EFF Brief in Support of Plaintiffs-Appellants

in American Amusement v. Kendrick (Nov. 8, 2000)

No. 00-3643

_________________________________________

_________________________________________

AMERICAN AMUSEMENT MACHINE ASSOCIATION, et al,

Plaintiffs-Appellants,

v.

TERI KENDRICK, in her official capacity, et al,

Defendants-Appellees.

_________________________________________

On Appeal from the United States District Court
for the Southern District of Indiana

(No. IP00-1321-C-H/G)

_________________________________________

_________________________________________

Robert Corn-Revere

Ronald J. Wiltsie, II

Hogan & Hartson, L.L.P.

555 Thirteenth Street, N.W.

OF COUNSEL Washington, D.C. 20004

(202) 637-5600

Cindy Cohn

Lee Tien

Electronic Frontier Foundation

1550 Bryant Street

Suite 725

San Francisco, California 94103

(415) 436-9333

Pursuant to Fed. R. App. P. 26.1 and Circuit Rule 26.1, amicus curiae Electronic Frontier Foundation states (1) that it issues no stock and has no parent company and (2) that Hogan & Hartson, L.L.P. is the only law firm whose partners or associates are appearing or are anticipated to appear on EFF's behalf in this matter. EFF did not appear in the district court.

Disclosure Statement i

Table of Authorities iii

INTRODUCTION *

STATEMENT OF AMICUS CURIAE *

ARGUMENT *

CONCLUSION *

Fundamental First Amendment principles often emerge from seemingly inconsequential disputes. This is such a case. While it may appear farfetched to some that a local regulation of electronic games could have a significant effect on the future of free expression, this case squarely presents two issues that will shape First Amendment jurisprudence for years to come: (1) the constitutional status of new interactive technologies, and (2) the government’s ability to declare certain disfavored content categories to be unprotected speech. The district court below claimed to find that the First Amendment protects some video games, but as a practical matter, provided only minimal protection, if any. The court then took the unprecedented step of extending the "harm to minors" standard to include violent video games, and denied plaintiffs’ motion for a preliminary injunction. The district court reached the wrong result and for the wrong reasons; its decision should be reversed.

The Electronic Frontier Foundation ("EFF") is a non-profit, civil liberties organization working to protect rights in the digital world. EFF actively encourages and challenges industry and government to support free expression, privacy, and openness in the information society. Founded in 1990, EFF is based in San Francisco, with a satellite office in Washington, D.C. EFF has members all over the United States and maintains one of the most-linked-to Web sites (http://www.eff.org) in the world.

EFF believes that free speech is a fundamental human right, that free expression is vital to society. The vast web of electronic media that now connects us is heralding a new age of communications, a new way to convey speech. New digital networks offer a tremendous potential to empower individuals in an ever over-powering world. While EFF is mindful of the serious issues that may arise when information flows free, EFF is dedicated to addressing such matters constructively while ensuring that fundamental rights are protected.

Thus, EFF’s interest in this case. The district court’s decision below unnecessarily infringes on the freedom of speech and, thus, reaches the wrong resolution of this matter. The inclusion of violence in the category of obscene speech – and in the sub-category of speech that is harmful to minors – represents an unprecedented and unwarranted expansion of the categorical approach to the First Amendment. Moreover, this expansion will severely impede the development of the upcoming digital society in ways unforeseen and not fully addressed by the parties or the court below. The district court’s decision has far-reaching implications that would constrain the growth of these new technologies, to the detriment of all.

EFF has authority to file this brief pursuant to Rule 29(a), Fed. R. App. P., the parties having granted their consent.

