Constitutionality of Proposals to Prohibit the Sale or Rental to Minors of Video Games with Violent or Sexual Content or "Strong Language"









Prepared for Members and Committees of Congress



It has been proposed that Congress prohibit the sale or rental to minors of video games that are
rated “M” (mature) or “AO” (adults-only) by the Entertainment Software Ratings Board. This
board is a non-governmental entity established by the Interactive Digital Software Association,
and its ratings currently have no legal effect. The Board’s website sets forth the criteria for its
“M” and “AO” ratings:
Titles rated M (Mature) have content that may be suitable for persons ages 17 and older.
Titles in this category may contain intense violence, blood and gore, sexual content, and/or
strong language.
Titles rated AO (Adults Only) have content that should only be played by persons 18 years
and older. Titles in this category may include prolonged scenes of intense violence and/or
graphic sexual content and nudity.
The Supreme Court has never ruled on the constitutionality of a statute that restricted minors’
access to violent or sexually oriented video games, but all nine lower federal courts that have
ruled on such a statute have found it unconstitutional. Based on the holdings of these courts, it
appears that, for a prohibition of the sale or rental to minors of video games with violent content
to be upheld, the government would have to present empirical evidence that these games harm
minors or cause them to become violent. The prohibition of the sale or rental to minors of video
games containing sexual content, however, would seem more likely to be upheld without
empirical evidence that such games harm minors.
Nevertheless, the apparent vagueness and broad scope of the current criteria for “M” and “AO”
ratings might cause a statutory prohibition on the sale or rental to minors of video games that
incorporates those ratings to be found unconstitutional on its face, even if the sale or rental to
minors of some of the video games to which the “M” or “AO” rating apply could constitutionally
be prohibited by more narrowly tailored legislation.






Introduc tion ............................................................................................................................... 1
First Amendment Principles......................................................................................................1
Violent and sexual material.................................................................................................2
Overbreadth .................................................................................................................... .... 3
Violent Video Game Decisions.................................................................................................4
Sexually Explicit Video Games Decision.................................................................................7
Application of the Decisions to the Proposal............................................................................8
Violent content....................................................................................................................8
Sexual content...................................................................................................................10
Application to “M”- and “AO”-rated video games...........................................................10
Conclusion ............................................................................................................................... 11
Author Contact Information...........................................................................................................11





It has been proposed that Congress prohibit the sale or rental to minors of video games that are
rated “M” (mature) or “AO” (adults-only) by the Entertainment Software Ratings Board. This
board is a non-governmental entity established by the Interactive Digital Software Association,
and its ratings currently have no legal effect. The Board’s website sets forth the criteria for its
“M” and “AO” ratings:
Titles rated M (Mature) have content that may be suitable for persons ages 17 and older.
Titles in this category may contain intense violence, blood and gore, sexual content, and/or
strong language.
Titles rated AO (Adults Only) have content that should only be played by persons 18 years
and older. Titles in this category may include prolonged scenes of intense violence and/or 1
graphic sexual content and nudity.
The primary constitutional issue that a proposal to prohibit the sale or rental to minors of video
games with “M” or “AO” ratings raises is whether it would violate the First Amendment’s
guarantee of freedom of speech. If it would not violate the First Amendment, then it would
constitute a valid regulation of interstate commerce within Congress’s power to enact under the 2
Commerce Clause. Congress would also apparently have the power to delegate the promulgation
of video game standards to a private entity, as the Supreme Court has upheld Congress’s power to 3
delegate regulatory power to private entities in other contexts.
The First Amendment provides that “Congress shall make no law ... abridging the freedom of
speech,” but the Supreme Court allows various exceptions to this prohibition. Obscenity, for
example, is not protected by the First Amendment, but most sexually oriented material has not 4
been judged to be obscene and is protected by the First Amendment. Even a statute that restricts
protected speech on the basis of its content may be constitutional, but the Supreme Court
generally will uphold such a statute only if it passes “strict scrutiny.” This means that, to be found
constitutional, the statute must be necessary “to promote a compelling interest” and be “the least 5
restrictive means to further the articulated interest.” The Supreme Court has “recognized that
there is a compelling interest in protecting the physical and psychological well-being of minors.

