Entertainment Software Association v. Swanson

519 F.3d 768 (8th Cir. 2008), aff’g sub nom. Entm’t Software Ass’n v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006)

Summary: This case is a successful challenge to a Minnesota law barring minors from buying or renting “M” or “AO” rated video games.

History: On May 31, 2006, Governor Pawlenty signed Senate Bill 785 into law. The law would have restricted the sale or rental of games rated “M” or “AO” by the ESRB to anyone under 17 and—in contrast to other state video games bans—would have imposed a $25 fine on any minor purchasing or renting a restricted game. It would have also required retailers to post signs explaining the restriction.

On June 6, the Entertainment Software Association, joined by the Entertainment Merchants Association, filed a complaint in U.S. District Court in Minneapolis. The court heard oral argument on July 11, 2006, and Judge Rosenbaum permanently enjoined the law on July 31, 2006. In his decision, the judge wrote, “There is a paucity of evidence linking the availability of video games with any harm to Minnesota’s children at all.” The court also found it unconstitutional to delegate power to the ESRB’s private rating system and found that the signage requirement was compelled speech.

Minnesota appealed the district court to the 8th Circuit Court of Appeals. On October 27, Minnesota submitted its reply brief in its appeal of the district court’s preliminary injunction to the Eight Circuit Court of Appeals. On November 29, Media Coalition members submitted an amicus brief. The brief argued that video games, even those with violent content, are protected by the First Amendment. Additionally, the brief argued that First Amendment-protected materials may not be restricted based on an emotional or psychological impact. In addressing the ratings system enforcement provision of the Minnesota law, the brief argued that the state may not delegate legislative power to a private ratings system, and, even if it could, the definitions in the ESRB’s ratings system are unconstitutionally vague.

Oral argument was heard February 12, 2007 before Judges Wollman, Smith and Benton of the Eighth Circuit Court of Appeals. On March 17, 2008, the judges upheld the lower court’s decision. The state of Minnesota filed a petition for rehearing en banc on March 28.

On May 7, 2008, the Eighth Circuit Court of Appeals issued an order denying Minnesota’s motion for rehearing en banc.

On June 30, 2008, the state of Minnesota paid $65,000 in attorney fees and expenses incurred as a result of the Entertainment Software Association’s successful challenge to Minnesota’s unconstitutional video game law.

Some Media Coalition members were plaintiffs, and others filed an amicus brief in this case.