By enacting Indianapolis General Ordinance No. 72-2000 ("the Ordinance"), the City of Indianapolis has singled out certain arcade-based video games for regulation based on their content. American Amusement Machine Ass’n v. Kendrick, No. IP00-1321-C-H/G, 2000 WL 1528687, at *10 (S.D. Ind. Oct. 11, 2000) ("American Amusement"). Yet the district court declined to enjoin the Ordinance because it concluded that the expressive elements of those games are "inconsequential" and that the principles embodied in Ginsberg v. New York, 390 U.S. 629 (1968), may be extended outside the area of sexual speech to permit restrictions on minors’ access to violent video games. 2000 WL 1528687 at *27-33. The court’s resolution of these issues significantly undervalues both the expressive nature of interactive game technologies as well as the First Amendment cost of extending the categories of unprotected speech to include "violence." The court’s ruling ignores the history of First Amendment jurisprudence in the United States as it relates to new communication technologies, and therefore fails to foresee the massive exception to First Amendment protections that follows from its reasoning.

The district court’s assessment of the level of constitutional protection to be accorded video games was based on the premise that "[e]ach medium must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems." 2000 WL 1528687 at *8 (quoting Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)). This assumption, that each communications medium "is a law unto itself," Kovacs v. Cooper, 336 U.S. 77, 97 (1949) (Jackson, J., concurring), suggests incorrectly that "the Constitution ha[s] to be reinvented with the birth of each new technology." / A closer inspection of First Amendment jurisprudence, however, reveals that courts increasingly apply traditional First Amendment standards to new media. Reno v. ACLU, 521 U.S. 844, 870 (1997). And even in those cases where the courts initially applied only diminished First Amendment protection to new forms of communication, full protection typically is extended to new media as society gains more experience with them. E.g., United States v. Playboy Entertainment Group, 120 S. Ct. 1878, 1886 (2000) (cable television); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502-503 (1952) (cinema). Here, the district court’s decision to extend only limited First Amendment protection to the medium of interactive games was erroneous. /

At first blush, the district court appeared to reject the assumptions of previous cases regarding the constitutional status of video games, as well as the City’s argument below that "video games simply are not a form of expression protected under the First Amendment." American Amusement, 2000 WL 1528687 at *5-10. The court described the creative process involved in creating video games, which includes the creation of characters, story lines and themes, the use of "story boards" to depict action sequences, and the addition of sound and music. Id. at *4. The court noted that "[m]any of today’s games include three-dimensional simulated environments and full motion video similar to the technology used in computer-animated feature films," and it concluded that "[i]t is difficult for First Amendment purposes to find a meaningful distinction between the Gauntlet game’s ability to communicate a story line and that of a movie, television show, book, or — perhaps the best analogy — a comic book." /

But the lower court’s apparent embrace of the expressive status of modern video games is illusory. For the court ultimately based the level of First Amendment protection it was willing to extend to this relatively new medium upon its finding that "the expressive elements of those video games are . . . inconsequential — especially as compared to significant elements of protected expression present in books, television and movies." 2000 WL 1528687 at *34. In other words, the court agreed with the plaintiffs that video games are expressive, just not very much so. The district court then applied a lower level of First Amendment scrutiny for all "violent" games, regardless of the extent to which they may convey a message. See id. at *35 ("even if the violence in a video game is completely justified and shows the forces of good prevailing over the forces of evil in a fantastic battle, it is still regulated"). Accordingly, although it suggested otherwise, the court extended only the "barest minimum" of First Amendment protection to this medium, as if it were akin to nude barroom dancing. See Doran v. Salem Inn, Inc., 422 U.S. 922, 932 (1975).

In this respect, the district court’s opinion applied in substance the holdings of the earlier cases that it purported to disavow. In a series of cases decided almost two decades ago, courts held that video games are not speech protected by the First Amendment because they provide only entertainment and not "information."  E.g., America’s Best Family Showplace Corp. v. City of New York, 536 F. Supp. 170, 173-174 (E.D.N.Y. 1982); Malden Amusement Co. v. City of Malden, 582 F. Supp. 297 (D. Mass. 1983); Tommy & Tina, Inc. v. Department of Consumer Affairs, 459 N.Y.S.2d 220, 227 (N.Y. Sup. Ct.), aff’d on other grounds, 464 N.Y.S.2d 132 (N.Y. App. Div. 1983); Kaye v. Planning & Zoning Comm’n., 472 A.2d 809 (Conn. Super. Ct. 1983); Caswell v. Licensing Comm’n, 444 N.E.2d 922 (Mass. 1983). These cases all involved zoning and licensing regulations of arcades — none analyzed the government’s ability to regulate the content of video games.

