If DC tried to ban the sale of M-rated and AO-rated video games to minors based on the ESRB rating system, would that violate the First Amendment?

Plain-English summary

In February 2005, twelve of thirteen DC Councilmembers introduced Bill 16-125, the "Youth Protection from Obscene Video Games Act of 2005." The bill would have prohibited DC retailers from selling or renting M-rated games to anyone under 17, or AO-rated games to anyone under 18, based on the Entertainment Software Ratings Board (ESRB) rating system. Penalties included business-license suspension or revocation and fines up to $10,000.

Mayor Williams asked the Attorney General whether the bill was constitutional. The answer was no.

The First Amendment analysis went in three steps. First, video games are speech, eligible for First Amendment protection (Time, Inc. v. Hill, 385 U.S. 374; Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954). Second, the bill restricted that speech based on content, triggering strict scrutiny: a content-based restriction must serve a compelling state interest and be narrowly tailored. Third, the bill failed both prongs.

On obscenity: the Supreme Court has long allowed states to regulate obscene material under Miller v. California, 413 U.S. 15 (1973), and to regulate material that is obscene-for-minors under Ginsberg v. New York, 390 U.S. 629 (1968). But the bill could not piggyback on that doctrine because it tied restrictions to the ESRB rating, which lumps sexual and violent content together without distinguishing the obscene-for-minors core that Miller and Ginsberg protect. A game can be M-rated for intense violence with no sexual content at all. The ESRB rating tells the buyer nothing about whether the game depicts sexual conduct in a patently offensive way that lacks serious literary, artistic, political, or scientific value (the Miller test).

On violence: courts have consistently rejected violent-content restrictions. The Eighth Circuit (Interactive Digital Software), Seventh Circuit (American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572), and a federal district court in Washington (Video Software Dealers Ass'n v. Maleng, 325 F. Supp. 2d 1180) have all struck down similar laws. Courts find the empirical link between violent video games and youth harm too speculative to clear the compelling-state-interest hurdle, and rating-system-tied restrictions too imprecise to clear narrow tailoring.

On prior restraint: the bill's licensing-based enforcement scheme was acceptable because the Basic Business Licensing law contains objective criteria for issuance and denial (Forsyth County, 505 U.S. at 131). License denial would not turn on game content or the licensing official's discretion.

The opinion suggested three alternatives. The Council could redraft the bill to track Miller and Ginsberg with specific definitions of nudity, sexual conduct, and sexual excitement. The Council could fund empirical research on harms before trying again on violence. Or the Council could pursue voluntary-compliance programs and public-education campaigns rather than penal enforcement.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Supreme Court has since decided Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011), which struck down a California law restricting violent video game sales to minors and confirmed the First Amendment line this opinion predicted. Bill 16-125 was never enacted.

Historical context

This opinion is a classic example of state-AG First Amendment review. In the mid-2000s, more than half the states proposed legislation to restrict violent video game sales to minors. None of those laws survived court challenge. Then-Attorney General Spagnoletti, an experienced civil rights and constitutional litigator, walked through the doctrine before the Council could pass a law that would predictably draw a federal injunction.

The 2011 Supreme Court decision in Brown v. EMA validated the analytical line: violence is not obscenity, depictions of violence enjoy full First Amendment protection, and rating-system restrictions cannot satisfy strict scrutiny. The DC Attorney General's 2005 opinion telegraphed that result six years before Brown.

The opinion also illustrates the AG's role as gatekeeper for legislative drafting. Mayor Williams could have signed the bill into law and let it be challenged in court. Instead the AG flagged the constitutional defect during drafting, allowing the Council to either redraft for survivability or abandon the effort.

Common questions

Q: Are video games protected speech today?
A: Yes. Brown v. Entertainment Merchants Ass'n, 564 U.S. 786 (2011) confirmed that video games receive full First Amendment protection.

Q: Can DC restrict access to sexually obscene games for minors?
A: Yes, but only with a properly drafted statute tracking Miller and Ginsberg with clear definitions of nudity, sexual conduct, and patently offensive depictions. Reliance on the ESRB rating alone is not enough.

Q: Why is violence treated differently from obscenity?
A: Obscenity has been a long-recognized First Amendment exception (Miller). Violence has not. The Supreme Court has repeatedly declined to add a "violent material harmful to minors" category to the recognized First Amendment exceptions.

Q: What about a public-education program rather than a ban?
A: That route is constitutional. The opinion specifically endorsed public-information campaigns about ESRB ratings and incentives for retailers to voluntarily restrict sales.

Q: Did Bill 16-125 ever pass?
A: No. After the AG opinion, Bill 16-125 did not advance.

