ENTERTAINMENT SOFTWARE v. Chicago Transit Auth.

• Citation: 696 F. Supp.2d 934
• Decision Date: 07 January 2010
• Docket Number: No. 09 C 4387.,09 C 4387.
• Parties: ENTERTAINMENT SOFTWARE ASSOCIATION, Plaintiff, v. CHICAGO TRANSIT AUTHORITY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

696 F. Supp.2d 934

ENTERTAINMENT SOFTWARE ASSOCIATION, Plaintiff, v. CHICAGO TRANSIT AUTHORITY, Defendant.

No. 09 C 4387.

United States District Court, N.D. Illinois, Eastern Division.

January 7, 2010.

David P. Sanders, Jenner & Block LLP, Chicago, IL, Duane Pozza, Katherine A. Fallow, Matthew S. Hellman, Paul March Smith, Jenner & Block LLP, Kenneth Doroshow, Washington, DC, for Plaintiff.

Richard M. Carbonara, Sandy L. Morris, Chico & Nunes, P.C., Allison Seger Noback, Chicago Transit Authority, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

REBECCA R. PALLMEYER, District Judge.

This case presents the question whether Defendant Chicago Transit Authority ("CTA"), a governmental entity, may prohibit commercial advertisements for mature-content video games on its trains, buses and facilities without running afoul of the First Amendment. On January 1, 2009, the CTA implemented an ordinance prohibiting any advertisement which "markets or identifies" a video or computer game with a "Mature" ("M") or "Adults Only" ("AO") rating. The CTA has no similar restrictions on advertisements for films or television shows with adult ratings or content, nor does the CTA have any restrictions on political speech or issue advocacy. Plaintiff Entertainment Software Association ("ESA"), an industry group of game makers and sellers, filed this facial challenge to the CTA ordinance under the First and Fourteenth Amendments to the United States Constitution. In August 2009, Plaintiff ESA filed a motion seeking a preliminary injunction to enjoin the CTA from enforcing the ordinance. For reasons explained herein, the court grants Plaintiff's motion for a preliminary injunction.

BACKGROUND

I. The CTA's function and advertising system

The CTA is a municipal corporation created by Illinois statute. 70 ILCS 3605/1 et seq. It operates the second largest public transportation system in the United States, carrying roughly 1.7 million passengers on its trains and busses every weekday. (Ex. A to Def's Br., O'Keefe Decl. at ¶ 2.) A number of those passengers on any given day are children. According to Monica O'Keefe, Manager of Media Sales for the CTA, over 96 percent of Chicago's schools and public parks are within two blocks of a CTA bus stop or rail station, and the CTA experiences a regular influx of school children immediately before and after school hours. (Id. at ¶ 3.)

To supplement the revenue it generates from fares, the CTA sells advertising space in its stations and on the inside and outside of its buses and rail cars. (Id. at ¶ 4.) For much of its history, the CTA had no clear, consistently-enforced policy for accepting or rejecting the advertisements it displayed in these areas. See Planned Parenthood Ass'n/Chicago Area v. Chicago Transit Authority, 767 F.2d 1225, 1229-30 (7th Cir.1985). As a result, in 1985, the Seventh Circuit concluded that the CTA advertising system had become a designated public forum for expression. Id. at 1232. In Planned Parenthood, the CTA refused to display advertisements for family planning services based on its stated policy of rejecting "controversial" ads. Finding that the CTA's "controversial" standard was applied arbitrarily, the Court of Appeals held that the CTA was obligated to post the ads. Because the CTA had opened itself to a "wide variety of commercial, political-candidate, and public issue advertising," the court found that the CTA advertising system had become a public forum and, thus, was not free to refuse ads based on content. Id. at 1227.

II. The CTA's recent advertising guidelines

In 1991, ostensibly in an effort to limit the types of ads that the system was compelled to accept, the Chicago Transit Board, CTA's governing body, adopted a series of guidelines for advertisements to be submitted and displayed on CTA property. (Ordinance No. 91-169, Ex. A. to O'Keefe Decl.)¹ The ordinance states, in part:

WHEREAS, The Chicago Transit Board has determined to create certain exceptions to the non-public forum status of CTA property and to permit certain forms of public service, commercial, and other advertising in or upon CTA buses, rapid transit cars, and vehicles and facilities...

1. All advertising must comply with all applicable laws and with all ordinances, rules, regulations, requirements, and specifications promulgated by the Chicago Transit Authority ("CTA").²

. . .

3. All commercial advertising must be truthful. False, deceptive, or misleading commercial advertising is not permitted.... Commercial advertising that proposes transactions which would constitute unlawful discrimination or would be illegal for any other reason is not permitted.

