Illinois Ban On Explicit Video Games Is Unconstitutional

An anonymous reader writes, "A federal court has struck down an Illinois law that criminalized the sale of 'sexually explicit' video games to minors. In reaching this decision, the court held that the Illinois law was too broad, because it could be read to encompass any game which displayed a female breast, even for a brief second. Interestingly, the court chose the game God of War as the model of gaming art which must be protected. As the court explained, 'Because the SEVGL potentially criminalize the sale of any game that features exposed breasts, without concern for the game considered in its entirety or for the game's social value for minors, distribution of God of War is potentially illegal, in spite of the fact that the game tracks the Homeric epics in content and theme. As we have suggested in the past, there is serious reason to believe that a statute sweeps too broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey.'"

Comments

Wait...

[frosty_tsm]

Are we saying that Greek social values are trumping modern day ones?

I see more parades on the horizon...

Re:Wait...

[sckeener]

It has been said before but when the public wants to censor give them graphic violence and sex in a biblical wrapper and they won't censor...

It sounds like the judge is taking the track that any historically accurate game is ok...

Of course it doesn't always work...take Oscar Wilde's Salome...banned in the UK and produced in France.

Re:Wait...

[morgan_greywolf]

It has been said before but when the public wants to censor give them graphic violence and sex in a biblical wrapper and they won't censor...

Sodom & Gomorrah Only on Xbox 360! Complete with homosexuality, rape, and brutalization! Will you survive the Wrath of God? Brought to you by Religious Right Software: Games With a Higher Purpose.

Re:Wait...

[DragonWriter]

It sounds like the judge is taking the track that any historically accurate game is ok...

More likely, the judge is taking the position that the First Amendment does not allow banning material on the basis of "obscenity" unless the three prongs of the Miller test are satisfied, particularly the third prong: "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

Paint me surprised

[Control Group]

How stunningly...sane.

Every now and again, something happens to help convince me that all hope is not, in fact, lost.

Re:Paint me surprised

[RsG]

Why is this surprising? That the law was blatantly unconstitutional was clear. This was strictly a political move from the get-go.

The politicians involved said to the public "look, I'm taking a stand on the evil violent games! Vote for me!" because games are a wonderful scapegoat, and because taking such a stance is politically safe. The law didn't need to remain in effect in order to serve its purpose, it only needed to be passed. I doubt anyone who drafted the thing will care at this stage, months after the fact.

Now what will they say to the public? "Oh folks, I tried, but those damn activist judges ruled against me. So sorry." It's so easy to shift the blame when the public doesn't care whether those in power respect the constitution.

What amazes me isn't that the judges showed common sense. That's their job. What amazes me is that voters continue to fall for these simple tricks.

Re:Paint me surprised

[Control Group]

Why is this surprising? That the law was blatantly unconstitutional was clear

That, unfortunately, is often no bar to laws being upheld by the judiciary. Retroactive copyright extensions are an obvious example. The effective federalization of the drinking age (and the speed limit) is another. More than half the laws passed under the auspices of the commerce clause also qualify.

Hence my surprise.

I have great faith in the US' judicial system in criminal matters. Less in civil matters, even less when large sums of money are involved, and least of all when political activism and "doing things for the children" or "fighting terrorism" are involved.

This case is, in the oft-cited "grand scheme of things," fairly minor. But it's still encouraging to me. But then, maybe I'm a cynic.

Re:Paint me surprised

[hey!]

Well -- you have to look at the reasoning, not the result, to decide if the ruling was rational.

Laws can regulate expressive speech in various ways, but laws which regulate speech based on content (as opposed to the manner in which the speech is done) must pass what is called "strict scrutiny".

Under "Strict scrutiny", the government has a burden of proof to show that the law in question is narrowly tailored to serve a compelling public interest.

Persons of a libertarian bent might see keeping sexually explicit games out of the hands of minors as failing to rise to the level of a compelling public interest. However it sounds like the law failed because it was not "narrowly taliored".

A law which is intended to restrict access by minors to sexually explicit games may not under any conceivable circumstnaces restrict anything else. It probably helps that there is an example of how the law does more than it is supposed to, but such an example doesn't have to exist. Hypothetical future expression is important to protect too.