Citations

Statutes
- Bill 16-125 (Youth Protection from Obscene Video Games Act of 2005)
- D.C. Official Code § 47-2851.01 et seq. (Basic Business Licensing)
- U.S. Const. Amend. I

Key Supreme Court precedents
- Miller v. California, 413 U.S. 15 (1973)
- Ginsberg v. New York, 390 U.S. 629 (1968)
- Sable Communications v. FCC, 492 U.S. 115 (1989)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
- Reno v. ACLU, 521 U.S. 844 (1997)
- Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992)

Circuit decisions striking video game laws
- Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir. 2002)
- American Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001)
- Video Software Dealers Ass'n v. Maleng, 325 F. Supp. 2d 1180 (W.D. Wash. 2004)

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Youth-Protection.pdf

Source

• Index page: https://oag.dc.gov/about-oag/our-structure-divisions/legal-counsel-division/opinions-attorney-general
• Original PDF: https://oag.dc.gov/sites/default/files/2018-02/Opinion-July-2014-Youth-Protection.pdf

License

This opinion is published by the Office of the Attorney General for the
District of Columbia. Per the DC.gov terms of use, content is licensed
under Creative Commons Attribution 3.0,
which permits commercial use, redistribution, and modification with
attribution.

Original opinion text

GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE ATTORNEY GENERAL

ATTORNEY GENERAL

May 23,2005

OPINION OF THE ATTORNEY GENERAL

SUBJECT:

Constitutionality of Bill 16-125, the "Youth Protection from Obscene
Video Games Act of2005"

Honorable Anthony A. Williams
Mayor of the District of Columbia
1350 Pennsylvania Avenue, N.W., 6th Floor
Washington, D.C. 20004
Dear Mayor Williams:

L Introduction
This opinion is in response to your request for a legal review of the "Youth Protection
from Obscene Video Games Act of 2005" (Bill 16-125) ("Video Garnes Bill" or "Bill").
The Video Games Bill was introduced on February 4, 2005, and was sponsored by eleven
members and the Chair of the Council of the District of Columbia. The Bill would
prohibit video and computer game retailers from selling, renting or furnishing certain
violent or sexually-oriented video games to District youth based upon the ratings of the
Entertainment Software Ratings Board ("ESRB"). A retailer who violated the provisions
of the Video Garnes Bill would be subject to certain fines and suspension or revocation of
its business license. Although the Council has not yet held a hearing on the measure, the
presumptive purpose of the legislation is to reduce the theoretical harmful effects such
games have on District youth and the community.
II. Summary of Conclusion

" As currently drafted, it is unlikely that the Video Games Bill could withstand a
constitutional challenge. By relying upon the ESRB rating system, the provisions of the
Bill are overbroad and unlawfully abridge the First Amendment right to exercise free
speech. While the Bill could be redrafted to restrict a minor's access to video or
computer games with sexually explicit depictions that would constitute obscene material,
it is unlikely that the prohibition on disseminating games with violent content to minors

could be satisfactorily modified to survive a constitutional challenge. More than half of
the states and a number of local jurisdictions have proposed legislation that would
similarly prevent minors from having access to video games with violent content. None
has been successfully enacted and withstood judicial review. Any such restriction on the
exercise of free speech must meet a compelling state interest and be narrowly tailored to
address the specific problem identified by the state. Because it is unlikely that the
District could demonstrate a compelling state interest in banning all depictions of
violence, and because the rating system relied upon in the Bill lacks the requisite narrow
tailoring, the Bill would not survive a court challenge. As an alternative, the Council
could constitutionally limit the Bill's reach to specifically-defined obscene material or
change its approach to encourage retailers to voluntarily restrict sales of certain games.
The Bill in its current form, however, is unsupportable.

m.. Discussion
A. The Youth Protection from Obscene Video Games Act of 1005
On February 4,2005, twelve of the thirteen members of the Council of the District of

Columbia introduced the "Youth Protection from Obscene Video Games Act of2005"
(B16-125).1 The apparent goal of this legislation is to restrict the unlimited access that
District youth now have to violent and sexually explicit video and computer games. The
Video Games Bill would prohibit the sale or rental of certain video games to District
youth, based on the ratings of the individual video games by the Entertainment Software
Ratings Board ("ESRB").
The ESRB, formerly known as the Interactive Digital Software Association, is an
independent, self-regulatory body that applies and enforces ratings among members of
the video gaming industry. Publishers of video and computer games submit new games
to the ESRB where a panel of three raters determine which of seven possible ratings will
be assigned to the game. According to the ESRB website, ratings are established in the
following manner:
To get a game certified with an ESRB rating, publishers fill out a detailed
questionnaire explaining exactly what's in the game, and submit it to ESRB along
with actual videotaped footage of the game, showing the most extreme content
and an accurate representation of the context and product as a whole. Working
independently, three trained raters then view the game footage and recommend
the rating and content descriptors they believe are most appropriate. ESRB then
compares the raters' recommendations to make sure that there's consensus.
Usually, the raters agree and their recommendation becomes final. However,
when the raters recommend different ratings, additional raters may be requested to
review the game in order to reach broader consensus. 'Once consensus on a rating
and content descriptors is reached, ESRB issues an official rating certificate to the
game's publisher.

1

Only Ward 3 Councilmember Kathy Patterson did not co-sponsor the measure.

2

When the game is ready for release to the public, publishers send copies of the
final product to the ESRB. The game packaging is reviewed to make sure the
ratings are displayed,in accordance with ESRB standards. Additionally, ESRB's
in-house game experts randomly play the final games to verify that all the
information provided during the rating process was accurate and complete.