In the first break with this line of cases, this Court (almost a decade later) expressed significant doubt about the conclusion that "all video games can be characterized as completely devoid of any first amendment protection." Rothner v. Chicago, 929 F.2d 297, 303 (7th Cir. 1991). The Court in Rothner was uncomfortable with resolving the First Amendment question in the context of a motion to dismiss, since there was no record by which to determine "whether the video games at issue here are simply modern day pinball machines or whether they are more sophisticated presentations involving storyline and plot that convey to the user a significant artistic message protected by the first amendment." Id. It compared its situation with that facing the Supreme Court as it began to decide the First Amendment status of cable television, and said that "[t]o hold on this record that all video games — no matter what their content — are completely devoid of artistic value would require us to make an assumption entirely unsupported by the record and perhaps totally at odds with reality."  Id.

Here, by sharp contrast with the situation in Rothner, the court below was not confronted with a barren record, but instead received submissions from both sides on the communicative nature of video games. From the plaintiffs the court heard evidence that "today’s games are highly interactive versions of movies and storybooks, replete with digital art, music, complex plots and character development." American Amusement, 2000 WL 1528687 at *7; see id. at *4-5. From the defendants the court saw a compilation video that demonstrated violent sequences from selected games. Id. at *9-10. After weighing the evidence, the district court found that "the visual art and the description of the action-adventure games in the record support plaintiffs’ contention that at least some video games contain protected expression." Id. at *9.

But as it turned out, this conclusion was faint praise for the communicative nature of video games, because the court ultimately based its parsimonious application of First Amendment protection on what it described as the "inconsequential" expressive elements of some games compared to other media. The paradigmatic example was a game called "The House of the Dead 2," in which the player adopts the persona of a character named "James" and attempts to save a town from a cadre of zombie-like creatures by shooting them. While the court found that some games may be constitutionally protected, it suggested that the speech elements of "The House of the Dead 2" were "perhaps . . . so inconsequential as to remove the game from the protection of the First Amendment." Id. at *9-10.

This conclusion — that the "message" of some games is insufficiently robust to merit much protection — is wrong factually and led the court to misapply the law. To describe the artistic or communicative elements of such games as inconsequential prompts the question, "as compared to what?" Certainly anyone familiar with the modern horror film genre would not suggest that this body of work contributes much to further the practice of deliberative democracy, / yet such films are fully protected by the First Amendment. American Booksellers Ass’n. v. Hudnut, 771 F.2d 323, 330 (7th Cir. 1985), aff’d mem., 475 U.S. 1001 (1986); Video Software Dealers Ass’n. v. Webster, 968 F.2d 684 (8th Cir. 1992). The same is true of role-playing games, like "Dungeons and Dragons." Watters v. TSR, Inc., 904 F.2d 378, 382-383 (6th Cir. 1990). As Chief Judge Richard Posner has explained, to require the expression of ideas or opinions as a condition of constitutional protection would represent "a shocking contraction of the First Amendment as it has come to be understood," for it would exclude most music and visual art, along with much of literature. /

The district court’s inapt assessment of the communicative nature of video games led it to apply only attenuated constitutional protection to this medium, evidently on the assumption that it should split the difference between those games that seem less "artistic" or "expressive" than others. But it does not follow that courts may provide less First Amendment protection for all video games because some do not "communicate" sufficiently. Such an approach is flatly contrary to the First Amendment overbreadth doctrine, which provides that the government cannot enforce laws against unprotected speech if they are written so broadly as to encompass — and thereby chill — protected expression. Forsyth County v. Nationalist Movement, 505 U.S. 123, 129-130 (1992); Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-214 (1975).