1 http://www.esrb.org/esrbratings_guide.asp (bold in original). We will refer to “minors” throughout this report, as it
seems unlikely that it would make a difference from a constitutional standpoint whether a proposal applied to 17- or
18-year olds.
2The Congress shall have Power... To regulate Commerce... among the several States....” Art. I, § 8, cl. 3.
3 See, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION (2002), at 88-90;
http://www.crs.gov/products/conan/Article01/ topic_S1_4_4_2.html.
4 The Supreme Court has created a three-part test, known as the Miller test, to determine whether a work is obscene.
The Miller test asks: “(a) whetherthe average person applying contemporary community standards would find that
the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently
offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a
whole, lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15, 24 (1973) (citations
omitted). See, CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal Statutes, by Henry
Cohen.
5 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1989).





This interest extends to shielding minors from the influence of literature that is not obscene by 6
adult standards.”
By “literature that is not obscene by adult standards,” the Court was referring to “[s]exual 7
expression which is indecent but not obscene.” It was not referring to material with violent
content, and the courts tend to treat restrictions on sexual material differently from restrictions on
violent and other non-sexual material. With respect to non-sexual material, the Supreme Court
requires that, “[w]hen the Government defends a regulation on speech as a means to redress past
harms or prevent anticipated harms, it must ... demonstrate that the recited harms are real, not
merely conjectural, and that the regulation will in fact alleviate these harms in a direct and 8
material way.” This is true even with respect to governmental restrictions on speech to which,
unlike “indecent” speech, the Supreme Court accords less than full First Amendment protection 9
and therefore applies less than strict scrutiny.
With respect to sexually explicit material, by contrast, the courts generally assume, without 10
requiring evidence, that it is harmful to minors, or to consider it “obscene as to minors,” even if
it is not obscene as to adults. They therefore find it not entitled to First Amendment protection
with respect to minors, whether it is harmful to them or not. Considering the constitutionality of a
federal statute that required cable television operators to prevent “signal bleed” to customers who
had not subscribed to channels primarily dedicated to sexually oriented programming, a federal
district court wrote:
We are troubled by the absence of evidence of harm presented both before Congress and
before us that the viewing of signal bleed of sexually explicit programming causes harm to
children and that the avoidance of this harm can be recognized as a compelling State interest.
We recognize that the Supreme Court’s jurisprudence does not require empirical evidence.
Only some minimal amount of evidence is required when sexually explicit programming and 11
children are involved.
The court therefore found that the statute served a compelling governmental interest. It held the
statute unconstitutional, however, because it found that it did not constitute the least restrictive
means to advance the interest. The Supreme Court affirmed on the same ground, apparently
assuming the existence of a compelling governmental interest, but agreeing that a less restrictive
means could have been used.
In another case, a federal court of appeals, upholding the statute that bans “indecent” radio and
television broadcasts from 6 a.m. to 10 p.m., noted “that the Supreme Court has recognized that

6 Id.
7 Id.
8 Turner Broadcasting System v. Federal Communications Commission, 512 U.S. 622, 664 (1994) (incidental
restriction on speech).
9 Id. See also, Edenfield v. Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial speech); Nixon v. Shrink
Missouri Government PAC, 528 U.S. 377, 392 (2000) (restriction on campaign contributions).
10 Interactive Digital Software Association v. St. Louis County, Missouri, 329 F.3d 954, 959 (8th Cir. 2003); citing
Ginsberg v. New York, 390 U.S. 629 (1968).
11 Playboy Entertainment Group, Inc. v. United States, 30 F. Supp. 2d 702, 716 (D. Del. 1998); aff’d, 529 U.S. 803
(2000).