See ESRB Game Ratings, Frequently Asked Questions (Online at www.esrb.com).
The rating system used by ESRB consists of two parts: a rating symbol and content
descriptors. The rating symbol is designed to provide parents with shorthand information
about the content of particular games. Each video and computer game is assigned one of
the following seven ratings, as described by the ESRB:
EC (Early Childhood) - Titles rated EC have content that may be suitable for
ages 3 and older. Contains no material that parents would find inappropriate.
E (Everyone) - Titles rated E have content that may be suitable for ages 6 and
older. Titles in this category may contain minimal cartoon, fantasy or mild
violence and/or infrequent use of mild language.
E 10+ (Everyone 10+) - Titles rated E 10+ have content that may be suitable for
ages 10 and older. Titles in this category may contain more cartoon, fantasy or
mild violence, mild language and/or minimal suggestive themes.
T (Teen) - Titles rated T have content that may be suitable for ages 13 and older.
Titles in this category may contain violence, suggestive themes, crude humor,
minimal blood and/or infrequent use of strong language.
M (Mature) - Titles rated M have content that may be suitable for persons aged
17 and older. Titles in this category may contain intense violence, blood and gore,
sexual content, and/or strong language.
AO (Adults Only) - Titles rated AO have content that should only be played by
persons 18 years and older. Titles in this category may include prolonged scenes
of intense violence and/or graphic sexual content and nudity.
RP (Rating Pending) - Titles rated RP have been submitted to the ESRB and are
awaiting final rating. (This symbol appears only in advertising prior to a game's
release.)
Along with the rating symbo~ ESRB assigns each game one or more content descriptors
to give potential purchasers more information about the content of the games. These
content descriptors, along with the rating symbo~ are prominently displayed on the outer
packaging of the video or computer game. There are more than 25 content descriptors
used by the ESRB ratings panels, some examples of which are:

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•
•
•
•
•
•
•
•
•
•
•
•
•

Blood and ,Gore - Depictions of blood or the mutilation of body parts.
Crude Humor - Depictions or dialogue involving wlgar antics, including
"bathroom" humor.
Intense Violence - Graphic and realistic-looking depictions of physical conflict.
May involve extreme and/or realistic blood, gore, weapons, and depictions of
human injury and death.
Mature Humor - Depictions or dialogue involving "adult" humor, including
sexual references.
Mild Violence - Mild scenes depicting characters in unsafe and/or violent
situations.
Nudity - Graphic or prolonged depictions of nudity.
Partial Nudity - Briefand/or mild depictions of nudity.
Sexual Themes - Mild to moderate sexual references and/or depictions. May
include partial nudity.
Sexual Violence - Depictions of rape or other sexual acts.
Strong Language - Explicit and/or frequent use of profanity.
Strong Sexual Content - Graphic references to and/or depictions of sexual
behavior, possibly including nudity.
Use of Drugs - The consumption or use of illegal drugs.
Use of Alcohol - The consumption of alcoholic beverages.

ESRB, as a non-governmental, self-regulatory body, monitors compliance with the rating
system and imposes penalties against manufacturers and publishers of qualifying
computer and video games who fail to adhere to its guidelines. ESRB has no
enforcement authority, however, against individual retailers who sell, rent or furnish
these games to youth who are younger than the recommended age level. 2
The Video Games Bill seeks to create a local enforcement scheme based on the ESRB
rating system to prevent the sale or rental of games rated as "M" and "AO" to youth
under the age of 17 and 18, respectively. While the Bill does not specifically state the
Council's purpose behind the legislation, it is reasonable to assume that the Council
wishes to limit the access District youth currently have to games with mature content, i.e.,
intense violence, blood and gore, strong sexual content and nudity. Indeed, the Bill
would restrict the sale of only those games bearing a rating of "M" or "AO".
Specifically, the Video Games Bill:
•

requires that any retailer that rents, sells, or furnishes video or computer games,
with or without compensation, in the District of Columbia obtain a business
license with an "entertainment" endorsement from the Department of Consumer

2 It is unclear how and under what authority the ESRB imposes penalties on manufacturers and publishers
of qualifying computer and video games who fail to comply with its guidelines. In addition. as noted on
the ESRB website, "Although the ESRB does not have the authority to enforce the rntings at the retail
level, [ESRB works] closely with retailers and game centers to encourage them to display ratings
information and not sell or rent certain product to minors. In fact, many retailers have signed up for
ESRB's Commitment to Parents progrnm in which they pledge to use their best efforts not to rent or sell Mrated games to children under 17 without parental consent."

