American Amusement Mach. Ass'n v. Kendrick

Decision Date11 October 2000
Docket NumberNo. IP00-1321-C-H/G.,IP00-1321-C-H/G.
Citation115 F.Supp.2d 943
PartiesAMERICAN AMUSEMENT MACHINE ASSOCIATION, et al., Plaintiffs, v. Teri KENDRICK, et al., Defendants.
CourtU.S. District Court — Southern District of Indiana

David L. Kelleher, Arent Fox Kintner Plotkin & Kahn, Washington, DC, Wayne C. Turner, McTurnan & Turner, Indianapolis, IN, for Plaintiffs.

Matthew R. Gutwein, Baker & Daniels, Indianapolis, IN, A. Scott Chinn, Corp Counsel for the City of Indianapolis, IN, for Defendants.


HAMILTON, District Judge.

Introduction and Summary

The First Amendment does not prohibit states from restricting children's access to pornography even though adults' access to the same sexually explicit materials may not be restricted. See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). This case presents questions about the extension of this rule of First Amendment law to video games with images of graphic violence. Indianapolis General Ordinance No. 72-2000 restricts the display and operation of coin-operated amusement machines (primarily video games) deemed "harmful to minors" if they include either "strong sexual content" or "graphic violence," as those terms are defined more specifically in the Ordinance. Under the Ordinance, children may not play or watch such games without a parent's permission.

Plaintiffs are in the business of manufacturing, distributing, or displaying video games. They have no quarrel with the Ordinance's restriction on children's access to games with "strong sexual content." Plaintiffs contend, however, that the Ordinance's restrictions on games with "graphic violence" are content-based restrictions on speech that violate the First Amendment and that the Ordinance is unconstitutionally vague. Plaintiffs seek preliminary injunctive relief against its enforcement.

The first issue here is whether violent video games are forms of expression protected by the First Amendment at all. At this preliminary injunction stage of the case, the court concludes that at least some video games are expression entitled to First Amendment protection.

The second broad issue is whether a local government may restrict children's access to games with graphic violence, just as Ginsberg shows a government may restrict access to games with explicit sexual content. The court finds for several reasons that plaintiffs are unlikely to show that the Ordinance's restrictions on children's access to games with graphic violence violate the First Amendment. First, the City has shown that it has important and legitimate reasons to be concerned about violent video games causing harm to children. Second, the court is not persuaded there is any principled constitutional difference between sexually explicit material and graphic violence, at least when it comes to providing such material to children. Third, the Ordinance is carefully tailored to address the potential harm to children without infringing upon other First Amendment interests. The Ordinance does not bar or significantly limit adults from using the games in question, it does not engage in viewpoint discrimination, it does not limit the expression of ideas or other messages, and it authorizes only civil enforcement mechanisms.

In short, the Ordinance reflects a careful, reasonable, and limited extension of the principles applied in Ginsberg to protect children from pornography. The court also finds that plaintiffs are unlikely to prevail on their vagueness challenge to the Ordinance. The court therefore denies plaintiffs' motion for preliminary injunction. This entry sets forth the court's findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52 and 65.

Factual Background
I. The Ordinance

On July 10, 2000, the City-County Council of the City of Indianapolis and Marion County adopted General Ordinance No. 72 regarding the operation and display of currency-operated amusement machines ("video games"). The Ordinance restricts children's access to video games containing graphic violence or strong sexual content by regulating the establishments that offer video games to the public.1

For constitutional purposes, the most important parts of the Ordinance are the definitions for games that are "harmful to minors." Those definitions trigger the substantive prohibitions of the Ordinance on the display of such games:

Harmful to minors means an amusement machine that predominantly appeals to minors' morbid interest in violence or minors' prurient interest in sex, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for persons under the age of eighteen (18) years, lacks serious literary, artistic, political or scientific value as a whole for persons under the age of eighteen (18) years, and:

(1) Contains graphic violence; or

(2) Contains strong sexual content.

Graphic violence means an amusement machine's visual depiction or representation of realistic serious injury to a human or human-like being where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfiguration.

Strong sexual content means the visual depiction or representation by an amusement machine of nudity or explicit human sexual behavior by any human or human-like being in one or more of the following forms: masturbation; deviate sexual conduct; sexual intercourse; or, fondling of genitals.

Nudity means an amusement machine's visual depiction or representation of human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or of a female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.

City-County General Ordinance No. 72-2000, amending Revised Code of the Consolidated City of Indianapolis and Marion County § 831-1. For purposes of the Ordinance, a minor is any unemancipated person under the age of 18. Id.

Section 831-5 of the City's Code, as amended by the Ordinance, sets forth the substantive prohibitions that apply to "registrants," who operate five or more video games in one location:

(h) It shall be unlawful for a registrant, a registrant's agent, or an employee of an amusement location knowingly to allow a minor who is not accompanied by the minor's parent, guardian or custodian to operate in the amusement location an amusement machine that is harmful to minors.

