id., citing Spence v. State of Washington, 418 U.S. 405, 410 (1974) for the
proposition that "the context in which a symbol is used for purposes of
expression is important, for the context may give meaning to the symbol."

90 IDSA I, 200 F. Supp. 2d at 1131.

91 See generally Playing Games With Free Speech and No Free Speech for Games,
supra note 78.  See also Interview with Dr. Henry Jenkins, Comparative Media
Studies Program Director, Massachusetts Institute of Technology, in
Gamecritics.com (January 22, 2003), at
http://www.gamecritics.com/feature/interview/jenkins/page01.php (claiming that
Limbaugh in fact failed to capitalize the game "Doom" correctly, and therefore
correctly identified only one game of the four he watched.)

92 See Interview with Henry Jenkins, supra note 91.

93 Id.

94 See IDSA I, 200 F. Supp. 2d at 1133.  See also text accompanying note 58.

95 Id. at 1135.

96 See Interview with Dr. Henry Jenkins, supra note 91 (characterizing the
ruling as "expansive").  See also The Intersection of Gaming and Law, supra
note 81.

97 See IDSA I, 200 F. Supp. 2d at 1136-1138.  Testimony presented by the
county at trial notably referenced the work of Lt. Col. Grossman.  Id. at
1137.

98 Id. at 1141.

99 See IDSA II, 329 F.3d 954.

100 Id. at 957, quoting Kendrick II, 244 F.3d at 577-78.

101 See id.

102 Id, quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994).

103 Id. at 959.

104 Id. at 960.

105 See text accompanying note 7.

106 See generally H.R. 669, supra note 1.

107 See generally R.A.V. v. St. Paul, Minn., 505 U.S. 377, 382-83 (1992),
cited by Kendrick II, 244 F.3d at 574 and IDSA II, 329 F.3d at 958.

108 See generally Kendrick II, 244 F.3d at 576, citing Erznoznik v. City of
Jacksonville, 422 U.S. 205, 212-14 (1975) and Tinker v. Des Moines Independent
School District, 393 U.S. 503, 511-14 (1969).

109 IDSA II, 329 F.3d at 959.  See also text accompanying note 103.

110 See generally Books and Audio/Video, Killology Research Group,
at http://www.killology.com (visited Dec. 7, 2003).

111 See Coming Up Next!, supra note 41.

112 See IDSA I, 200 F. Supp. 2d at 1138.

113 "The ratings and content descriptors of video and computer games issued by
the entertainment industry reflect the notion that certain video and computer
games are suitable only for adults due to graphic depictions of sex or
violence."  HR 669, supra note 1.

114 Id.

115 IDSA II, 329 F.3d at 959, quoting United States v. Playboy Entm't Group,
Inc., 529 U.S. 803, 822 (2000).

116 H.R. 669 Sec. 2 (3), (4) & (7).

117 See generally R.A.V., supra note 107.

118 H.R. 669  2732, supra note 1.

119 The language of  2732 does not appear to include games played in situ in
an arcade, which were covered by the ordinances in both Kendall and IDSA.
Otherwise, the simplicity of the language incorporates all the effects of
those regulations and applies them nationally.  See H.R. 669.  As with both
Kendrick and IDSA, the language barring the sale or rental of depictions of
nudity and sexual content are unlikely to be challenged; sexual obscenity
guidelines are clearer and less troublesome to the industry than relatively
vague, novel, and unfounded restrictions on violent material.

120 H.R. 669  2371 (1) & (2)

121 See generally Interview with Dr. Henry Jenkins, supra note 44.

122 Kendrick II, 244 F.3d at 576-77.

123 H.R. 669, supra note 1.

124 Kendrick II, 244 F.3d at 577.

125 Interview with Dr. Henry Jenkins, supra note 44.

126 See St. Louis Ordinance, supra note 3, quoted by IDSA I, 200 F. Supp. 2d
1126.

127 IDSA I, 200 F. Supp. 2d at 1130, quoting St. Louis Ordinance, supra note
3.

128 Id.

129 Id.  The relevant ratings correspond to "Mature," "Adults Only," "Teen,"
"Early Childhood" and "Everyone."  See generally ESRB Game Ratings, supra note
17.

130 See ESRB Game Ratings, id.

131 IDSA I, 200 F. Supp. 2d at 1130, quoting St. Louis Ordinance, supra note
3.  See also text accompanying note 127.

132 Id.  See also text accompanying note 119.

133 Id.  See also H.R. 669, supra note 1 (containing virtually identical
language).

134 "The violence in media surrounding children at every turn translates into
learned behaviors, similar to the training tactics used in Nazi Germany and
Imperial Japan to desensitize soldiers to killing. And children are becoming
expert marksmen as they play their `children's' video games, Grossman said.
`Today, kids are taught to kill every living thing in front of them with the
greatest possible efficiency,'' he said. `And kids are on murder simulators
every night, shooting with supernatural accuracy.'"  Barbara Blake,
"Killology" Expert Speaks in Asheville, Killology Research Group, at
http://www.killology.com/ashevillecitizen_mar01.htm (March 29, 2001).

135 See IDSA I, 200 F. Supp. 2d at 1135.

136 Interview with Sam Lake, Lead Writer, Rockstar Games, in ShackNews at
http://www.shacknews.com/extras/interviews/093003_maxpayne2_1.x
(Sept. 30, 2003).

137 Id.

138 Playing Games With Free Speech, supra note 78.

139 Kendrick II, 244 F.3d at 577.

140 Id. at 577-78.

141 Id. at 578.

142 See generally Kendrick I, 115 F. Supp. 2d 943.

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