Here, the court even acknowledged that the more expressive the game, the more likely it is to be restricted by the Ordinance. Because it distinguishes between games based on their sexual and/or violent content, the Ordinance presumes the capacity of games to communicate messages, ideas or feelings.  American Amusement, 2000 WL 1528687 at *10. Indeed, the very terms of the Ordinance trigger greater regulation to the extent a game is more artistic. Id. at *2 (application only to "realistic" games). But as the Supreme Court found recently, a law designed to protect young people from the presumed adverse effects of some specified subject matter "is the essence of content-based regulation" and is subject to strict scrutiny. Playboy Entertainment Group, 120 S. Ct. at 1885; see also Hudnut, 771 F.2d at 329-330 (presumed impact of disfavored speech is reason for its protection). / The district court below failed to grasp this basic tenet of First Amendment law, and erroneously applied a diminished level of constitutional protection to video games because of their ability to communicate. See Schultz v. City of Cumberland, 228 F.3d 831 (7^th Cir. 2000).

If the Ordinance had sought to regulate children’s access to books about violence, established law would have subjected the law to full First Amendment scrutiny. Winters v. New York, 333 U.S. 507, 510-11 (1948); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 531 (Tenn. 1993). The same would be true if it had sought to regulate children’s access to violent films or videos. Interstate Circuit, Inc. v. City of Dallas, 390 U.S. 676, 678 (1968); Webster, 968 F.2d 684. Yet despite assertions to the contrary, the district court below treated the interactive medium of video games quite differently from other more traditional forms of speech. / This conflicts with the awareness by a growing number of courts that "the medium in which experience is encoded is irrelevant to its expressive character and social consequences" — and to the level of First Amendment protection it should receive. Miller v. City of South Bend, 904 F.2d at 1099 (Posner, J., concurring).

The district court’s reticent application of First Amendment principles to this new medium echoes the incremental and inconsistent way in which courts historically treated new communications technologies before Reno v. ACLU. 521 U.S. at 870. See generally Zuckman, et al., supra note 2, at 189-197. Zechariah Chafee observed sixty years ago that "when additional methods for spreading facts or ideas were introduced or greatly improved by modern inventions, writers and judges had not got into the habit of being solicitous about guarding their freedom." This led to censorship of the mail, the importation of foreign books, the stage, cinema and radio. Zechariah Chafee, Free Speech in the United States 381 (1941). According to Ithiel de Sola Pool, this problem has been compounded with the advent of newer electronic media:

Ithiel de Sola Pool, Technologies of Freedom 250 (1983).

In this respect, previous judicial treatment of video games (including by the district court below) is comparable to early decisions regarding film.  As with the initial cases defining the constitutional status of arcade games, when the Supreme Court first considered the new and novel medium of moving pictures, it found, as a matter of "common sense," that cinema was not "speech" and thus was not protected by the First Amendment. Mutual Film Corp. v. Industrial Comm’n, 236 U.S. 230, 244 (1915). The Court said that the technology of film poses a special danger that "a prurient interest may be excited and appealed to," and noted that "there are some things which should not have pictoral representation in public places and to all audiences." Id. at 242; cf. Preamble to the Ordinance (regarding the need to protect "minor children from influences that the parents find inappropriate or offensive").

Decades later, after cinema became a more established and accepted part of society, the Supreme Court began to extend to film some measure of the First Amendment protections accorded the traditional press. Joseph Burstyn, Inc., 343 U.S. at 502-503 & n.13. But, like district court below, the Supreme Court noted that "[e]ach method [of communication] tends to present its own peculiar problems," and extended only limited First Amendment status to film. Id. at 503. Local censorship boards flourished during this period of diminished protection. See, e.g., Times Film Corp. v. City of Chicago, 365 U.S. 43, 69-78 (1961) (Warren, C.J. dissenting) (providing detailed examples of film censorship and noting the "astonishing" extent "to which censorship has recently been used in this country"). And, like the current debate over video games, much of the dispute centered on whether "motion pictures may be treated differently from newspapers because many movies are produced essentially for purposes of entertainment." Id. at 76. Eventually, the Court elevated the constitutional status of film to be on par with that of the press. See Freedman v. Maryland, 380 U.S. 51, 58-61 (1965); id. at 62 n.1 (Douglas, J. concurring) ("the Chicago censorship system, upheld by the narrowest of margins in Times Film Corp. . . . could not survive under today’s standards"); New York v. Ferber, 458 U.S. 747, 771 (1982) (describing film as one of the "traditional forms of expression such as books" that must be protected as "pure speech").