(i) It shall be unlawful for a registrant to operate an amusement location unless each amusement machine that is harmful to minors in the amusement location displays a conspicuous sign indicating that the machine may not be operated by a minor under eighteen (18) years of age unless the minor is accompanied by his or her parent, guardian, or custodian. If amusement machines that are harmful to minors are displayed together in an area separate from amusement machines that are not harmful, a single conspicuous sign in that area or at the entrance to that area may be used to mark the group of machines for purposes of this subsection.

(j) It shall be unlawful for a registrant to make available to patrons any amusement machine that is harmful to minors within ten (10) feet of an amusement machine that is not harmful. It shall further be unlawful for a registrant not to separate amusement machines that are harmful to minors from other machines by some form of partition, divider, drape, barrier, panel, screen, or wall that completely obstructs the view of persons outside the partitioned area of the playing surface or display screen of the machines that are harmful to minors. It shall be unlawful for a registrant, registrant's agent, or employee of an amusement location to allow a minor who is not accompanied by his or her parent, guardian, or custodian into the partitioned area.2

Violations of the Ordinance are punishable by civil fines under Section 103-3 of the Code. The minimum fine for a violation is $200. No more than one violation may be assessed on any one day. For multiple violations, a registrant or exhibitor may lose the right to make available to the public any machines that are "harmful to minors." The City may also suspend or revoke an amusement location's registration in some circumstances. See §§ 831-5(k)-(l), 831-6(i), 831-9.

The record includes an unusually extensive legislative history for a local ordinance. Councillor Rozelle Boyd introduced an early version of the Ordinance to the City-County Council on April 10, 2000, which was referred to the Rules and Public Policy Committee. Ex. P-61. At two meetings the Committee debated the proposal and heard extensive public comment from industry representatives and community interest groups. Exs. P-51, P-52. In addition, several reports on the subject of children and violence in the media were made available to the Committee members. Ex. P-64. In response to comments on the original proposal, the Committee made several substantive changes and sent the amended proposal to the full City-County Council. Ex. P-52. The Council passed the Ordinance on July 10, 2000, and the Mayor of Indianapolis signed the legislation on July 17, 2000. Ex. P-53.3

The preamble to the Ordinance invokes the City's "compelling interests in protecting the well-being of minors, in protecting parents' authority to shield their minor children from influences that the parents find inappropriate or offensive, and in reducing juvenile crime." The preamble then sets forth the need for and purpose of the Ordinance by: (1) noting that "courts have recognized that minors are affected by and may be protected from patently offensive sex-related material;" (2) asserting that "recent academic literature corroborates the finding of earlier studies that violent video games produce psychological effects in minor children and that prolonged exposure to violent video games...

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3 cases
  • Wilson v. Midway Games, Inc.
    • United States
    • U.S. District Court — District of Connecticut
    • March 27, 2002
    ...of First Amendment protection enjoyed by video game manufacturers in a variety of contexts. In American Amusement Machine Assoc. v. Kendrick, 115 F.Supp.2d 943 (S.D.Ind. 2000) ("Kendrick I"), the court was asked to enjoin enforcement, on First Amendment grounds, of an Indianapolis ordinance......
  • Serpico v. Village of Elmwood Park
    • United States
    • United States Appellate Court of Illinois
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    ...time as determined by player employs "finishing move" which is unique to that character); American Amusement Machine Ass'n v. Kendrick, 115 F.Supp.2d 943, 952 (S.D.Ind.2000) (Kendrick I), rev'd & remanded, 244 F.3d 572 (7th Cir.2001) (Kendrick II) (video games Gauntlet Legends and Gauntlet ......
  • Interactive Dig. Software v. St. Louis County, Mo.
    • United States
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    ...within the meaning of the First Amendment. American Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572 (7th Cir.2001), aff'g 115 F.Supp.2d 943 (S.D.Ind.2000). The Seventh Circuit did not address the issue directly, and therefore, the Court must look to the district court opinion to determine s......
2 books & journal articles
  • Application of the First Amendment to Violent and Nonviolent Video Games
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 20-4, June 2004
    • Invalid date
    ...of [free speech]" and that "[w]hat is one man's amusement, teaches another's doctrine"); Am. Amusement Mach. Ass'n v. Kendrick, 115 F. Supp. 2d 943, 954 (S.D. Ind. 2000) (finding that not all protected expression lies at the core of the First Amendment and "thus, even if . . . video games c......
  • Newbs Lose, Experts Win: Video Games in the Supreme Court
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 95, 2021
    • Invalid date
    ...and Block attorneys have argued more than 100 cases before the Supreme Court. See id. 52. See Am. Amusement Mach. Ass'n v. Kendrick, 115 F. Supp. 2d 943, 946 (2000). While Smith did not represent the plaintiff in Kendrick, he did file an amicus brief on behalf of the Interactive Digital Sof......

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