Entertainment Software Ass'n v. Granholm

• Decision Date: 31 March 2006
• Docket Number: No. 05-73634.,05-73634.
• Citation: 426 F.Supp.2d 646
• Parties: ENTERTAINMENT SOFTWARE ASSOCIATION, Video Software Dealers Association, and Michigan Retailers Association, Plaintiffs, v. Jennifer M. GRANHOLM, in her official capacity as Governor of the State of Michigan; Michael A. Cox, in his official capacity as Attorney General of the State of Michigan; and Kym L. Worthy, in her official capacity as Wayne County Prosecutor, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

426 F.Supp.2d 646

ENTERTAINMENT SOFTWARE ASSOCIATION, Video Software Dealers Association, and Michigan Retailers Association, Plaintiffs, v. Jennifer M. GRANHOLM, in her official capacity as Governor of the State of Michigan; Michael A. Cox, in his official capacity as Attorney General of the State of Michigan; and Kym L. Worthy, in her official capacity as Wayne County Prosecutor, Defendants.

No. 05-73634.

United States District Court, E.D. Michigan, Southern Division.

March 31, 2006.

COPYRIGHT MATERIAL OMITTED

Alicia J. Blumenfeld, Dennis J. Levasseur, Bodman, Detroit, MI, Paul M. Smith, Jenner & Block, Washington, DC, for Plaintiffs.

Denise C. Barton, Jason R. Evans, MI Dept. of Atty. Gen., Lansing, MI, for Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT, DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, AND PERMANENTLY ENJOINING THE ACT AS UNCONSTITUTIONAL

STEEH, District Judge.

This case arises out of Entertainment Software Association's (ESA), Video Software Dealers Association's (VSDA), and Michigan Retailers Association's (MRA) (hereafter referred to as "plaintiffs") complaint against defendants Jennifer Granholm, in her official capacity as Governor of the State of Michigan, Michael A. Cox, in his official capacity as Attorney General of the State of Michigan, and Kym L. Worthy, in her official capacity as Wayne County Prosecutor (hereafter referred to as "defendants"). Defendants' proposed law violates the First and Fourteenth Amendments of the United States Constitution and, for the reasons stated below, plaintiffs' motion for summary judgment is GRANTED and defendants' motion for summary judgment is DENIED. The preliminary injunctive relief that was previously ordered with regard to 2005 Mich. Public Act 108, is now converted into a permanent injunction.

FACTUAL BACKGROUND

On September 14, 2005, Governor Jennifer Granholm signed into law 2005 Mich. Public Act 108 ("the Act"), which was due to take effect on December 1, 2005. The Act 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 dealing with ultra violent explicit video games.

The Act imposes civil and criminal penalties for a person to "knowingly disseminate to a minor an ultra-violent explicit video game that is harmful to minors." The Act defines an "ultra-violent explicit video game" as one that "continually and repetitively depicts extreme and loathsome violence." Act, pt. II, § 16(l). "Extreme and loathsome violence" is defined as "real or simulated graphic depictions of physical injuries or physical violence against parties who realistically appear to be human beings, including actions causing death, inflicting cruelty, dismemberment decapitation, maiming, disfigurement, or other mutilation of body parts, murder, criminal sexual conduct, or torture." Act, pt. II, § 16(g). A video game is considered "harmful to minors" if it displays all of the following characteristics:

(I) Considered as a whole, appeals to the morbid interest in asocial, aggressive behavior of minors as determined by contemporary local community standard.

(ii) Is patently offensive to contemporary local community standards of adults as to what is suitable for minors.

(iii) Considered as a whole, lacks serious literary, artistic, political, education, or scientific value for minors.

Act, pt. II, § 16(h).

