The U.S. Court of Appeals for the Seventh Circuit recently invalidated an Illinois state law that sought to criminalize the sale or rental of sexually explicit video games to minors. Entertainment Software Ass’n v. Blagojevich.

In July 2005, the state of Illinois enacted the Sexually Explicit Video Game Law. The law required video game retailers to place four-square-inch labels with the number “18” on sexually explicit video games and to place signs in their stores and provide customers with brochures explaining the law’s video game rating system. Most importantly, the statute imposed criminal penalties on any person who sold or rented sexually explicit video games to minors. The law contained a definition of the term “sexually explicit” that was supposed to guide enforcement of the statute.

The day after the law was enacted, some associations representing video game manufacturers and retailers filed suit in federal court in Chicago, claiming that the statute was unconstitutional. The trial court agreed, and struck down the law. On appeal, the Seventh Circuit affirmed the lower court’s decision.

The Seventh Circuit focused on the statute’s criminalization of the sale and distribution of sexually explicit material. The Court initially noted that because this regulation targeted the content of speech (i.e., the law defined and restricted the dissemination of what Illinois considered “sexually explicit” material), the statute had to survive a very strict test to be constitutional. Under that test, a statute is constitutional only if it is narrowly tailored and promotes a compelling governmental interest.

Drawing from relatively recent U.S. Supreme Court precedent, the Seventh Circuit found that the stated purpose for the law – to shield children from indecent material – was clearly a compelling interest.

Nevertheless, the Court concluded that the statute was unconstitutional because it was not narrowly tailored. The law defined “sexually explicit” video games as those designed to appeal to the prurient interest and that depict in a patently offensive manner an actual or simulated sexual act or contact, or a lewd exhibition of genitals or breasts. This overbroad definition, explained the Seventh Circuit, ignored well-established Supreme Court precedent setting forth minimum standards for narrowly tailoring obscenity laws. Specifically, the statute’s definition failed to account for the fact that even patently offensive material containing nudity that appeals to a prurient interest is not obscene if such material, taken as a whole, has social importance.

To illustrate the statute's breadth, the Seventh Circuit applied it to one of the plaintiffs’ video games, titled God of War, which follows Homer’s epics and thus, taken as a whole, possesses social importance. Yet because God of War contains a scene showing a woman’s breasts, it likely would fall within the statute’s definition of “sexually explicit” and subject to liability those who sell or rent the game to minors. Such a result would conflict with Supreme Court precedent.

The Seventh Circuit also found that the statute was not narrowly tailored because there were less restrictive alternatives to criminalizing the targeted material, such as legislation that sought to increase parental awareness of ratings systems.

On the issue of the statute’s labeling, brochure, and signage provisions, the Seventh Circuit readily dismissed these as unconstitutional as well. These provisions, which forced purveyors of video games to make subjective statements about what constitutes sexually explicit material, did not survive the strict test of serving a compelling interest and being narrowly tailored. Rather than require stickers and signs, reasoned the Court, the State could have launched an educational campaign about the rating system. The Seventh Circuit also noted that the signs endorsed the message of the Entertainment Software Rating Board, a nongovernmental third party, and that the Supreme Court had already rejected as unconstitutional a requirement that retailers make substantial space for the Board’s endorsement.

Ultimately, the Seventh Circuit’s opinion is not surprising. It reflects the almost uniform approach of courts to strike down state laws that attempt to restrict speech embodied in video games marketed to minors.