NEWS - Thursday, June 5, 2003

Coalition Challenges Video Game Ban

Industry Coalition Files Complaint Challenging Washington State Video Game Bill The Interactive Digital Software Association (IDSA) joined leading retail and game development groups in filing a lawsuit in the U.S. District Court of Seattle, Wash., challenging the constitutionality of a recently enacted Washington state statute (Washington state HB1009) seeking to ban the sale to minors of certain video games. "Earlier this week, the Eighth Circuit Court of Appeals unanimously and resoundingly ruled that video games are a constitutionally protected form of expression with the same First Amendment status as art, books, film, and music," said Douglas Lowenstein, president of the IDSA. "Based on this decision, and a similar one issued by the Seventh Circuit Court of Appeals in 2001, we believe the Washington statute will be struck down as well." The IDSA joined the lawsuit with co-plaintiffs the Washington Retail Association, the Video Software Dealers Association (VSDA), the Interactive Entertainment Merchants Association (IEMA), the International Game Developers Association (IGDA), and Hollywood Video. "While we share the state's objective to restrict the ability of children to purchase games that might not be appropriate for them, we passionately oppose efforts to achieve this goal by running roughshod over the constitutional rights of video game publishers, developers and retailers to make and sell games that depict images some find objectionable," said Lowenstein. "We believe a combination of voluntary enforcement at retail and consumer education about video game ratings is vastly preferable." The lawsuit argues that the Washington statute is a content-based restriction on the dissemination of fully protected expression. The lawsuit also points out that the legislation targets only games with depictions of violence to "public law enforcement officer(s)" yet there is no definition of the term. "Does it cover plain clothes police, does it cover corrupt police, does it cover a Gestapo agent, a futuristic policeman, or even a game where police cars crash when players throw bananas at them? The law's definitions and terms are unconstitutionally vague, making it impossible for developers and publishers to know what depictions will run afoul of it, and for retailers to know what games they can and cannot sell," said Lowenstein. "VSDA wishes that the legislature and the governor had stood up for the First Amendment and rejected this law when they had the chance," VSDA President Bo Andersen said. "Unfortunately, they chose censorship instead of free speech, and now we must petition the courts to protect the First Amendment rights of retailers to offer and their customers to rent and buy the video games of the customer's choice. We are confident that the courts will vindicate those rights." "Game developers take their creative responsibilities very seriously," stated Jason Della Rocca, program director of the IGDA. "As video games emerge as the art form of the 21st century, developers need the freedom to explore and express all aspects of the human condition. Having state-enforced regulation would stifle creativity --and consumer choice -- to a point that would simply not be accepted in other forms of art and entertainment." Computer and video games are rated by the Entertainment Software Rating Board (ESRB) with both age-appropriateness ratings and content descriptors on each box. The ESRB system has been called a model for other industries by Senator Joseph Lieberman (D-CT). The industry has been proactively working with retailers to improve ratings enforcement at the point-of-sale and to increase parental awareness of the rating system. According to the U.S. Federal Trade Commission, parents are involved in the purchase of games 83 percent of the time. "IEMA has worked to educate parents about the ESRB rating system so they may make appropriate entertainment choices on behalf of their children," said Hal Halpin, president of the Interactive Entertainment Merchants Association. "Further, the majority of IEMA members have voluntarily begun restricting the sale of M-rated product to minors. But we oppose this law both because it violates our consumer's First Amendment rights, and it is unenforceable and impossibly vague. Retailers cannot and should not be made to be the content police, and we are confident that the court will agree." Concluded Lowenstein: "If the state really wants to keep content they feel is inappropriate out of children's hands, they should redirect the time and money they've put behind this legislation into helping us further the work we are doing to implement voluntary enforcement measures at retail and enhance parental awareness and use of the ESRB ratings. We believe Washington families would be far better served by these efforts than by laws that seek to turn retailers into surrogate parents." The plaintiffs are represented by Paul M. Smith and Deanne E. Maynard of Jenner & Block in Washington, D.C., and David J. Burman of Perkins Coie in Seattle, Wash. The IDSA is the U.S. association dedicated to serving the business and public affairs needs of the companies publishing interactive games for video game consoles, handheld devices, personal computers, and the Internet. IDSA members collectively account for more than 90 percent of the $6.9 billion in entertainment software sales in the U.S. in 2002, and billions more in export sales of American-made entertainment software. The IDSA offers services to interactive entertainment software publishers including a global anti-piracy program, owning the Electronic Entertainment Expo trade show, business and consumer research, government relations and First Amendment and intellectual property protection efforts. For more information, please visit

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