the Government’s interest in protecting children extends beyond shielding them from physical
and psychological harm. The statute that the Court found constitutional in Ginsberg sought to
protect children from exposure to materials that would ‘impair[ ] [their] ethical and moral
development.... Congress does not need the testimony of psychiatrists and social scientists in
order to take note of the coarsening of impressionable minds that can result from a persistent 12
exposure to sexually explicit material....” A dissenting judge in the case noted that, “[t]here is
not one iota of evidence in the record ... to support the claim that exposure to indecency is 13
harmful—indeed, the nature of the alleged ‘harm’ is never explained.”
Despite the above rulings, it has been noted that—
The Court seems to be becoming less absolute in viewing the protection of all minors
(regardless of age) from all indecent material (regardless of its educational value and parental
approval) to be a compelling governmental interest. In striking down the Communications
Decency Act of 1996, the Court would “neither accept nor reject the Government’s
submission that the First Amendment does not forbid a blanket prohibition on all indecent
and ‘patently offensive messages communicated to a 17-year-old—no matter how much
value the message may have and regardless of parental approval. It is at least clear that the
strength of the Government’s interest in protecting minors is not equally strong throughout
the coverage of this broad statute.” Reno v. American Civil Liberties Union, 521 U.S. 844,
878 (1997). In Playboy Entertainment Group, 529 U.S. at 825, the Court wrote: Even upon
the assumption that the Government has an interest in substituting itself for informed and
empowered parents, its interest is not sufficiently compelling to justify this widespread
restriction on speech.” The Court also would not discount the possibility that a graphic
image could have a negative impact on a young child” (id. at 826), thereby suggesting again 14
that it may take age into account when applying strict scrutiny.
The Supreme Court has written:
The First Amendment doctrine of substantial overbreadth is an exception to the general rule
that a person to whom a statute may be constitutionally applied cannot challenge the statute
on the ground that it may be unconstitutionally applied to others. The doctrine is predicated
on the danger that an overly broad statute, if left in place, may cause persons whose
expression is constitutionally protected to refrain from exercising their rights for fear of
criminal sanctions. Overbreadth doctrine has wide-ranging effects, for a statute found to be 15
substantially overbroad is subject to facial invalidation.

12 Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654, 662 (D.C. Cir. 1995) (en
banc), cert. denied, 516 U.S. 1043 (1996) (brackets and italics supplied by the court). Ginsberg, supra footnote 10,
infra footnote 41, upheld a New York statute that prohibited the sale to minors of what the Court called “girlie picture
magazines. 390 U.S. at 634.
13 Id. at 671 (D.C. Cir. 1995) (Edwards, C.J., dissenting).
14 See, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION (2004), at 1233, n.1146
(n.1174 in the Web version at http://www.crs.gov/products/conan/Amendment01/topic_3_12_12.html).
15 Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). The same reasoning would seem to apply if a speech restriction
imposed only civil sanctions, as civil as well as criminal penalties can chill speech, as the court of appeals noted in th
Federal Election Commission v. Lance, 635 F.2d 1132, 1141 (5 Cir. 1981) (It is reasonable to suppose that even if
section 441b were overbroad it would not have a ‘chilling effect’ substantial enough to justify invoking the overbreadth
exception to the standing rule, since no one need risk criminal or civil penalties to test the statutes constitutionality.”).





What this means in the present context is that, if a retailer affected by the proposal under
consideration were to challenge it as violating the First Amendment, then it would not matter
whether the sale or rental to minors of a particular video game by that retailer could
constitutionally be proscribed. Even if the sale or rental to minors of that particular video game
could constitutionally be proscribed, the court would strike down the law on its face if it applied
to a substantial number of other video games whose sale to minors could not constitutionally be
proscribed. Put another way, the overbreadth doctrine renders a statute “invalid in all its 16
applications (i.e., facially invalid) if it is invalid in any of them.”
The Supreme Court has never ruled on the constitutionality of a statute that restricted minors’
access to violent video games, but every lower federal court—two courts of appeals and seven
district courts—that has ruled on such law has found it unconstitutional and issued an injunction 17
against its enforcement.
Two federal courts of appeals (the Seventh and Eighth Circuits) have considered the
constitutionality of local ordinances (Indianapolis’ and St. Louis County’s, respectively)
prohibiting making violent video games accessible to minors, and both refused to treat violent 18
material like sexual material or to find it “obscene as to minors.” Both courts, rather, held the
ordinances unconstitutional on the ground that the government had failed to present adequate
evidence that violent video games are harmful to minors.
What sort of evidence would be adequate to persuade a court that there was a compelling interest
in denying minors access to violent video games? In the St. Louis County case, the Eighth Circuit
held:
Before the County may constitutionally restrict the speech at issue here, the County must
come forward with empirical support for its belief that “violentvideo games cause
psychological harm to minors. In this case, as we have already explained, the County has
failed to present the substantial supporting evidence” of harm required before an ordinance
that threatens protected speech can be upheld. We note, moreover ... that the County may not
simply surmise that it is serving a compelling state interest becausesociety in general
believes that continued exposure to violence can be harmful to children.” Where first

