American Amusement Machine v. Kendrick

• Decision Date: 23 March 2001
• Docket Number: No. 00-3643,00-3643
• Citation: 244 F.3d 572
• Parties: (7th Cir. 2001) American Amusement Machine Association, et al., Plaintiffs-Appellants, v. Teri Kendrick, et al., Defendants-Appellees
• Court: U.S. Court of Appeals — Seventh Circuit

Page 572

244 F.3d 572 (7th Cir. 2001)

American Amusement Machine Association, et al., Plaintiffs-Appellants, v. Teri Kendrick, et al., Defendants-Appellees.

No. 00-3643

In the United States Court of Appeals For the Seventh Circuit

Argued December 1, 2000

Decided March 23, 2001

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. IP00-1321-C H/G--David F. Hamilton, Judge.

Before Posner, Diane P. Wood, and Williams, Circuit Judges.

Posner, Circuit Judge.

The manufacturers of video games and their trade association seek to enjoin, as a violation of freedom of expression, the enforcement of an Indianapolis ordinance that seeks to limit the access of minors to video games that depict violence. Denial of a preliminary injunction has precipitated this appeal.

The ordinance defines the term "harmful to minors" to mean "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" that age, and contains either "graphic violence" or "strong sexual content." "Graphic violence," which is all that is involved in this case (so far as appears, the plaintiffs do not manufacture, at least for exhibition in game arcades and other public places, video games that have "strong sexual content"), is defined to mean "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 [disfigurement]."

The ordinance forbids any operator of five or more video-game machines in one place to allow a minor unaccompanied by a parent, guardian, or other custodian to use "an amusement machine that is harmful to minors," requires appropriate warning signs, and requires that such machines be separated by a partition from the other machines in the location and that their viewing areas be concealed from persons who are on the other side of the partition. Operators of fewer than five games in one location are subject to all but the partitioning restriction. Monetary penalties, as well as suspension and revocation of the right to operate the machines, are specified as remedies for violations of the ordinance.

The ordinance was enacted in 2000, but has not yet gone into effect, in part because we stayed it pending the decision of the appeal. The legislative history indicates that the City believes that participation in violent video games engenders violence on the part of the players, at least when they are minors. The City placed in evidence videotapes of several of the games that it believes violate the ordinance.

Although the district judge agreed with the plaintiffs that video games, possibly including some that would violate the ordinance, are "speech" within the meaning of the First Amendment and that children have rights under the free-speech clause, he held that the ordinance would violate the amendment only if the City lacked "a reasonable basis for believing the Ordinance would protect children from harm." He found a reasonable basis in a pair of empirical studies by psychologists which found that playing a violent video game tends to make young persons more aggressive in their attitudes and behavior, and also in a larger literature finding that violence in the media engenders aggressive feelings. The judge also ruled that the ordinance's tracking of the conventional standard for obscenity eliminated any concern that the ordinance might be excessively vague.

Having decided that the ordinance did not violate the plaintiffs' constitutional rights, the district judge did not consider the other criteria that might bear on the decision to grant or deny a preliminary injunction. In this appeal too, the parties argue only over whether the ordinance is legal, tempting us to treat this as if it were an appeal from a final judgment in favor of the defendants. We shall consider at the end of the opinion whether there is any occasion for further proceedings in the district court.

The ordinance brackets violence with sex, and the City asks us to squeeze the provision on violence into a familiar legal pigeonhole, that of obscenity, which is normally concerned with sex and is not protected by the First Amendment, while the plaintiffs insist that since their games are not obscene in the conventional sense they must receive the full protection of the First Amendment. Neither position is compelling. Violence and obscenity are distinct categories of objectionable depiction, Winters v. New York, 333 U.S. 507, 518-20 (1948); United States v. Thoma, 726 F.2d 1191, 1200 (7th Cir. 1984) ("depictions of torture and deformation are not inherently sexual and, absent some expert guidance as to how such violence appeals to the prurient interest of a deviant group, there is no basis upon which a trier of fact could deem such material obscene"); State v. Johnson, 343 So. 2d 705, 709-10 (La. 1977), and so the fact that obscenity is excluded from the protection of the principle that government may not regulate the content of expressive activity (as distinct from the time, place, or manner of the activity) neither compels nor forecloses a like exclusion of violent imagery. This would be obvious if a pornographer were to argue that because violence is "like" obscenity yet has not yet been placed on the list of expressive forms that can be regulated on the basis of their content, see, e.g., R.A.V. v. City of St. Paul, 505 U.S. 377, 382-84 (1992); DiMa Corp. v. Town of Hallie, 185 F.3d 823, 827 (7th Cir. 1999), obscenity should be struck from the list.

