Court issues injunction against Chicago Transit Authority

CTA cannot enforce ban on violent video game advertisements, judge says.

By Jamie Loo, First Amendment reporter

January 8, 2010

CHICAGO—A district court judge has issued an order prohibiting the Chicago Transit Authority from banning violent computer and video game advertisements.

The preliminary injunction blocks the CTA from enforcing its ordinance pending trial. The ordinance, which bans advertisements for games that are rated as “M” for “Mature 17+” and “AO” for “adults only 18+”by the Entertainment Software Ratings Board, took effect in January 2009. It was challenged in court on First and Fourteenth Amendment grounds by the Entertainment Software Association (ESA), an industry trade group.

U.S. District Court for the Northern District of Illinois Eastern Division Judge Rebecca R. Pallmeyer found that the CTA’s ordinance is unlikely to survive strict scrutiny in court.

In her decision issued on Thursday, Pallmeyer affirmed that the CTA is a public forum and continues to open its advertising space to the vast majority of the public that can pay the advertising fee. These ads include “potentially controversial commercial, public-service, public issue, and political ads.” The court found that children are exposed to media violence regularly and that video games comprise a tiny fraction of that. Pallmeyer noted that identical advertisements for an R-rated film and M-rated video game with the same characters and story line would be treated differently under ordinance even though the content is the same.

“The CTA offers no defensible distinction that supports the singling out advertisements for some forms of violent expression but not the others,” according to the decision.

Pallmeyer also cited a few decisions from the Seventh Circuit U.S. Court of Appeals including one that suggests “video games themselves are constitutionally protected speech.” The Seventh Circuit struck down an Illinois law that attempted to ban the sale of violent and sexually explicit videos games to children under age 18. Similar laws in Michigan., Louisiana and Minnesota were also found unconstitutional by courts. Although those cases are not focused on advertisements Pallmeyer wrote that “they nevertheless suggest that the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.”

The ESA filed its case last July and argued that the ordinance unconstitutionally restricted “speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” The CTA allows advertisements for books, magazines, movie and television shows that have similar ratings and content, according to court documents.

“The ruling is a win for Chicago’s citizens, the video game industry and, above all, the First Amendment,” said Michael D. Gallagher, president and CEO of the ESA. “It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources. Chicago deserves better and we look forward to bringing this matter to an end.”

In its case, the CTA cited the correlation between video game violence and youth violence as its reasoning for the ordinance. The ordinance states that the CTA “has a substantial interest in ensuring that its assets and resources are not used to advertise violent video or computer games which may foster or encourage violent or aggressive behavior.”

The court found the ordinance “overbroad, ineffectual and not narrowly tailored” to achieve the CTA’s goal of protecting the welfare of young riders. The decision also noted that there is “insufficient evidence connecting real violence with violent games to justify restrictions on expression.”

The CTA said in an official statement that they disagree with the preliminary injunction against enforcement of the ordinance.

“The CTA is currently reviewing the court’s analysis as well as its options for moving forward,” the statement said.

This was not the first time the ESA and CTA have met in court. Prior to the ordinance’s enactment, the ESA took the CTA to court for breach of contract and First Amendment violations for removing their ads for Grand Theft Auto IV. The CTA removed the ads after a media report questioned why they were allowed after a wave of youth violence in Chicago. In a settlement, the CTA agreed to allow a replacement ad campaign in November and December 2008.