16 Ada, Governor of Guam v. Guam Society of Obstetricians & Gynecologists, 506 U.S. 1011, 1012 (Scalia, J,
dissenting to denial of certioriari). This is apparently an overstatement, in that the doctrine, as noted above, is one of
substantial overbreadth. The Supreme Court has “insisted that a laws application to protected speech be substantial ...
before applying thestrong medicine of overbreadth invalidation.” Virginia v. Hicks, 539 U.S. 113, 119-120 (2003)
(citation omitted).
17 In every case but the Seventh Circuits and the Oklahoma district courts, the court issued a permanent injunction. In
the Seventh Circuit case, the court found the plaintiffs entitled to a preliminary injunction because they showed “a
strong likelihood of ultimate victory should the City persist with the case. American Amusement Machine Association th
v. Kendrick, 244 F.3d 572, 580 (7 Cir. 2001), cert. denied, 534 U.S. 994 (2001). There is no subsequent reported
decision in the case. The Oklahoma federal court found the plaintiffs entitled to a preliminary injunction because they
are substantially likely to prevail in this case ... .” Entertainment Merchants Association v. Henry, CIV-06-675-C
(W.D. Okla., October 11, 2006).
18 American Amusement Machine Association, supra footnote 17; Interactive Digital Software Association, supra
footnote 10. The St. Louis “ordinance also restricts minors’ access to video games with strong sexual content, but
plaintiffs do not challenge those provisions of the ordinance. Interactive Digital Software Association, supra, 329 F.3d
at 956 n.1.





amendment rights are at stake, “the Government must present more than anecdote and 19
supposition.
St. Louis County also asserted that it has a compelling interest in “assisting parents to be the
guardians of their children’s well-being.” As to this the Eighth Circuit said that in no case “does
the Supreme Court suggest that the government’s role in helping parents to be the guardians of
their children’s well-being is an unbridled license to governments to regulate what minors read 20
and view.”
In the Indianapolis case, Judge Richard Posner, holding for the Seventh Circuit that a preliminary
injunction against enforcement of the Indianapolis ordinance was warranted, wrote:
The City rightly does not rest on “what everyone knows” about the harm inflicted by violent
video games. These games with their cartoon characters and stylized mayhem are continuous
with an age-old children’s literature on violent themes.... The City instead appeals to social
science to establish that games such as “The House of the Dead” and “Ultimate Mortal
Kombat 3, games culturally isomorphic with (and often derivative from) movies aimed at
the same under 18 crowd, are dangerous to public safety. The social science evidence on
which the City relies consists primarily of the pair of psychological studies that we
mentioned earlier.... These studies do not support the ordinance. There is no indication that
the games used in the studies are similar to those in the record of this case or to other games
likely to be marketed in game arcades in Indianapolis. The studies do not find that video
games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or
have caused the average level of violence to increase anywhere. And they do not suggest that
it is the interactive character of the games, as opposed to the violence of the images in them,
that is the cause of the aggressive feelings. The studies thus are not evidence that violent
video games are any more harmful to the consumer or to the public safety than violent 21
movies or other violent, but passive entertainments.
Seven federal district courts—in Washington, Illinois, Michigan, Minnesota, Oklahoma,
Louisiana, and California—have also struck down statutes that denied minors access to violent
video games. We discuss these seven cases in the order in which they were decided.
In 2004, a district court struck down a statute enacted by the state of Washington, finding that
“there has been no showing that exposure to video games that ‘trivialize violence against law 22
enforcement officers’ is likely to lead to actual violence against such officers.”
In 2005, a district court struck down an Illinois statute that prohibited both violent and sexually
explicit video games, finding, with respect to the prohibition of violent video games, that
“defendants have failed to present substantial evidence showing that playing violent video games 23
causes minors to have aggressive feelings or engage in aggressive behavior.”