Re:Paint me surprised

[Dhalka226]

Why is this surprising? That the law was blatantly unconstitutional was clear

That, unfortunately, is often no bar to laws being upheld by the judiciary. Retroactive copyright extensions are an obvious example.

Well I'm sure to get some troll mods for this, but what the hell. There's a certain amount of zealotry in your statement usually only reserved for religion.

The fact that I do not agree that retroactive copyright extensions are unconstitutional should speak to the fact that it is not "blatantly unconstitutional," but if you were arguing with me about it I wouldn't be too put out if you were just sure you were right.

The problem I have is you're arguing with the people whose job it is to decide these matters. (If you want to get REALLY technical, the power to declare laws unconstitutional, which you seem to support, is nowhere to be found in the Constitution.) The case of retroactive extensions was heard and the extensions upheld. Until such time as they review the decision and overturn it, not only are retroactive copyright extensions not blatantly unconstitutional, they are not unconstituional at all. While I know nothing about you specifically, /.'ers often like to make these sort of assertions about Constitutionality without even any legal education which just makes it twice as annoying to me. We'll complain about managers who aren't technical making technical decisions, but in the very next breath we'll argue the law with judges. It really floors me.

Look, if these issues were as simple as you make them out to be, there wouldn't be a judiciary. At the very least, could we not pretend Constitutional issues are so cut and dry? Very little about the law is blatantly anything. Often including intelligible.

Re:Paint me surprised

[kilgortrout]

Now what will they say to the public? "Oh folks, I tried, but those damn activist judges ruled against me. So sorry." It's so easy to shift the blame when the public doesn't care whether those in power respect the constitution.

No one even vaguely familiar with the federal judiciary will ever accuse the Seventh Circuit of being activist judges. Actually, this result is pretty well settled precedent at this point in all the federal circuits. These type of laws have been routinely struck down everywhere so the result here is hardly surprising.

I couldn't agree with you more; this was a stupid election year stunt and everyone knew the law would be struck down in the courts.

Re:Paint me surprised

[Vengie]

Many things are /blatantly/ unconstitutional. Like tasering a suspect on the ground in handcuffs. ["Pain as a compliance technique" is plainly unconstitutional. Lethal force is permitted only under limited circumstances, tennessee v garner. The only reasons you can be frisked during a Terry stop is so that the police can ensure their own safety. Even assuming arguendo that the pre-handcuffing tasering is constitutional, the rationale behind allowing law enforcement to use force -- to PROTECT themselves and others -- breaks down once the subject is HANDCUFFED. The force of additional tasering is in no way shape or form proportionate to any possible risk he could pose. Blatantly unconstitutional.] And now, like a prick, I will quote the man who taught me criminal law (a SCOTUS clerk in his time...) "But it's one of the strange features of the system that unconstitutional tactics often survive quite a long time after it's pretty clear they're unconstitutional." This law was blatantly unconstitutional. Read the goddamn text of it.

Two additional side notes: Did you just question judicial review and then expect anyone to continue reading and take you seriously? I think Marbury is pretty well accepted at this point....
And....The court has specifically noted that there can be manifestly unjust laws that courts may sometimes wrongly uphold. [That doesn't make them any less unjust; it just makes the ju[stic|dg]es a bunch of jerks] See e.g. Walker v. Birmingham. </rant>

So, Greek and Roman Gods are ok?

[WillAffleckUW]

What about Hindi ones?

Or Aztec?

Or Celtic?

That said, good ruling.

upcoming video game titles based on this ruling:

[circletimessquare]

"the catcher in the rye", a very bloody fps

"death of a salesman", the graphic language mmorpg

"to kill a mockingbird", with an orgy scene

Old news?

[lpangelrob]

I can't really figure out where the new news is in this, seeing as we're already on the "Illinois ain't paying squat" part of this saga.

Blagojevich hasn't paid for video lawsuit as judge ordered (Chicago Tribune, reg. required, subscription-free Sun Times here.)

...[L]awyers from Jenner & Block in Washington, D.C. say they haven't received the money or an explanation for the delay, according to court documents. So they went back to the courtroom earlier this month to ask the judge to force the administration to comply.