4. Advertising that is legally obscene is not permitted. In addition, sexually explicit advertising depicting nudity (male or female genitals, pubic areas, or buttocks with less than fully opaque covering; female breasts with less than fully opaque covering or any part of the areolae or nipples; or the covered genitals in a discernibly turgid or otherwise recognizable state) or sexual intercourse or other sexual acts is not permitted.

5. Advertising that portrays graphic violence, such as through the depiction of human or animal bodies, body parts, or fetuses in states of mutilation, dismemberment, disfigurement or decomposition, is not permitted.

6. Advertising that is directed to inciting or producing imminent lawless action and is likely to incite or produce such action, including but not limited to unlawful action based on a person's race, color, sex, age, religion, disability, national origin, ancestry, sexual orientation, marital or parental status, military discharge status, or source of income, is not permitted.

7. If advertising contains a testimonial, then the sponsor shall provide to the CTA documentation that the person making the testimonial has authorized its use in advertising.

8. Advertising cannot encourage persons to refrain from using safety precautions normally used in transit-related activities, such as awaiting, boarding, riding upon, or debarking from transit vehicles.

. . .

12. The placement of non-public-service advertising shall take precedence over placement of public service advertising.³

(Id.) The ordinance further instructs that advertisements "shall be accepted for posting" unless the Executive Director of the CTA notifies the advertiser within 15 days of submission of an ad that the ad fails to meet one of these guidelines. (Id. at § 4.)

In 1997, citing the fact that a number of CTA passengers were minors who could not legally purchase tobacco or alcohol, the CTA also enacted a total ban on advertisements for tobacco products and alcoholic beverages. (Ordinance 97-144, Ex. A to O'Keefe Decl.) Other than the guidelines and the alcohol and tobacco ban, the CTA had no other regulations restricting the advertising it displayed on its property prior to adopting the ordinance that is challenged in this case.

III. The CTA and mature video games

In April 2008, pursuant to an advertising contract with the game's maker, the CTA displayed advertisements on its property for the mature-rated video game Grand Theft Auto IV. (Def. Ans. at ¶ 19, D.E. 34.) The Grand Theft Auto IV game contains graphic violence and sexual content, but the advertisements that were displayed on the CTA system did not depict violence or sexual acts. (Id.) Soon after the advertisements appeared, a local television station aired a report commenting on violent crime in the Chicago area and questioning the CTA's decision to carry ads for the violent game. (Id. at 20.) Citing public complaints, the CTA ordered the complete removal of the advertisements shortly thereafter. (Id.) The maker of Grand Theft Auto IV sued the CTA in an unrelated breach of contract case, and the parties entered into an undisclosed settlement agreement in September 2008. (Id. at 21.)

In November 2008, the Chicago Transit Board approved and passed an ordinance (Ordinance 008-147), amending the CTA's advertising guidelines to prohibit "any advertisement on CTA vehicles and facilities which markets or identifies a video or computer game with an Entertainment Software Rating Board rating of `Mature' or `M' or `Adults Only' or `AO.'" (Ordinance 008-147, Ex. C to O'Keefe Decl.) In its preamble, the ordinance refers to the prevalence of youth violence in the Chicago area and states, "there is a demonstrable correlation between intensely violent video or computer games and violent or aggressive behavior ... The Authority has a substantial interest in ensuring that its assets and resources are not used to advertise violent video or computer games which may foster or encourage violent aggressive behavior." (Id.) The ordinance went into effect on January 1, 2009.

Plaintiff Entertainment Software Association is a trade association comprised of companies in the business of making, selling, and advertising video and computer games. ESA counts Take Two Interactive Software, Inc., the maker of Grand Theft Auto IV, among its members. ESA's stated purpose is to promote the business interests of its member companies, some of whom sell video games with violent or sexual content. ESA established the Entertainment Software Rating Board ("ESRB") in 1994. The ESRB, a self-regulatory body for the video game industry, assigns content ratings to video games and promulgates industry advertising guidelines. (Vance Decl. at ¶ 2, Ex A to Pl.'s Mot.) Like the more familiar film-industry system for rating movies, ESRB ratings apply a range of criteria and assign a letter-rating to indicate game content that may be inappropriate for particular age groups or audiences. The ESRB assigns the rating "Mature" to games it deems unsuitable for players under 17 years of age; it assigns the rating "Adult Only" to games with content deemed suitable only for players over 18. (Id. at ¶ 6.) Mature games may contain "depictions of violence, blood and gore, sexual content, mature themes, use of a...