19 Interactive Digital Software Association, supra footnote 10, 329 F.3d at 959 (citations omitted).
20 Id. at 959-960.
21 American Amusement Machine Association, supra footnote 17, 244 F.3d at 578-579 (emphasis in original). Judge
Posner also cited great literature with graphic descriptions of violence, including the Odyssey, The Divine Comedy, and
War and Peace, as well as “the classic fairy tales collected by Grimm, Andersen, and Perrault,” and commented: “To
shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic,
but deforming; it would leave them unequipped to cope with the world as we know it.” Id. at 577.
22 Video Software Dealers Association v. Maleng, 325 F. Supp. 2d 1180, 1188 (W.D. Wash. 2004).
23 Entertainment Software Association v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005), aff’d, 469 F.3d 641 (7th
(continued...)





In March 2006, a district court struck down a Michigan statute that, in the court’s words,
“regulates the distribution of both sexually explicit video games and ultra violent explicit video
games to those under the age of 17. The plaintiffs only challenge the second part of the Act 24
dealing with ultra violent explicit video games.” The court found that “defendants have failed to
present substantial evidence showing that playing violent video games causes minors to have 25
aggressive feelings or engage in aggressive behavior.” The court also found that the statute
would have a “chilling effect” on video game retailers because it “would make the retailers
themselves responsible for determining which games are considered ultra-violent. Since they
could not determine this in advance, the retailers would likely steer clear of any game with the
potential of such violence in order to avoid civil and criminal liability, thus denying 26
constitutionally protected free speech to minors and adults.” The court found, in addition, that
“[t]he defendants have also failed to consider less restrictive ways of achieving their interests ...
such as undertaking an advertising campaign to inform parents of the [voluntary] ratings system
[developed by the Entertainment Software Ratings Board] and what to watch out for when
purchasing games for their children, much like the theater industry did when ratings were first 2728
introduced.” Finally, the court found the Michigan statute to be “unconstitutionally vague.”
In July 2006, a district court struck down a Minnesota statute that would have imposed a civil
penalty of up to $25.00 on persons under 17 who knowingly rented or purchased a video game 29
rated AO or M by the Entertainment Software Rating Board (ESRB). Minnesota is in the Eight
Circuit, so the court was bound by the holding of the Eighth Circuit case discussed above that
video games are protected speech and that governmental restrictions on their distribution are 30
subject to strict scrutiny. The district court found that the state had failed to meet its burden of
providing “substantial, actual ‘empirical support for its belief that “violent” video games cause 31
psychological harm to minors.’” The court also found a violation of due process in the state’s
delegation of its authority to the ESRB to determine which video games a person under 17 may 32
rent or purchase.
In October 2006, a district court in Oklahoma granted a preliminary injunction against
enforcement of a statute that “criminalizes the display, sale, or other dissemination of” violent 33
video games, as defined by the statute. The court found that “[p]laintiffs present strong

(...continued)
Cir. 2006). The state appealed the district court decision only with respect to sexually explicit video games; the court of
appeals decision on that issue is discussed in the next section of this report.
24 Entertainment Software Association v. Granholm, 426 F. Supp. 2d 646, 648 (E.D. Mich. 2006).
25 Id. at 653.
26 Id. at 654.
27 Id. at 654-655.
28 Id. at 656.
29 Entertainment Software Association v. Hatch, 443 F. Supp. 2d 1065 (D. Minn. 2006). The ESRBs AO and M ratings
refer to sex as well as violence (see page 1 of this report), so we might have discussed this case in either this or the next
section of this report.
30 Interactive Digital Software, supra footnote 19.
31 Hatch, supra footnote 29, 443 F. Supp. 2d at 1069, quoting Interactive Digital Software, supra footnote 19, 329 F.3d
at 959.
32 Id. at 1070-1071.
33 Entertainment Merchants Association v. Henry, supra footnote 17.