In short, the courts ultimately gave movies their constitutional due, but it took a long time for them to get there. The last film censorship board in America was not dismantled until 1993, almost eighty years after the Supreme Court first assessed cinema’s constitutional status. See Elizabeth Kastor, It’s a Wrap: Dallas Kills Film Board, Washington Post, Aug. 13, 1993, at D1. In the meantime, the incremental approach to First Amendment analysis exacted a heavy toll on freedom of expression. /

By following the analysis of the early film cases, the court below sets the stage to repeat the unfortunate history of censorship that followed in their wake. The adverse impact of freedom of expression is even greater in the current environment, as we are on the cusp of an explosion of new interactive media that combine electronic games with the ability to communicate online as well as to exhibit movies. See, e.g., Michel Marriott, Playstation 2 as Trojan Horse, New York Times, Oct. 26, 2000 (http://nytimes.com/2000/10/26/technology/26PLAY.html) (new console combines gaming function with Internet connectivity, DVD playback and computing capability, among other possibilities); Christopher Stern, Sony’s Serious About Playstation 2, Washington Post, Oct. 28, 2000 at E1 ("the company is positioning its new box, with its DVD player and CD-ROM drive, to become the very heart of the home entertainment center"); Richard Shim, Sega’s Got Game . . . on the Net, ZDNet News, Oct. 27, 2000 (http://dailynews.yahoo.com/h/zd/20001027/
tc/sega_s_got_game_on_the_net_1.html). One recent estimate suggests that TV and game consoles will account for half of all broadband reception devices by 2003, with 20 million set-top boxes and 16 million gaming consoles. Forrester Research, Inc., Press Release: Broadband Content Will Become the Entertainment Messiah for TVs, Not PCs, According to Forrester Research, Oct. 30, 2000 (http://www.forrester.com/
ER/Press/Release/0,1769,425,FF.html); 20 Communications Daily, Warren Communications News, Nov. 2, 2000, at 8.

The City no doubt will maintain that it is only restricting arcade games, and is not seeking to regulate home game consoles, DVD players or Internet devices. But for purposes of First Amendment analysis, the district court’s implicit application of attenuated constitutional protection for interactive media would foster such regulations. As described infra, there is no shortage of proposed restrictions that would be encouraged by the decision below. If and when such new restrictions are adopted, the district court’s incremental reasoning will be of no assistance in resolving the inevitable First Amendment questions that arise from the widespread use of interactive, computer-based media.

Perhaps for that reason, courts since Reno v. ACLU have abandoned the outmoded cycle of first denying protection to a new medium, then providing limited protection, and finally — years later — offering full First Amendment status. See generally Zuckman, et al., supra note 2, at 196-197. Every court that has evaluated the interactive medium of the Internet has agreed from the outset to provide undiminished protection. / Here, the district court has acknowledged that video games communicate. That, after all, is the reason for the regulation. American Amusement, 2000 WL 1528687 at *10 ("the City has singled out certain games for regulation based on their content"). Having made that finding, there is no justification for the court’s dilution of First Amendment principles because of the method of communication.

The district court’s decision to expand the "harm to minors" standard to include violence represents the first expansion of unprotected categories of speech since the beginning of modern First Amendment jurisprudence. The logic of the decision opens a potentially vast exception to traditional protections for free expression, and it should be reversed.

Early First Amendment cases recognized what was then described as certain "well-defined and narrowly limited classes of speech" that were long considered to be outside the First Amendment’s protection. These categories included "the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words,’" Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572 (1942), and commercial speech, Valentine v. Chrestensen, 316 U.S. 52 (1942). Since those early pronouncements, however, the clear trend has been toward greater constitutional protection of speech, to the extent that some scholars suggest that this categorical approach has "largely been discredited and abandoned." Rodney A. Smolla, 1 Smolla & Nimmer on Freedom of Speech 2-70 (1997).