4

•
•
•

•

and Regulatory Affairs ("DCRA") pursuant to D.C. Official Code § 47-2851.01 et
seq. (2004 Supp.);
prohibits licensed businesses from renting, selling, or furnishing video or
computer games rated as ''M'' (Mature) to persons under the age of 17;
prohibits licensed businesses from renting selling, or furnishing video or
computer games rated as "AO" (Adults Only) to persons under the age of 18;
requires such licensed businesses to post
o a written explanation of the ESRB ratings,
o notice of the above age restrictions on the purchase or rental of games
rated as "M" or " AO", and
o the appropriate Basic Business License;
creates a penalty scheme for violating the provisions of the Bill which includes
o suspension or revocation of the retailer's business license,
o a fine of not less than $1,000 and not more than $2,000 for the first
violation,
o a fine of not less than $4,000 and not more than $10,000 for each
subsequent violation, and
o a civil penahy of up to $1,000 for each unlicensed individual who violates
the sales restriction.

As discussed more fully below, the Video Games Bill, as a content-based restriction on
otherwise lawful speech, is unlikely to survive a constitutional challenge. While there are
some modifications that could be made to the Bill to prohibit a minor's access to video
and computer games that are sexually obscene, as that term has been defined in the case
law, it is highly unlikely that any version of the Bill that restricts access to games with
violent conduct will meet constitutional standards.

B. The Constitutional Standard
Unabridged free speech is a fundamental and cherished American right. Its importance is
underscored by its placement as the First Amendment to the Constitution. ("Congress
shall make no law... abridging the freedom of speech ...." U.S. Const. Amdt. 1.) When
determining whether government regulation impermissibly intrudes on the freedom of
speech, a court must first consider whether the subject matter sought to be regulated
concerns protected speech. As the courts have noted, not all communication is speech,
nor is all speech protected. See RA. V. v. City olSt Paul, 505 U.S. 377, 382 (1992)
(recognizing limited examples of unprotected speech). Once the determination is made
that legislation seeks to regulate protected speech, the next step is to consider whether the
restriction is content-based or content-neutral.
Content-based regulations, as the name would imply, restrict speech because of its
content. See Eclipse Enterprises, Inc. v. Gulotta, 134 F.3d 63,66 (2nd Cir. 1997).
Content-based restrictions on speech are presumptively invalid unless the government
can demonstrate that (1) the law is necessary to serve a compelling state interest and (2) it
is narrowly drawn to achieve that end. RA. V, supra, 505 U.S. at 382; Sable
Communications v. FCC, 492 U.S. 115, 126 (1989). Content-neutral regulations, by

5

contrast, are "promulgated without reference to the content of the regulated speech,"
Madsen v. Women's Health Ctr., 512 U.S. 753, 763 (1994), and are subject to a less
rigorous examination.
The Video Games Bill seeks to restrict the access of certain computer and video games to
District youth. It is well established that games of this sort are considered speech, within
the meaning of the First Amendment. Communications designed to entertain the listener,
rather than to impart information or debate public affairs, are eligible for constitutional
protection. Time, Inc. v. Hill, 385 U.S. 374, 388 (1967). As noted by the Eighth Circuit,
"Whether we believe the advent of violent video games adds anything of value to society
is irrelevant; guided by the first amendment, we are obliged to recognize that they are as
much entitled to the protection of free speech as the best of literature." Interactive
Digital Software ASSOCiation, et al. v. St. Louis Calmly, 329 F.3d 954, 957-58 (8th Cir.
2002) (internal quotations removed); Winters v. New York, 333 U.S. 507, 510 (1948).
Not all speech is protected, however. The Supreme Court has recognized that there are
several categories of speech that do not deserve First Amendment protection: defamation
with actual malice, fighting words, direct incitement of lawless action, and obscenity.
See RA. v.. supra, 505 U.S. at 382-83. Therefore we must examine the bill in question to
determine whether it seeks to regulate one of these limited categories of 'unprotected'
speech.
As discussed above, the restrictions set forth in the Video Games Bill are directly tied to
the ESRB rating system. Only games that are rated ''M'' (Mature) or "AO" (Adults Only)
are subject to the restrictions set forth in the Bill. The ratings of these games are
determined by the level of sexually explicit and violent conduct portrayed during the
playing of the games. Although the title of the Bill is "Youth Protection from Obscene
Video Games Act of 2005", the ESRB categories link sex ~d violence. Yet for purposes
of constitutional analysis, violence and obscenity are two distinct categories. See
American Amusement Machine ASSOCiation, et al v. Kendrick, 244 F.3d 572, 574 (th Cir.
2001), cert. denied, 534 U.S. 994 (2001). Each is considered in turn below.

C. Obscenity
It has long been recognized that obscene speech is not protected by the First Amendment,
Miller v. California, 413 U.S. 15,24 (1973); Kois v. Wisconsin, 408 U.S. 229 (1972),
although it was not clear for many years what constituted obscenity. After considering
numerous individual cases and applying various standards, the Supreme Court of the
United States established a "basic guideline" to be used by a trier of fact when
determining whether a particular work is obscene:
(a) whether the average person applying contemporary community standards would
find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct
specifically defined by the applicable state law; and

6

(c) whether the work, taken as a whole, lacks serious literary, artistic, political or
scientific value.