arguments that the Act contains unconstitutional content-based restrictions and that the Act’s
language is unconstitutionally vague.”
In December 2006, a district court in Louisiana granted a permanent injunction against a statute 34
that criminalized the distribution to minors of violent video games. The court found that, “when
it comes to regulating expression in order ‘to curb violent behavior,’ the State must satisfy the
standards set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969). Under Brandenburg, the
government must prove that the target expression “is directed to inciting or producing imminent 35
lawless action and is likely to incite or produce such action.’” In addition, “the Statute cannot be
defended on the grounds that it is designed to protect minors from some form of ‘psychological 36
harm,’ as that amounts to nothing more than ‘impermissible thought control.’” The court also
found the statute underinclusive because “violent video games are only ‘a tiny fraction of the
media violence to which modern American children are exposed,’” and found “that there are less
restrictive alternatives which would achieve the State’s goals ... including encouraging awareness 37
of the voluntary ESRB video game rating system ... .” Finally, the court found the statute
unconstitutionally vague.
In 2007, a district court struck down a California statute that “requir[ed] that certain violent video 38
games be labeled and prohibit[ed] the rental or sale of those games to minors.” The court found
that “there as been no showing that violent video games as defined in the Act, in the absence of
other violent media, cause injury to children. In addition, the evidence does not establish that
video games, because of their interactive nature or otherwise, are any more harmful than violent 39
television, movies, internet sites or other speech-related exposures.”
As noted above, in 2005, a federal district court struck down an Illinois statute that prohibited
both violent and sexually explicit video games. The state appealed only with respect to sexually 40
explicit video games, and the Seventh Circuit affirmed. The Seventh Circuit applied strict
scrutiny and quickly found that the state’s identified purpose in “shielding children from indecent
sexual material and in assisting parents in protecting their children from that material” is “clearly”
compelling. The Seventh Circuit, however, found the Illinois statute to fail the second prong of
strict scrutiny because it “is not narrowly tailored and is overbroad.” This was because it banned
“access to material that has serious social value for minors,” even though doing so was 41
unnecessary for the state to achieve its stated purpose. Even apart from this problem, the court

34 Entertainment Software Association v. Foti. No. 06-431-JJB-CN (M.D. La., December 4, 2006). This opinion grants
a permanent injunction[f]or the reasons set forth at the hearing on the motions of November 29, 2006 and in the
Court’s August 24, 2006 Ruling on Motion for Preliminary Injunction and Motion to Dismiss. The August 24, 2006
ruling is reported at 451 F. Supp. 2d 823 (M.D. La. 2006).
35 451 F. Supp. 2d at 831 (citations omitted, emphasis added by the district court).
36 Id.
37 Id. at 833.
38 Video Software Dealers Association v. Schwarzenegger, No. C-05-04188 RMW (N.D. Cal., August 6, 2007), slip op.
at 1.
39 Id. at 15-16 (emphasis supplied by the court).
40 Entertainment Software Association v. Blagojevich, supra footnote 23.
41 The Illinois statute banned the sale or rental ofany sexually explicit video game to any minor” and defined
sexually explicit” as appealing to the prurient interest of minors and patently offensive with respect to minors. This
(continued...)





found that “the statute could still not survive strict scrutiny because the plaintiffs have identified
other less restrictive alternatives.... Most obviously, the State could have simply passed legislation
increasing awareness among parents of the voluntary ESRB ratings system.”
With respect to a First Amendment challenge to the prohibition of the sale or rental to minors of
video games with violent content, a court following the relevant precedents would apply strict
scrutiny, which means that it would uphold the provision only if it finds that it serves a
compelling governmental interest by the least restrictive means. The determinative question with
respect to whether the prohibition serves a compelling interest would apparently be whether the
government can “demonstrate that the recited harms are real, not merely conjectural, and that the 42
regulation will in fact alleviate these harms in a direct and material way.” All six cases cited
above found inadequate the government’s evidence as to the harm caused by violent video games,
but one cannot know whether a court in the future will consider the same research rejected by
courts in the past, or, if it does, whether it will find it more persuasive than have courts in the
past.
If a court were to find a compelling governmental interest in the prohibition of the sale or rental
of video games with violent content, then it would have to decide whether the prohibition
constituted the least restrictive means to advance the interest. A point in favor of the proposal’s
constitutionality with respect to this question is that video game stores would know from the “M”
or “AO” rating exactly which videos they could not legally sell or rent to minors. They would
not, therefore, face the situation that the court found that stores could face in one of the cases
discussed above, namely that, “[w]ithout wholesale, indiscriminate refusals to sell video games to
minors by store operators it appears impossible to protect sellers from prosecution.... Nor is it
reasonable to expect store clerks to play each level of each game to determine if it falls within the 43
act’s definition of ultra-violent explicit.”
Under the proposal, however, although retailers would know which video games they were
prohibited from selling or renting to minors, they could nevertheless argue that the proposal
prevented them from selling or renting to minors some video games that are constitutionally
protected with respect to minors. In addition, producers of video games could argue that the
proposal’s vagueness would prevent them from knowing which video games would be rated “M”

