Video game ad ban dropped

CTA cannot enforce rule on violent video game advertising.

By Jamie Loo, First Amendment reporter

June 4, 2010

CHICAGO—Violent video game advertisements cannot be banned by the Chicago Transit Authority, according to a court-approved settlement.

The CTA and the Entertainment Software Association (ESA) have settled their court dispute over CTA Ordinance 008-147 which banned advertisements for games that are rated as “M” for “Mature 17+” and “AO” for “adults only 18+”by the Entertainment Software Ratings Board. A press statement from the CTA said that both parties “worked together to reach a reasonable resolution to the lawsuit.”

“The parties agreed to ask the court to end the lawsuit by entering an order that permanently enjoins the CTA from enforcing the ordinance,” the statement said.

The ESA, an industry trade group, challenged the ordinance on First and Fourteenth Amendment grounds after it took effect in January 2009. The court issued an injunction prohibiting the CTA from enforcing the ordinance last summer pending a trial.

Along with permanently barring the transit authority from enforcing the ban, the CTA has agreed not to appeal the case and the ESA is entitled to collect attorney’s fees and costs related to the case.

“Computer and video games have the same First Amendment protections as film, books, and other forms of artistic expression. We will continue to ensure the rights of our industry’s computer and video game storytellers and innovators are defended,” said ESA president and CEO Michael D. Gallagher, in a press statement. “We are pleased that the CTA chose not to pursue this further and waste valuable resources on this matter. It is our hope that other transit authorities will heed this ruling when determining whether to restrict advertisements.”

Regulations on the advertising, labeling, and sales of violent video games has been debated in state legislatures and in courtrooms for years. Advocates for restrictions argue that exposing minors to violent video games is harmful, causing psychological damage and in some cases could lead to violent behavior. But others say that video games themselves are constitutionally protected speech and any regulations violate the First Amendment by discriminating against a particular viewpoint.

The U.S. Supreme Court recently agreed to take on a violent video game case in Schwarzenegger v. Entertainment Merchants Association. The case is based on a proposed California law which would have prohibited the sale or rental of violent video games to anyone under 18. It would’ve also required special labeling for the games. The law did not take effect because it was challenged in court shortly after it was signed. The 9th U.S. Circuit Court of Appeals found that the law violated the First and Fourteenth amendment rights of minors. In the court’s decision, Judge Consuelo M. Callahan wrote that the state’s argument that it was protecting minors from actual psychological or neurological harm is not enough to justify restricting this form of speech. Callahan also cited a passage from the Supreme Court case Erznoznik v. City of Jacksonville, which said that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”

The Supreme Court is hearing this case in the fall.

First Amendment forums

U.S. District Court Northern District of Illinois Judge Rebecca R. Pallmeyer issued a memorandum opinion and order in the Entertainment Software Association v. Chicago Transit Authority case in January, which continued an earlier injunction on the ordinance pending a trial. One of the constitutional issues Pallmeyer addressed in her opinion involves public forum and non-public forums for speech. The government’s authority to limit expression depends on the type of forum the speech is presented in. The First Amendment recognizes three types of forums:

Traditional public forum—Places such as streets or parks that are used by the public and have been used for expressive purposes.

Designated public forum—A forum that is owned by the state and voluntarily opened for expressive activity for certain groups or topics. The government may adopt reasonable restrictions for who can use this forum. Examples of designated public forums include school board meeting rooms and university meeting facilities.

Non-public forum—Public property that has not been designated or traditionally served as a forum for expression such as military bases and jails. These forums can be restricted based on content but not viewpoint.

The U.S. Supreme Court has ruled that advertising space on a public transportation system is not a traditional public forum. A 7th U.S. Circuit Court of Appeals case involving the CTA and advertising specifically found that the CTA is a designated public forum. Pallmeyer said the CTA appears to offer “its advertising space to any member of the public that can pay the advertising fee” and hasn’t shown that it is selectively allowing access.

“Instead, the court finds it is more likely that advertisements for mature video games were singled out from an otherwise inclusive forum because they promote a product that the CTA ‘disliked or otherwise wishes to exclude on account of its effects,’” Pallmeyer wrote.

To read the full memorandum opinion click here.

Schwarzenegger v. Entertainment Merchants Association

The U.S. Supreme Court is hearing arguments in Schwarzenegger v. Entertainment Merchants Association this fall. The case is based on a California law which would have prohibited the sale or rental of violent video games to anyone under 18. A lower court found the law to be unconstitutional. To read the full 9th U.S. District Court of Appeals decision click here.