Commercial speech now receives First Amendment protection, 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), as do "lewd," Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115 (1989), "insulting," Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), and even "fighting words," R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). Substantial constitutional protections buttress the freedom of speech alleged to be obscene, Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 65 (1963), or defamatory, because freedom of expression must have substantial "breathing space" in order to survive, New York Times Co. v. Sullivan, 376 U.S. 254, 271-272 (1964) (citation omitted). This trend has narrowed the "variable obscenity" or "harm-to-minors" category of speech as well. Since the Supreme Court first articulated this standard in Ginsberg v. New York in 1968, it has limited regulation in this area to "borderline obscenity" or to material considered to be "virtually obscene."  Virginia v. American Booksellers Ass’n, 484 U.S. 383, 390 (1988).

The district court’s decision to reverse this trend toward narrowing the "harm-to-minors" category was based primarily on two factors. First, it concluded that the interest underlying Ginsberg is not confined to sexual matters, but extends to the "psychological well-being of children" generally. 2000 WL 1528687 at *32. Second, the court noted that historical antecedents to modern obscenity law included very broad restrictions on profanity, blasphemy and depictions of violence, so that the concept of what can be obscene may be too limited by contemporary understandings. Id. at *33 (citing Kevin W. Saunders, Violence as Obscenity: Limiting the Media’s First Amendment Protection 113-118 (1996)).

Neither of these considerations supports an expansion of the variable obscenity test. First, while society may have an unquestioned interest in the well-being of youth, that generalized concern is not sufficient to negate traditional constitutional requirements. Playboy Entertainment Group, 120 S. Ct. at 1886-90; Butler v. Michigan, 352 U.S. 380, 381 (1957). The district court was simply trying to evade the burdens of proof that accompany speech restrictions with the following reasoning:

• Ginsberg held that local governments may act to protect the well-being of youth without offering social science research definitively proving the danger of exposure to girlie magazines;
• Indianapolis is seeking to protect the mental health of children by regulating violent video games as a form of obscenity;
• Ergo, Indianapolis need not prove that video games damage childrens’ minds.

One problem with this syllogism, however, is that all other courts that have considered similar questions have declined to expand upon its major premise. For example, the Supreme Court rejected arguments that the legislature only needs a rational basis to determine that exposure to contraceptive information is "harmful to minors," finding that Ginsberg applies only to "obscene material" that is "not constitutionally protected."  Carey v. Population Servs. Int’l, 431 U.S. 678, 697 n.22 (1977) (plurality op.). A majority of the Court similarly held in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), that the government must prove that any policy intended to protect children from "harmful" material actually serves the stated interest. Id. at 72-73. Consequently, the district court’s reasoning is entirely circular: It found no need to demand significant proof of the psychological impact because the content to be regulated is obscene as to minors, and violent video games are "obscene" because Indianapolis says they are.

Once again, other courts have declined to take this leap, e.g., Eclipse Enters. v. Gulotta, 134 F.3d 63 (2d Cir. 1997); Video Software Dealers Ass’n v. Webster, 968 F.2d 684 (8th Cir. 1992); Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520 (Tenn. 1993), and for good reason. The purposes and motivations underlying the regulation of sexual materials in the United States has far more to do with the "complex tapestry" of American history and culture than it does the presence (or absence) of social science research. See generally Richard A. Posner, Sex and Reason 60-66, 218-219 (1992). The regulation of skin magazines approved in Ginsberg was grounded in notions of morality and values, not actual harm. By comparison, violence is far more endemic to contemporary American culture, with elements woven into the fabric of literature, film, philosophy, religion, fairy tales, video games, children’s toys, photojournalism, and sports. See generally, Why We Watch: The Attractions of Violent Entertainment (Jeffrey H. Goldstein, ed., 1998) ("Why We Watch"). Empowering the government to delete "violence" from constitutional protection thus "leaves the government in control of all the institutions of culture, the great censor and director of which thoughts are good for us." Hudnut, 771 F.2d at 330.