(...continued)
definition parallels the first two prongs of the Miller test for obscenity, but omits a parallel to the third prong, which is
that, to be obscene, material must, “taken as a whole, lack[ ] serious literary, artistic, political, or scientific value.
Miller v. California, supra footnote 4. In Ginsberg v. New York, supra notes 10 and 12, the Supreme Court upheld a
statute that prohibited the sale to minors of material that the statute labeled asharmful to minors, which it defined so
as to parallel all three prongs of a predecessor to Miller test, although, by applying each prong in terms of minors (i.e.,
appeals to the prurient ... interest of minors, etc.), the statute, like the Illinois video game statute, applied not only to
material that was obscene under the Miller test.
42 Turner Broadcasting System, supra footnote 8.
43 Entertainment Software Association v. Granholm, 404 F. Supp. 2d 978, 983 (E.D. Mich. 2005) (issuing a preliminary
injunction that preceded the permanent injunction issued in Entertainment Software Association v. Granholm, supra
footnote 24).





or “AO” and therefore prohibited from being sold or rented to minors, and that the proposal’s
overbreadth would prohibit from being sold or rented to minors some video games that were
constitutionally protected with respect to minors. In other words, producers of video games could
argue that the proposal would chill their speech because it might deter them, for market reasons,
from producing video games that were constitutionally protected with respect to minors.
Producers, that is, might fear that some video games that were constitutionally protected with
respect to minors would be rated “M” or “AO” and therefore would not be sold or rented to
minors, and that there was not a sufficient adult market for such games to make it worthwhile for
them to produce them, or that, even if there were, the producers would make less money because
minors would not be allowed to purchase or rent video games that were constitutionally
protected.
A person challenging the prohibition of the sale or rental of video games with violent content as
overly restrictive might argue that the language that defines the “M” and “AO” ratings is vague
and overbroad. Specifically, such a person might argue that the phrases “intense violence,”
“sexual content,” “strong language,” and “nudity” are unconstitutionally vague, and that a video
game’s having one or more of these features does not necessarily cause it to lose First
Amendment protection as to minors, and therefore the prohibition on renting or selling to minors
video games with one or more of these features would render the proposal unconstitutionally
overbroad.
Note that the use of “and/or” in the “M” and the “AO” ratings means that “intense” violence
under the “M” rating need not include blood and gore (nor be “prolonged,” as under the AO
rating), and that “strong language” is sufficient for an “M” rating, even if it is unrelated to
violence or sex. The breadth of the ban on the sale or rental to minors of video with “strong
language” might be especially problematic. The Supreme Court has written:
[M]inors 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.... Speech that is neither obscene as to youths nor subject to
some other legitimate proscription cannot be suppressed solely to protect the young from 44
ideas or images that a legislative body thinks unsuitable for them.
Furthermore, the Court has also found that the First Amendment applies “not only [to] ideas
capable of relatively precise, detached explication, but [to] otherwise inexpressible emotions as
well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot
sanction the view that the Constitution, while solicitous of the cognitive content of individual
speech, has little or no regard for that emotive function which, practically speaking, may often be 45
the more important element of the overall message sought to be communicated.” “Strong
language,” therefore, is protected speech, including generally for minors; the only exception the
Supreme Court has found is with respect to the use of “indecent” language on broadcast radio and 46
television during hours—but not all 24—when children are likely to be in the audience.

44 Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-214 (1975) (citations omitted).
45 Cohen v. California, 403 U.S. 15, 26 (1971).
46 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).