Miller, supra, 413 U.S. at 24 (internal quotations and citations removed). Only those
works that depict or describe sexual conduct fall into the category of materials that can be
held obscene. [d. "If a state law that regulates obscene material is thus limited, as
written or construed, ...First Amendment values... are adequately protected by the ultimate
power of the appellate courts to conduct an independent review of constitutional claims
when necessary." [d. at 25.
Because obscene speech is unprotected, state legislatures are permitted to regulate access
to obscene materials as long as there is a rational basis to do so. In Ginsberg v. New .
York, 390 U.S. 629, 638 (1968), the Supreme Court held that a state could adjust its
definition of obscenity to meet the lawful goal of protecting its youth and permitted the
regulation of speech that was not obscene for adults, but was found to be obscene when
applied to minors. Although Ginsberg was decided before Miller, which established the
current definition of obscenity, Ginsberg remains good law. Thus, states continue to
have the lawful ability to "shield minors from the influence [of obscene material] that is
not obscene by adult standards." Sable Communications, supra, 492 U.S. at 126; see also
New Yorkv. Ferber, 458 U.S. 747, 757 (1982).3
Even though the Video Games Bill purports to regulate 'obscene' video games that are
available for sale to children, it is doubtful that the Bill, as currently diafted, would meet
the tests set forth in Miller and Ginsberg. We start the analysis of the Bill with the
understanding, as discussed above, that if any particular game is obscene - whether by
traditional Miller aduh standards or the relaxed Ginsberg youth standards - the Council
may regulate or restrict its sale, as long as there is a rational basis to do so. The issue
with the Video Games Bill, however, is that it does not provide a meaningful way to
determine whether any particular video game is obscene.
First, the Video Games Bill bases its sales restriction on the ESRB rating system which
does not clearly distinguish between those games that are sexually graphic and those that
are extremely violent. A game rated as M (Mature) or AO (Adults Only) by the ESRB
could very well contain no sexual content whatsoever. Because the rating system
combines sexual and violent depictions, the ESRB rating is largely insufficient as a
mechanism to identify those games which have explicit sexual conduct or would
otherwise qualify as obscene for minors.

In Ginsberg, for example, the Supreme Court upheld a New York Penal Law prohibiting the knowing
sale to minors of pictures: (a) that depicted specific kinds of female nudity (i.e., the buttocks with less than
a full opaque covering or the female breast with less than a fully opaque covering of any portion below the
top of the nipple); and (b) that were harmful to minors in the sense meant by Supreme Court statements
concerning the elements of obscenity (i.e., the pictures predominantly appealed to the prmient interest of
minors, patently offended prevailing standards in the adult community as a whole with respect to what is
suitable material for minors, and had utterly no redeeming social importance for minors). 490 U.S. at 63233. The Ginsberg Court noted that, while such pictures could rationally be considered as obscene for
minors, they were not obscene for adults. Id at 634.

3

7

Second, even though the ESRB rating system includes content descriptors which give
prospective purchasers some information about the content of the video or computer
game, the Video Games Bill does not consider those descriptors in imposing sales
restrictions. Thus, the Bill does not distinguish between games that have been rated M or
AO because of: for example, Sexual Violence, Strong Language, Drug Use, or Alcohol
Use.
Third, by using the ESRB rating system, the Council has failed to specifically derme
what material concerning sex - whether sexually explicit conduct, nudity, etc. constitutes obscenity for purposes of District youth. As noted above, one of the factors in
the Miller test as articulated by the Supreme Court is whether the "work depicts or
describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law." Miller, supra, 413 U.S. at 24. Ginsberg, supra, 390 U.S. at 63233, recognizes that work can also be obscene for minors if it depicts human nudity in a
patently offensive way. Given the lack of detail contained in the ESRB rating system as
to the specific sexual conduct or the nature of the nudity portrayed in a particular video
game, it is doubtful that the rating system alone would satisfy the requirement that the
sexual conduct or other offensive sexual material be 'specifically described,' in the
applicable state law.
The Council may choose to redraft the Video Games Bill to more properly address the
sale of 'obscene' video games to minors by further defining the term obscene in
conformance with the dictates ofMiller and Ginsberg. With clearer definitions, the
Council could, indeed, regulate the sale of obscene games to minors. Before offering
suggestions on how to redraft the Bill to pass constitutional muster, however. we consider
the Bill's more problematic attempt to regulate the sale of games that portray violent
conduct.
D. Depictions of Violence

The Video Games Bill, like legislation proposed in a number of other states and local
jurisdictions, seeks to restrict the sale of video games that are not simply sexually explicit
(and thus obscene as to minors). but also seeks to restrict those games that contain
excessive violence. Obscenity and violence are two separate classes of potentially
objectionable material, and are treated differently for purposes of constitutional analysis. 4
" Judge Posner of the Seventh Circuit, considering an Indianapolis ordinance that similarly sought to
restrict a minor's access to sexually explicit and graphically violent video games, noted the difference
between the purposes in protecting youth from obscene and violent material
The main wony about obscenity, the main reason for its proscription, is not that it's harmful, ... but
that it is offensive. A work is classified as obscene not upon proof that it is likely to affect
anyone's conduct, but upon proof that it violates community norms regarding the permissible
scope of depictions of sexual or sex-related activity.... No proof that obscenity is harmful is
required either to defend an obscenity statute against being invalidated on constitutional grounds
or to uphold a prosecution for obscenity. Offensiveness is the offense.... But offensiveness is not
the basis on which Indianapolis seeks to regulate violent video games .... The basis of the
ordinance, rather, is a belief that violent video games cause temporal harm by engendering

