MI Violent Game Bill Declared Unconstitutional by Federal Court

(Original image from: Grinning Planet)

A MI state video game bill recently signed into law by Gov. Jennifer Ganhold has been temporarily halted. The law, proposed for enactment on Dec. 1st of 2006 would, restrict sales of video games to minors. Judge George Caram Steeh in the United States District Court for the Eastern District of Michigan, issued a permanent injunction, which marks the sixth court in three years to rule restrictions of video game sales based on their content as being unconstitutional.

The state claimed that the interactive nature of video games should make them less entitled to First Amendment protection. It is likely they formed this rationale based on the fact that interactive entertainment can lead to more harm than passive entertainment, since the player (children in this case) not only watches the action, but dictates it. The judge disagreed with this conception and found that "interactive, or functional aspect(s), in video games can be said to enhance the expressive elements even more than other media by drawing the player closer to the characters and becoming more involved in the plot of the game than by simply watching a movie or television show." He went on to write that it "would be impossible to separate the functional aspects of a video game from the expressive, inasmuch as they are so closely intertwined and dependent on each other in creating the virtual experience."

Whether or not this rationale will hold up on appeal remains to seen. An appeals court may be able to overturn the judge's rationale (on this point) using the abstraction/filtration/comparison test from Computer Assoc. Int'l v. Altai, 982 F.2d 693 (2d Cir. 1992). In this software/copyright case the abstraction/filtration/comparison test was used to determine whether any copyrightable expression in the computer program had actually been copied. The test operates as such:

"In ascertaining substantial similarity under this approach, a court would first break down the allegedly infringed program into its constituent structural parts (Abstraction). Then, by examining each of these parts for such things as incorporated ideas, expression that is necessarily incidental to those ideas, and elements that are taken from the public domain, a court would then be able to sift out all non-protectable material (Filtration). Left with a kernel, or possibly kernels, of creative expression after following this process of elimination, the court’s last step would be to compare this material with the structure of an allegedly infringing program (Comparison). The result of this comparison will determine whether the protectable elements of the programs at issue are substantially similar so as to warrant a finding of infringement. It will be helpful to elaborate a bit further." (From Digital Law Online, Prof. Lee A. Hollaar, Legal Protection of Digital Information, Ch. 2).

By the logic set out in Altai, a court could use this test to separate the expressive elements of a video game from the functional elements, thus overruling the judge's conclusion that the elements are so intertwined in an interactive experience.

It seems to me that the Judge Steeh's ruling represents a larger public policy decision by the courts to reject state claims for injunctions and court orders based on video game content and the "harmful effects of violent video games." In his opinion, Judge Steeh specifically criticized the state for not finding less restrictive ways to help parents make sound choices about their kids game play. The court's ruling also seems on par with the sentiments of researchers who found difficulty in associating video game violance and real world aggression at the recent subcommittee hearing entitled “What’s in a Game? State Regulation of Violent Video Games and the First Amendment.” The court said, "Dr. [Craig] Anderson's studies have not provided any evidence that the relationship between violent video games and aggressive behavior exists." The judge went on to say that new evidence alleging brain mapping studies that show a link btw violent video games and aggressive thought were also unpersuasive. "The research not only fails to provide concrete evidence that there is a connection between violent media and aggressive behavior, it also fails to distinguish between video games and other forms of media."

In response to the state's claims that the interactive nature of video games makes them more harmful than passive media such as TV, the court said that there is no evidence to support such a claim. The court opined that just as the state alleges a connection between violent video game content and manifestations of agression, it could be found that violent video games actually provide a non-physcial outlet of agression for children. Thus the court found that the Act signed into law by the governor did not materially advance the state's interest in curbing violence among youth, but rather appeared to "discriminate against a disfavored 'newcomer' in the world of entertainment media." Such prejudice against the video game industry does not advance the state's goals.