We shall discover some possible intersections between the concerns that animate obscenity laws and the concerns that animate the Indianapolis ordinance as we proceed, but in general the concerns are different. The main worry about obscenity, the main reason for its proscription, is not that it is harmful, which is the worry behind the Indianapolis ordinance, but that it is offensive. A work is classified as obscene not upon proof that it is likely to affect anyone's conduct, but upon proof that it violates community norms regarding the permissible scope of depictions of sexual or sex-related activity. Miller v. California, 413 U.S. 15, 24 (1973); United States v. Moore, 215 F.3d 681, 686 (7th Cir. 2000); United States v. Langford, 688 F.2d 1088, 1091 (7th Cir. 1982); United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001). Obscenity is to many people disgusting, embarrassing, degrading, disturbing, outrageous, and insulting, but it generally is not believed to inflict temporal (as distinct from spiritual) harm; or at least the evidence that it does is not generally considered as persuasive as the evidence that other speech that can be regulated on the basis of its content, such as threats of physical harm, conspiratorial communications, incitements, frauds, and libels and slanders, inflicts such harm. There are people who believe that some forms of graphically sexual expression, not necessarily obscene in the conventional legal sense, may incite men to commit rape, or to disvalue women in the workplace or elsewhere, see, e.g., Catharine A. MacKinnon, Only Words (1993); but that is not the basis on which obscenity has traditionally been punished. No proof that obscenity is harmful is required either to defend an obscenity statute against being invalidated on constitutional grounds or to uphold a prosecution for obscenity. Offensiveness is the offense.

One can imagine an ordinance directed at depictions of violence because they, too, were offensive. Maybe violent photographs of a person being drawn and quartered could be suppressed as disgusting, embarrassing, degrading, or disturbing without proof that they are likely to cause any of the viewers to commit a violent act. They might even be described as "obscene," in the same way that photographs of people defecating might be, and in many obscenity statutes are, included within the legal category of the obscene, Miller v. California, supra, 413 U.S. at 25; Pope v. Illinois, 481 U.S. 497, 501 n. 4 (1987); United States v. Langford, supra, 688 F.2d at 1091 n. 3, even if they have nothing to do with sex. In common speech, indeed, "obscene" is often just a synonym for repulsive, with no sexual overtones at all.

But offensiveness is not the basis on which Indianapolis seeks to regulate violent video games. Nor could the ordinance be defended on that basis. The most violent game in the record, "The House of the Dead," depicts zombies being killed flamboyantly, with much severing of limbs and effusion of blood; but so stylized and patently fictitious is the cartoon-like depiction that no one would suppose it "obscene" in the sense in which a photograph of a person being decapitated might be described as "obscene." It will not turn anyone's stomach. The basis of the ordinance, rather, is a belief that violent video games cause temporal harm by engendering aggressive attitudes and behavior, which might lead to violence.

This is a different concern from that which animates the obscenity laws, though it does not follow from this that government is helpless to respond to the concern by regulating such games. Protecting people from violence is at least as hallowed a role for government as protecting people from graphic sexual imagery. Chaplinsky v. New Hampshire, 315 U.S. 568, 572-73 (1942), permits punishment of "fighting words," that is, words likely to cause a breach of the peace-- violence. See also R.A.V. v. City of St. Paul, supra, 505 U.S. at 386, 391-92. Such punishment is permissible "content based" regulation, and...