Chalk up another horrible idea to good ol' Rod, (illegally importing drugs from Canada, buying $2.5 million of non-FDA approved flu shots). But all's well - we voted him in another 4 years too.

Two comments

[n0mad6]

1) I'm assuming the members of the court have either not played God of War, not read the Odyssey, or both
2) I find the idea of considering one brief scene of polygonal breasts to be the most damaging aspect of God of War with regards to children... shocking, quite frankly.

Re:Two comments

[laffer1]

People can't have it both ways.. women want to breast feed in public. Women like to wear practically nothing at the beach. Sears likes to send underwear ads in the sunday newspaper. Then video games are immoral for showing the same thing in an often ANIMATED way.

If society choses to be modest in every other way then they can regulate video games. Many video games are played by adults... so much in fact that Nintendo released a console targeted toward them! Just as the simpsons isn't meant for a 5 year old, not all video games are for little tikes. I think my cousin could handle most of the games in my collection (he's a minor) but I wouldn't let him play doom 3. However, his parents let me play doom at 15 (just a little older) at their home when he was almost 2. Its up to them to sensor him and not the government, the PTA, or anyone else.

1. Parents should be responsible for their children. That includes their behavior and what they view/see.
2. Parents should monitor what their children do online and offline. They should teach them what they expect and how to be safe.
3. When someone tries to solicit a child online, its not just that persons fault. Its also the parents fault for not watching their child, letting them use myspace or ET or whatever.
4. Parents need to learn their kid doesn't get a cut in line or special favors. Nothing is that much greater about your kid than every other kid on the planet and if there was it would be on CNN right now.

I could have handled most if not all video games in my teens. Hell i was playing doom and leisure suit larry at 16. I didn't blow up anything, threaten anyone or have 8 children with a bunch of child support. I guess video games aren't the only motivating factor in society! Heaven forbid I might have learned something from my parents and others.

Re:upcoming video game titles based on this ruling

[Bonker]

"to kill a mockingbird", with an orgy scene

Wait, what?

Atticus better not find out about that or Scout and Jem are going to be in TROUBLE!

Total Bullshit

[vivin]

You know, what ever happened to Parenting? I hate all these "Oh will someone think of all the poor children!" laws. I understand that we need these laws to a certain extent, but come on. Seriously, if I was concerned that my children would be exposed to extremely violent games, or overtly sexual games, then I would monitor what I got them. Isn't that also why have ESRB ratings?

Increasingly, people are looking for scapegoats for violent or antisocial behaviour in children. Honestly, you can either chalk it up to bad parenting, or just the innate propensity of our species to violence.

So like I said, it's all bullshit. I'm glad this was struck down.

What's next??

[surprise_audit]

So what's next after games that show a brief shot of a breast?? Pornographic literature?? It should be really interesting watching the fallout from that... The Song of Solomon is fairly explicit, and there's all kinds of violence in the other books of the Old Testament. But wait, the government can't get involved in religion, so they can't ban the Bible. But wait, it's pornographic and violent!! Arggh...:)

Anyway, does the game show a shot of a *real* breast, or one drawn by an artist?? If drawn breasts are as bad as the real thing, a lot of famous artworks are going to be banned too...

Re:What's next??

[Shados]

But remember, its videogames! They don't go by the same rule as "real" art, duh!

It is rediculous how people forget history and let it happen over and over. Anyone take a modern history book, and read about north american culture in 50-60 years ago. People DID talk about books the way they talk about videogames today. I'm not sure about protestant-land, but in catholic areas, fort the longest time books like The Three Musketeers were -BANNED- because of their content. A few centuries before, paintings and such were often shunned down or banned because of similar things

Now its video games.

Anyone wants to make a long term bet with me? 10$ that within 50-60 years, you'll hear conservatives go "OMG! All these Virtual Reality Systems are teaching our kids the worse things! They should play console videogames so their brains don't rot away, like we did in the good old days!"

Anything thats new is automaticaly a scapegoat for everything bad in society. For now, its videogames and movies.

Re:What's next??