Relying on research studies, and in order to protect the public health and general welfare of Michigan citizens, the Legislature found that: (1) ultra-violent explicit video games are harmful to minors because minors who play them are more likely to exhibit violent, asocial, or aggressive behavior and have feelings of aggression; (2) there is a causal connection between media violence and aggressive behavior in some children, and that the effects of media violence are "measurable and long-lasting"; and (3) that minors are capable of purchasing, and do purchase, ultra-violent explicit video games. Legislative History Enrolled Senate Bill No. 416, Part II §§ 15(a)-(c). The stated interests of the Legislature for the enactment are: "(1) safeguarding both the physical and psychological well being of minors, (2) preventing violent, aggressive and asocial behavior from manifesting itself in minors, and (3) directly and substantially alleviating the real-life harms perpetrated by minors who play ultra-violent explicit video games." Act, pt. II, §§ 15(e)-(g).

The plaintiffs are creators, publishers, and distributors of video games. Their complaint seeks to invalidate the Act on the grounds that it is unconstitutional under the First and Fourteenth Amendments. The plaintiffs claim that the Act is a violation of protected free speech, equal protection, due process, and that it is unconstitutionally vague.

On November 9, 2005, this Court granted a preliminary injunction enjoining the defendants' enforcement of the law before it took effect. The Court determined that plaintiffs were likely to succeed on their claims that the Act was unconstitutional under the First and Fourteenth Amendments.

Plaintiffs filed a motion for summary judgement, pursuant to Fed.R.Civ.P. 56, to invalidate the Act as an unconstitutional violation of free speech under the First Amendment, and as unconstitutionally vague under the Fourteenth Amendment.¹ Defendants filed a cross-motion for summary judgement arguing that the Act neither violates free speech nor is unconstitutionally vague, and that the Act is narrowly tailored to promote a compelling state interest.

The issue of regulating violent video games to minors has been decided in the Seventh and Eighth Circuit, both of which have found that the attempted regulation in those districts violates the First Amendment. Amer. Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572 (7th Cir.2001), Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir.2003). Several other District Courts have similarly held such acts to be unconstitutional. See Video Software Dealers Ass'n v. Maleng, 325 F.Supp.2d 1180 (W.D.Wash.2004), Entertainment Software Ass'n v. Blagojevich, 404 F.Supp.2d 1051 (N.D.Ill.2005) ("E.S.A.") (granting preliminary injunction), Video Software Dealers Ass'n v. Schwarzenegger, 401 F.Supp.2d 1034 (N.D.Cal.2005) (granting preliminary injunction).

STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Civil Procedure 56(c) empowers the court to render summary judgment "forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." See Redding v. St. Edward 241 F.3d 530, 532 (6th Cir.2001). The Supreme Court has affirmed the court's use of summary judgment as an integral part of the fair and efficient administration of justice. The procedure is not a disfavored procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir.1995).

The standard for determining whether summary judgment is appropriate is "`whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Amway Distributors Benefits Ass'n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The evidence and all reasonable inferences must be construed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Redding, 241 F.3d at 532 (6th Cir.2001). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (emphasis in original); see also National Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir.2001).

If the movant establishes by use of the material specified in Rule 56(c) that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, the opposing party must come forward with "specific facts showing that there is a genuine issue for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968); see also McLean v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir.2000). Mere allegations or denials in the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence supporting the non-moving party. Anderson, 477 U.S. at 248, 252, 106 S.Ct. 2505. Rather, there must be evidence on which a jury could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing Anderson, 477 U.S. at 252, 106 S.Ct. 2505).

ANALYSIS

I. First Amendment

A. Protected Free Speech

The first issue that must be decided is whether video games are considered to be constitutionally protected free speech. The notion that video games are protected free speech under the First Amendment is becoming widely adopted in Circuit Courts around the United States. See Kendrick, 244 F.3d 572 (7th Cir.2001); and Interactive Digital Software Ass'n, 329 F.3d 954 (8th Cir.2003). The Sixth Circuit held that video games were protected free speech under the First Amendment for the purposes of regulating tort liability and stated that "[o]ur decision here today should not be interpreted as a broad holding on the protected status of video games." James v. Meow Media Inc., 300 F.3d 683, 696 (6th Cir.2002). However, the Court did recognize that "most federal...