With respect to evidence of harm, the court reviewed social science studies on video game and media violence and concluded that the Ordinance was not simply based on "conjecture and surmise." 2000 WL 1528687 at *24. Others may address whether this body of research is credible or if their findings are sufficient to establish a compelling interest. See, e.g., Jeffrey Goldstein, Immortal Kombat: War Toys and Violent Video Games, in Why We Watch, 53-68 (noting that research on violent video games often fails to distinguish between aggressive play and aggressive behavior). A more fundamental question is whether the research findings are compatible with the analytic framework of obscenity law. That is, does the notion of "harm," however it may be measured in a particular study, correspond to a "morbid interest" in violence by the typical 17-year-old in Indianapolis, and do such depictions of violence lack serious literary, artistic, political or scientific value?

Such questions defy the easy answer of the Ordinance. Chief Judge Harry Edwards of the United States Court of Appeals for the District of Columbia Circuit wrestled with this difficult issue after expressing an initial opinion about the possible effects of televised violence. / After a comprehensive review of the social science literature, Judge Edwards found that the evidence could not support programming restrictions consistent with the Constitution. See Harry T. Edwards & Mitchell N. Berman, Regulating Violence on Television, 89 Northwestern U. L. Rev. 1487 (1995). Judge Edwards and his co-author concluded that "[w]hen it comes to televised violence, we cannot imagine how regulators can distinguish between harmless and harmful violent speech, and we can find no proposal that overcomes the lack of supporting data." / They added: "We cannot imagine how a regulator might fix rules designed to ferret out gratuitous violence without running the risk of wholesale censorship of television programming." Id. at 1502 (emphasis in original).

The court’s second observation, that some antiquated obscenity laws contained expansive restrictions on blasphemy or violence, is even less persuasive as a rationale for expanding variable obscenity in the 21st Century. The fact that our history includes the unfortunate episode of Comstockery is not a reason to repeat the mistake, any more than it would support reinstating the death penalty for sodomy, as it existed in Colonial America. / With respect to constitutional analysis, it should be kept in mind that a principal purpose of the 1873 Comstock Act was to prohibit the dissemination of information about contraceptives. Posner, Sex and Reason, supra, at 78-79. Yet it scarcely could be argued that adding birth control information to a definition of variable obscenity would survive today in light of Carey and Bolger. Indeed, when an updated Comstock restriction on the dissemination of abortion-related information was included in the Communications Decency Act, the U.S. Justice Department refused to even defend the provision in court. Sanger v. Reno, 966 F. Supp. 151 (E.D.N.Y. 1997).

The district court’s decision below with respect to violence similarly is indefensible, and should be reversed. Winters, 333 U.S. at 510, 519 (prohibiting stories of bloodshed and lust does not relate to "indecency or obscenity in any sense heretofore known to the law").

The district court states that its holding is limited and will not extend beyond video games because the expressive elements of games are "inconsequential" compared to significant elements of protected expression present in "books, television and movies." 2000 WL 1528687 at *34. It argues that treating "extremely violent video games" as being harmful to minors will not inevitably lead to sweeping restrictions on other media in light of experience with restrictions on childrens’ access to sexual content. Such restrictions have scarcely ‘cleansed’ literature, films, and television, for example, of sexual themes and content." Id. at *35. This sanguine assessment of the court’s ruling is unsupported by history or logic and is belied by the number of censorship proposals waiting in the wings. 

The court’s assumption that more "expressive" media will be spared the impact of its decision is baseless. The point of the court’s decision is that violence may be treated like obscenity, a category of speech outside the First Amendment’s umbrella. / Unprotected speech is not excluded from the First Amendment’s reach because it is not expressive; it is exiled because the assumed harm of such speech is believed to outweigh its value. R.A.V. v. St. Paul, 505 U.S. at 383-384; Miller v. City of South Bend, 904 F.2d at 1097 (Posner, J., concurring). If this view prevails, that violence and obscenity are equivalents, there is little reason why other tribunals might not apply the same teachings to "fully expressive" media.

