Seventh Circuit: explicit video game law unconstitutional

Ban of sale to minors and labeling requirements not narrowly tailored to meet compelling state interest.

In August 2005, the Illinois State Legislature enacted the Sexually Explicit Video Game Law (“SEVGL”), which criminalized the sale of “sexually explicit” video games to minors, and required purveyors of such games to conspicuously label any sexually explicit game with a four square inch label reading “18”, and provide relevant signage within the stores where games are sold.

The Entertainment Software Association, among others, filed suit against the State of Illinois the day after the SEVGL was enacted, claiming that the law violated the First Amendment. The district court permanently enjoined enforcement of the law, and the State of Illinois sought review. On appeal, the Seventh Circuit affirmed the lower court’s holding that the statue was not narrowly tailored.

An integral part of the court’s analysis was its concern that the statute would criminalize the sale of material “without concern for the game considered in its entirety or for the game’s social value for minors.” As a case in point, the court looked to the game God of War, which tracks the Homeric epic Odyssey in content and theme. Although that game shows exposed breasts, the court held that “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.”

As for the unconsitutionality of the labeling and signage requirement, the court similarly held that such a requirement was not narrowly tailored. The government had not shown that an educational campaign about the video game rating system would not have been just as effective as labeling. The requirement of a sticker that covers a substantial portion of the box was also unjustified.

Entertainment Software Association v. Blagojevich, No. 06-1012, — F.3d —-, (7th Cir., November 27, 2006).