8

Unlike obscenity, violence or, more accurately, depictions of violence are protected
speech under the First Amendment. See Interactive Digital Software Association, supra;
Video Software Dealers Association v. Maleng, 325 F. Supp.2d 1180, 1186 (W.D. Wash.
2004). Thus, as described above, a state may not regulate violent images unless there is a
compelling state interest and the regulation imposed is narrowly tailored to achieve that
end.
Assuming that the 'compelling state interest' asserted by the Council in support of the
Video Games Bill is the protection of minors from the harmful effects of violent video
games, it would need to establish a demonstrable link between the violent games and the
purported harm. Recent cases suggest that this will be difficult to establish and even
more difficult to defend.
In Interactive Digital Software Association, supra, the Eighth Circuit considered a local
statute similar to the Video Games Bill. The Court assessed whether there was a
compelling state interest justifying the restriction on First Amendment speech. While the
Court acknowledged that there were many theories about a connection between playing
violent video games and committing violent acts, there was insufficient empirical data
connecting them. As the Court noted, because content-based restrictions on speech are
presumptively invalid under the First Amendment, the government must "demonstrate
that the recited harms are real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way." 329 F.3d at 958, citing Turner
Broadcasting Sys., Inc. v. FCC, 512 U.S. 622,664 (1994) (plurality opinion). The Court
also rejected the argument that the ordinance served a compelling state interest because
society in general believes that continued exposure to violence can be harmful to
children. Id. at 959. Nor was it a compelling state interest that the statute assisted
parents in their efforts to limit access to violent video games. ("[T]he question here is
whether the County constitutionally may limit first amendment rights as a means of
aiding parental authority. We hold that .. .it cannot." Idi
Other courts have similarly held that the potential reduction of violence does not justify
infringing on a minor's access to depictions or descriptions of violence. In striking down
an Indianapolis ordinance that restricted access of minors to violent video games, the
Seventh Circuit noted:
The video games at issue in this case do not involve sex, but instead a children's
world of violent adventures. Common sense says that the City's claim of harm to
its citizens from these games is implausible, at best wildly speculative. Common
sense is sometimes another word for prejudice, and the common sense reaction to
the Indianapolis ordinance could be overcome by social scientific evidence, but
has not been. The ordinance curtails freedom of expression significantly and, on
aggressive attitudes and behavior, which might lead to violence." American Amusement Machine
supra, 244 F.3dat 574-75.
In American Amusement Machine, the Court noted that the grounds for restricting violent expression
must be "compelling" and not just "plausible." ld at 577.

5

9

this record, without any offsetting justification, "compelling" or otherwise.
American AmusementMachine, supra, 244 F.3d at 579.6
Even more narrowly tailored justifications have failed to persuade the courts. In a recent
federal court decision striking down a Washington State restriction on video games that
depict violence against law enforcement officers, the United States District Court
observed that there was little data supporting a link between these games and violence
against law enforcement officers:
The Court, along with virtually every entity that has considered this issue hopes
that more research is done to determine the long-term effects of playing violent
video games on children and adolescents. Although we do not demand of
legislatures scientifically certain criteria of legislation, given the state of the·
existing research in this area, the Court finds that the Legislature's belief that
video games cause violence, particularly violence against law enforcement
officers, is not based on reasonable inferences drawn from substantial evidence.
Video Software Dealers, supra, 325 F. Supp.2d atI188-89.
Given the consistent record of judicial skepticism, it is highly unlikely that the Council
could assemble the requisite record to demonstrate the type of compelling interest needed
to justify a content-based restriction on the sale of video games to minors. Although the
Council has yet to hold a public hearing on the Bill, the record suggests that it will be
difficult to support, and then ultimately to defend, such action. In any court challenge
there will be an analysis of whether violent video games are linked to actual harm to the
minors who' play them or to the public at large. There is little reason to believe that the
District could prevail in such a challenge. Indeed, while more than half of the states and
a number of local jurisdictions have proposed legislation similar to the Video Games Bill,
it appears that none has successfully enacted such a law. While some are pending, many
have died in committee, been vetoed, or for other reasons withdrawn from the legislative
process? Bills that have been enacted by a state or locality have not withstood court
6 The Court in American Amusement Machine, noting that children have First Amendment rights (citing
Erznoznikv. City ofJacksonville, 422 U.S. 205, 212-14 (1975» considered the significant role that violent
images play in the education and development of American children. Recognizing that some of the world's
most important works of art, literature. and history are replete with images of violence, the Court pointed
out that "[v]iolence bas 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 Perrauh are 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."