Because the courts generally assume, without requiring evidence, that sexually explicit material is
harmful to minors, the proposal’s prohibition of the sale or rental of video games with sexual
content might more easily pass the “compelling governmental interest” prong of the strict
scrutiny test than would the proposal’s prohibition of the sale or rental of video games with
violent content. Even here, however, the “M” rating refers merely to “sexual content,” by contrast
with the “AO” rating’s reference to “graphic sexual content.” Sexual content, especially if it is not
graphic, does not necessarily constitute pornography, but may concern such subjects as birth
control and sexually transmitted diseases. (Video games may not typically address such matters,
but, under the substantial overbreadth doctrine discussed above, it might not be necessary that
they do for a court to find the proposal facially invalid.) It might be impossible for the
government to demonstrate a compelling interest in denying minors access to all material with 47
sexual content. If a court did not rule on this question and instead applied the “least restrictive
means” prong of the strict scrutiny test, then it might find the proposal overbroad in applying to 48
all material with sexual content in an effort to deny minors access to some of it. The “M” rating,
like the statute that the Seventh Circuit struck down in the one federal case that addressed a ban
on video games with sexual content, is not limited to material that is “obscene as to minors” (i.e., 49
to material that taken as a whole, lacks serious literary, artistic, political, or scientific value).
An “AO” rating may be imposed on video games with “graphic sexual content and nudity,” which
suggests that nudity alone would not suffice for an “AO” rating, though it might be considered
“sexual content” and suffice for an “M” rating. This seems problematic, because the Supreme
Court has written that nudity alone “does not place otherwise protected material outside of the 50
First Amendment.” This statement was not made with reference to minors’ First Amendment
rights, but, if a court, in applying the First Amendment, took into account the ages of minors who
typically buy or rent video games, the extent of the nudity portrayed, and the manner in which it
is portrayed, then it might find the proposal’s coverage of nudity vague and overbroad.
Because the proposal would prohibit the sale or rental to minors of video games with either “M”
or “AO” ratings, the constitutionality of each of these prohibitions should be examined separately.
Video games with “M” ratings, as noted, “may contain intense violence, blood and gore, sexual
content, and/or strong language.” If a video game contained any one of these features, then it
would be rated “M” and could not be sold or rented to minors. If it would be unconstitutional to
prohibit the sale or rental to minors of video games simply because they contain strong language,
or simply because they contain sexual content—without regard to the particular strong language

47 See, text accompanying footnote 14, supra, especially the Supreme Courts comment in Reno that it would neither
accept nor reject the Government’s submission that the First Amendment does not forbid a blanket prohibition on all
‘indecent andpatently offensive messages communicated to a 17-year-old—no matter how much value the message
may have and regardless of parental approval. It is at least clear that the strength of the Government’s interest in
protecting minors is not equally strong throughout the coverage of this broad statute.
48 In other words, it appears that, if the proposal applied to sexual material with serious value, then it might be struck
down under either prong of the strict scrutiny test.
49 Entertainment Software Association v. Blagojevich, supra footnote 23. As noted, the Seventh Circuit in this case also
found that the statute in question did not constitute the least restrictive means because “the State could have simply
passed legislation increasing awareness among parents of the voluntary ESRB ratings system.”
50 Schad v. Mount Ephraim, 452 U.S. 61, 66 (1981).





or the particular sexual content—then the substantial overbreadth doctrine would seem likely to
render unconstitutional a prohibition on the sale or rental to minors of “M”-rated video games,
given the current criteria for an “M” rating.
Video games with “AO” ratings, as noted, “may include prolonged scenes of intense violence
and/or graphic sexual content and nudity.” Applying the same reasoning just applied to video
games with “M” ratings, if it would be unconstitutional to prohibit the sale or rental to minors of
video games simply because they contained prolonged scenes of intense violence, without regard
to their literary value or the possibility of harm, then the substantial overbreadth doctrine would
seem likely to render unconstitutional a prohibition on the sale or rental to minors of “AO”-rated
video games, given the current criteria for an “AO” rating.
In conclusion, it appears that, for a prohibition of the sale or rental to minors of video games with
violent content to be upheld, the government would have to present empirical evidence that these
games harm minors or cause them to become violent. The prohibition of the sale or rental to
minors of video games containing sexual content, however, would seem more likely to be upheld
without empirical evidence that such games harm minors.
Nevertheless, the apparent vagueness and potential overbreadth of the current criteria for “M” and
“AO” ratings might cause a statutory prohibition on the sale or rental to minors of video games
that incorporates those ratings to be found unconstitutional on its face, even if the sale or rental to
minors of some of the video games to which the “M” or “AO” rating apply could constitutionally
be prohibited by more narrowly tailored legislation.

Henry Cohen
Legislative Attorney
hcohen@crs.loc.gov, 7-7892