Entertainment Software Association v. Blagojevich

469 F.3d 641 (7th Cir. 2006), aff’g 404 F. Supp. 2d 1051 (N.D. Ill. 2005)

Summary:  This case was a challenge to an Illinois ban of the sale of video games with video content to minors.

History: The Entertainment Software Association (ESA) and Video Software Dealers Association (VSDA) filed a challenge on July 25, 2005, in U.S. District Court, seeking to enjoin enforcement of Illinois House Bill 4023, a bill limiting the sale and rental of computer and video games.  Under the law, covered games would have been labeled as restricted to persons age 18 or older.  The law also directed every Illinois video game retailer to post in its store signs informing customers about the ESRB rating system everywhere games are displayed, at the points of sale, and at information desks.  The law also dictated the minimum dimensions of the signs and their type, size, and color.  Violations of the act would have been classified as criminal offenses.

Governor Blagojevich filed a response to the plaintiffs’ motion for preliminary injunction on October 7.  On October 17, the plaintiffs filed a reply brief.  This case is a challenge to an Illinois law banning the sale of games with violent content to minors.

On December 2, 2005, U.S. District Court Judge Matthew Kennelly ruled that the law was unconstitutional and issued an order permanently enjoining enforcement.  The law had been set to go into effect on January 1, 2006.  Legal fees for plaintiffs were granted for this portion of the case on August 9, 2006.

In January of ’06, the Illinois Attorney General appealed to the Seventh Circuit Court of Appeals the part of U.S. District Court Judge Matthew Kennelly’s order granting a permanent injunction that bars enforcement of the law banning the sale of video games with certain sexual content.  Media Coalition filed an amicus brief to the Seventh Circuit Court of Appeals on April 7, 2006.

On November 27, 2006, the Seventh Circuit Court of Appeals issued a decision affirming the trial judge’s holding that the law violates the First Amendment.  The Court held that the statute failed because it lacked of the third prong of the Miller/Ginsberg test and the requirement that the material must be “taken as a whole,” also a part of the Miller/Ginsberg test.  The Court held that there are less restrictive means than banning the sale of the games, and also held that the labeling, brochure, and signage requirements were unduly burdensome and, in some cases, compelled speech.

Plaintiffs included the Entertainment Software Association, the Video Software Dealers Association, and the Illinois Retail Merchants Association.