American Amusement Machine, supra, 244 F.3d at 577.
7 Eg., in Connecticut the governor vetoed a bill that prohibited persons under 18 from operating point and
shoot video games; in Maryland a bill that would prohibit sale ofM and AO rated games to 17 and 18 year
olds, respectively, was not voted out of committee; and in Florida a bill prohibiting sale or rental of aduh
video games to minors also died in committee. But see Illinois General Assembly Bill HB4023, which
restricts the sale of obscene and violent video games to minors in the state of Illinois. As of the' date of this
opinion, the bill bas passed the Illinois House and is awaiting action by the Illinois Senate. Governor
Blagojevich bas indicated that. if passed by the legislature, he would sign the measure.

10

challenge. No reported opinion could be found that upholds a governmental body's
regulation of the sale or rental of video or computer games to minors based solely on the
basis of violent content. 8
Even assuming that the District could establish a compelling interest in enacting the
Video Games Bill, there remains the constitutional hurdle of demonstrating that the
regulations imposed by the Bill are the least restrictive to satisfy the compelling interest.
"It is not enough to show that the Government's ends are compelling; the means must be
carefully tailored to achieve those ends." Sable Communications, supra, 492 U.S. at 126.
Here, too, the Bill is wlnerable.
In relying exclusively on the ESRB ratings, the Council has not further defined the
violent expressions in video games that it seeks to keep away from minors. As described
above, while the ESRB does consider violence themes and depictions in determining a
rating, it is unclear - from the ratings ofM and AO alone - what specific depictions of
violence are prohibited. For example, it is important to know whether the Council seeks
to limit a minor's access to depictions of all violent acts, or only those violent acts that
contain certain elements, (e.g., excessive blood, bodily mutilation, dismemberment, or
weapons) or whether the violence depicted must suggest a certain level of realism (i.e.,
depictions of the victims and perpetrators of the violent acts relate to humans as opposed
to animals, cartoon characters, fantastical beings, or androids). Because the ESRB
ratings do not offer details of the level or nature of violence, it is unlikely that a court
would find the class of material to be regulated by the Video Games Bill to be·
sufficiently narrow.9 See Reno v. ACLU, 521 U.S. 844 (1997) (Court struck down statute
limiting transmission of "indecent" and "patently offensive" material over the Internet as
overbroad and an abridgement of First Amendment rights.)

8 See American Amusement Machine, supra (preliminary injunction granted to prevent enforcement of a
bill that unconstitutionally restricted access of minors to video games depicting violence); Interactive
Digital Software Association, supra (enjoined St. Louis County ordinance restricting sale or rental of
graphically violent video games to minors because of infringement of First Amendment rights); Video
Software Dealers, supra (finding law unconstitutional, court permanently enjoined State of Washington
from enforcing law creating penalties for dissemination to minors of violent video games that target Jaw
enforcement characters); Davis-KiM Booksellers v. McWherter, 866 S.W.2d 520 (Tenn. 1993) (upheld the
constitutionality of a Tennessee statute prohibiting the retail display of materials considered harmful to
minors after eliding the term "excessive violence" from the statute).

In American Amusement Machine, supra, where the restriction on the sale of violent video games was
found to be unconstitutional, the Court explained that some violent games might be more likely to survive a
challenge than others.

9

We have emphasized the "literaty" character of the games in the record and the unrealistic
appearance of their "graphic" violence. If the games used actors and simulated real death and
mutilation convincingly, or if the games lacked any story line and were merely animated shooting
galleries (as several of the games in the record appear to be), a more narrowly drawn ordinance
might survive a constitutional challenge.
244 F.3d at 579-80.

11

In sum, it appears unlikely that the Video Games Bill, to the extent it seeks to restrict
access of minors to M and AO rated video and computer games because of their violent
content, would survive constitutional scrutiny. It is doubtful that the District could offer
a compelling state interest to overcome the strong protections of the First Amendment.
Moreover, even if a compelling interest was demonstrated, reliance on the ESRB rating
system to define the class of restricted material would not satisfy a court that the statute
was narrowly drawn to address the perceived problem.
E. Prior Restraint'

The mechanism by which the Video Games Bill seeks to enforce its sales restrictions is
the imposition of a licensing scheme for video and computer game retailers located in the
District of Columbia. These retailers then would be subject to fines and license
suspension and revocation for violations of the sales restrictions. Similar statutes have
been challenged in other states on the ground that such a licensing scheme constitutes
prior restraint of the exercise offree speech. On this score, the Video Games Bill is on
stronger footing.
Despite the heavy presumption against measures that might restrain or inhibit the exercise
of free speech, the courts have recognized that a state may impose valid time, place, and
manner regulations, to regulate competing uses of public forums. Forsyth County v. The
Nationa/istMovement, 505 U.S. 123, 130 (1992). Any permit scheme controlling or
impacting the exercise of protected speech must not be based on the content of the
message, must be narrowly tailored to serve a significant governmental interest, and must
leave open ample alternatives for communication. Id.; See United States v. Grace, 461
U.S. 171, 177 (1983). The reasoning, as noted by the Supreme Court in Forsyth County,
is as follows:
If the permit scheme involves appraisal of facts, the exercise ofjudgment, and the

formation of an opinion, by the licensing authority, the danger of censorship and
of abridgment of our precious First Amendment freedoms is too great to be
permitted. Forsyth County, supra, 505 U.S. at 131 (internal quotes and citations
omitted).
To minimize that risk, the licensing scheme must contain narrow, objective and definite
standards to guide the licensing authority. to Id.