[RsG]

There's a quote by Douglas Adams along those same lines:
"Anything that is in the world when you're born is normal and ordinary and is just a natural part of the way the world works. Anything that's invented between when you're fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. Anything invented after you're thirty-five is against the natural order of things."

Slightly off topic, but still apt. The people who get snookered into thinking these laws are a good thing are very much in the last category.

The Ruling

[PakProtector]

Here's a copy of the ruling: ESA v. Illinois

Good grief...

[Duncan3]

How exactly did Americans get so completely uptight about boobs and yet graphic violence and games about killing cops are just fine. It's completely insane.

Must be a fundamentalist involved in there somewhere, the quesiton is only which religion?

.

Re:Good grief...

[inviolet]

How exactly did Americans get so completely uptight about boobs and yet graphic violence and games about killing cops are just fine. It's completely insane.

Take care here. Calling something 'insane' or 'evil' or 'nuts' explains nothing, but it kills your own motivation to seek further understanding. Whereas almost all human behavior is actually understandable.

In this case, America is sexually repressed. That is why sex appeal can sell practically anything, and why an unclothed breast gets all the Normals so excited. The clamor for censorship is their way of quieting the ensuing cognitive dissonance.

A possible secondary element is the approach that American women have taken towards nudity. In order to maximize the emotional impact (and hence the indirect financial value) of exposing their own breasts, American women demand a ban on all public sensual exposures of female breasts. They're just maximizing profit by shrinking the supply, you see. Contrast this situation to Europe, in which sensual breast exposures are ubiquitous and so European men get no thrill out of getting the same from their mates.

Re:Good grief...

[inviolet]

It's not sociological theory, it's economic theory. It all becomes obvious when you realize (or should I say accept?) that sex is a service which women trade on the open market. The presence of prostitutes creates a free market for sex, which puts a competitive pressure on wives. Prostitutes drive down the "fair market value" of wife-provided sex, which in turn means that wives cannot drain as many resources (emotional, physical, financial, etc.) from their husbands as they otherwise might. This is the primary reason why women oppose prostitution.

Of course they say that their oppposition is out of "concern for the prostitutes' wellbeing", but not even they believe such a claim, when it is so obvious that the illegality is precisely what makes prostitution so squalid and dangerous.

As for academic research, bear in mind that this is a Politically Incorrect subject, because we all know that Marriage Is About True Love. Nobody likes it when you prod that particular cherished belief. But for a start, read Edlund and Korn's "Theory of Prostitution" paper, in which (among other things) they attempted to explain why prostitutes are paid so much per hour. They found that a prostitute's hourly rate is comparable and proportional to the values she is sacrificing by not marrying. The rest can be inferred, and (to my eye) directly observed.

I would like to see a study of the average cost of first-date-through-marriage courtship in a country which bans prostitution versus one which allows it (e.g. Netherlands). If I'm right, the total cost will be noticeably lower in places where prostitution lowers the value of the sex she bargains with.

Re:upcoming video game titles based on this ruling

[NTiOzymandias]

I know nobody will ever read this post but I still gotta point out, we already have a weird modern rendition of Dante's Inferno on our hands.

What is art?

[Pfhorrest]

More likely, the judge is taking the position that the First Amendment does not allow banning material on the basis of "obscenity" unless the three prongs of the Miller test are satisfied, particularly the third prong: "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

As defined by whom? Why would something like God of War fall under that categorization, while something like Pirates (the porn film; don't worry, the link is to the wiki article about it) would not? Both are set in pseudo-historical or pseudo-mythological settings, and both are primarily interesting for their violent and sexual content, respectively, with the setting being just that - an interesting setting for the violence or sexuality to take place in. Yet the latter is very clearly considered (my those whose opinion matters in court) "obscene", and the former is apparently some sort of work of art. What's the difference - and more importantly, to whom are we entrusting the power to determine what it culturally valuable or not? Doesn't the fact that someone wants to acquire such works mean that they have value to someone? Just what is "literary" or "artistic" value, beyond simply being a piece of media that someone finds interesting and worth experiencing?

Re:Ummm...

[sg_oneill]

Well, thats assuming the good bard(s) who translated the King James didnt translate "cornhole" to "knew".