The district court failed to appreciate that there was wholesale censorship of literature in the United States when a more expansive definition of obscenity existed during the reign of Anthony Comstock, and for many years thereafter. Targets of Comstock’s crusades included such authors as by D.H. Lawrence, James Joyce, Theodore Dreiser, Edmund Wilson, Leo Tolstoy, Honore de Balzac, and George Bernard Shaw among many others. See generally Edward De Grazia, Girls Lean Back Everywhere 72-73, 710 (1992). Towards the end of his life, Comstock claimed to have destroyed almost 160 tons of "obscene" literature. Blanchard, supra note 12, at 758. And, as noted earlier, a similar experience occurred with the censorship of film. See supra note 8.

Looking forward, a host of censorship proposals would gain strength if the district court’s decision is upheld. At the local level, various communities have proposed ordinances even more expansive than the Indianapolis law, echoing the proliferation of film censorship boards from years past. E.g., Fran Spielman, Proposal Curbs Sale of Explicit Video Games, Chicago Sun Times, Oct. 31, 2000. Nationally, the Senate Commerce Committee approved a bill that would require the FCC to ban televising violent programs before late night hours if it finds that the use of V-chips is "insufficiently effective" to protect children. The Children’s Protection From Violent Programming Act, S. 876, 106th Cong. § 3 (2000). FCC Commissioner Gloria Tristani, who heads the Commission’s Task Force to implement the V-chip, recently called upon Congress and state governments to treat violent programs as obscene, and dismissed First Amendment concerns as nothing more than the "most popular sham objection to protecting children from harmful media influences." Gloria Tristani, On Children and Television, Keynote Address, Annenberg Public Policy Center Conference on Children and Media, June 26, 2000.

The district court’s decision thus opens the door to a wide variety of censorial initiatives. Its assurances regarding the limited nature of its holding are not plausible, for courts often are notoriously bad at predicting the future impact of their rulings. Compare, e.g., Rice v. Paladin Enters., 128 F.3d 233, 265-266 (4th Cir. 1997), cert. denied, 523 U.S. 1074 (1998) (describing "Hit Man" manual case as "unique in the law" and predicting that it would not threaten other media because "it will presumably never be the case that [a] broadcaster or publisher intends, through its description or depiction, to assist another or others in the commission of violent crime"), with Byers v. Edmondson, 712 So.2d 681, 687 (La. App. 1 Cir. 1998), writ denied, 726 So.2d 29 (La. 1998), cert. denied, 526 U.S. 1005 (1999) (reversing lower court decision to dismiss case and remanding for trial a claim that the film Natural Born Killers had inspired real life violence). Such is the case here. The district court’s decision, if not reversed, could spawn a new age of Comstockery for the Digital Age.

For the foregoing reasons, EFF respectfully requests that this Court reverse the decision of the district court.

Respectfully submitted,

______________________________

Robert Corn-Revere

Ronald J. Wiltsie, II

Hogan & Hartson L.L.P.

555 Thirteenth Street, N.W.

OF COUNSEL Washington, D.C. 20004

(202) 637-5600

Cindy Cohn

Lee Tien

Electronic Frontier Foundation

1550 Bryant Street

Suite 725

San Francisco, California 94103

(415) 436-9333

This Brief of Amicus Curiae Electronic Frontier Foundation was produced on a computer using the Microsoft Word 97 word processing program. EFF's counsel has used that program's word count function to verify that the number of words in the brief, including (a) headings, (b) footnotes, and (c) quotations but excluding the (a) cover, (b) disclosure statement, (c) table of contents, (d) table of authorities, and (e) this certification, is no more than 6960, under the limit of 7,000 words allowed by Fed. R. App. P. 29(d).

_________________________________

Robert Corn-Revere

CERTIFICATE OF SERVICE

I hereby certify that two copies and one diskette containing a soft copy of the foregoing Brief of Amicus Electronic Frontier Foundation Supporting Reversal In Favor of Plaintiffs-Appellants were served this 8th day of November, 2000 by first-class mail, postage prepaid, on:

___________________________

Robert Corn-Revere

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