10 In Forsyth County, the Supreme Court affirmed a lower court's decision holding unconstitutional a

Georgia ordinance that mandated permits for public protests and allowed the licensing authority to assess
permit fees and the costs of police protection as needed to maintain public order. In:finding an
impermissIble prior restraint of free speech the Court noted:
The decision how much to charge for police protection or administrative time - or even whether to
charge at all- is left to the whim of the administrator. There are no articulated standards either in
the ordinance or in the county's established practice. The administrator is not required to rely on
any objective factors. He need not provide any explanation for his decision, and that decision is
unreviewable. Nothing in the law or its application prevents the official from encoumging some

12

The Video Garnes Bill does not appear to constitute an unlawful prior restraint on speech.
The licensing requirement, and entertainment endorsement, contemplated by the Bill are
subject to the objective criteria set forth in D.C. Official Code § 47-2851.01 et seq. (2004
Supp.). The licensing official must adhere to these criteria for the issuance .and denial of
a license. A license may not be denied to the retailer of video or computer games based
on the content of the games or the unfettered discretion of the licensing official. This
scheme seems to meet the limitations as set forth in Forsyth County, and thus would not
constitute an unlawful prior restraint.

IV. Alternatives
. As discussed above, it is unlikely that the Video Garnes Bill, as currently drafted, could
withstand a constitutional challenge. Instead, the District might consider one or more of
the following alternative courses of action in its attempt to limit the access of minors to
obscene and/or violent video games.
•

The Council could redraft the legislation to more narrowly restrict material that
would be considered 'obscene' for District youth. While this approach would not
cover video games with violent themes, it could limit youth access to games with
explicit sexual themes, depictions, and nudity. To pass constitutional review, the
Bill should track the Miller and Ginsberg standards by limiting its application to
material that would be offensive to a youthful audience because taken as a whole
the material appeals to the prurient interests of minors, depicts sexual conduct or
nudity in a patently offensive way, and lacks any serious literary, artistic,
political, or scientific value for minors. Miller, supra, 413 U.S. at 24; Ginsberg,
supra, 390 U.S. at 639. The Bill should specifically identify the kinds of sexual
images and depictions that are banned by including sufficiently detailed
definitions (e.g., definitions of nudity, sexual conduct, and sexual excitement).
By including specific definitions, retailers would be on notice as to which games
containing sexually explicit material may not be sold to minors. 11

•

As described above, it is unlikely that any attempt to limit a minor's access to
video games that depict violence would survive constitutional challenge. It is
more likely that such a future bill would withstand judicial review, however, if
there were some empirical data that would support a "compelling" state interest to
keep such games away from the District's youth. The Council may choose to
require additional studies to determine what, if any, negative effects are

views and discouraging others through the arbitrary application of fees. The First Amendment
prohibits the vesting of such unbridled discretion in a government official.
Forsyth County. supra, 505 U.S. at 133.
11

See MS. News Company v. Casado, 721 F.2d 1281 (lOth Cir. 1983) (Court upheld constitutionality of a

Wichita, Kansas ordinance restricting the promotion of sexually oriented materials to minors that
specifically defined the banned material.)

13

.1

experienced by minors who play violent video games. 12 Even with such evidence,
any subsequent bill should be narrowly drawn, with detailed definitions of the
restricted violent depictions, to address the specific evidence of harm. 13
•

Short of restricting access to violent video games, the Council might establish a
public education program to inform parents ofESRB ratings, giving them more
information about the video games purchased and played by their children. 14 The
Council might also develop incentives for video game retailers to voluntarily
restrict access of minors to games rated M (Mature) and AO (Adults Only).

Sincerely,

~
~L~~

itBERTi. ~p

Attorney General
RJS/rjs

12 Congress is attempting to ascertain the same information through a legislative vehicle, H.R 1145. An
earlier congressional bill, HoUse Bill 698, which would have restricted the sale of certain videos to minors,
was not enacted.
13 See Dlinois General Assembly Bill HB4023 which attempts to restrict the sale of obscene and violent
video games to minors in the State of lllinois. The Dlinois bill tracks the language outlined by the Supreme
Court in Mi/ler and Ginsberg for restricting the dissemination of obscene material to minors, and contains a
very narrow definition of violence, limited to the realistic depiction of extreme human violence. The bill
further recites a link between violent video games and harm to minors, and lists five compelling state
interests in limiting a minor's access to such games. Interestingly, the bill does not rely on the ESRB video
game Iatings. It is currently awaiting passage by the Dlinois Senate.

14 See Oregon Resolution H.J.R 21, urging owners of video arcades to restrict children's access to violent
video games and encomaging the use of the ESRB rating system to identify violent video games.

14