Video Software Dealers Ass'n v. Maleng

• Decision Date: 15 July 2004
• Docket Number: No. C03-1245L.,C03-1245L.
• Citation: 325 F.Supp.2d 1180
• Parties: VIDEO SOFTWARE DEALERS ASSOCIATION, et al., Plaintiffs, v. Norm MALENG, et al., Defendants.
• Court: U.S. District Court — Western District of Washington

325 F.Supp.2d 1180

VIDEO SOFTWARE DEALERS ASSOCIATION, et al., Plaintiffs, v. Norm MALENG, et al., Defendants.

No. C03-1245L.

United States District Court, W.D. Washington, At Seattle.

July 15, 2004.

COPYRIGHT MATERIAL OMITTED

Darren H. Lubetzky, Jenner & Block (DC), Washington, DC, David J. Burman, Perkins Coie, Seattle, WA, Deanne E. Maynard, Jenner & Block, Kathleen R. Hartnett, Jenner & Block, Paul M. Smith, Jenner & Block, Washington, DC, Signe Brunstad, Perkins Coie, Seattle, WA, for Video Software Dealers Association, Interactive Digital Software Association, Washington Retail Association, Interactive Entertainment Merchants Association, International Game Developers Association, Hollywood Entertainment Corporation, Plaintiffs.

Noel Reynolds Treat, King County Prosecuting, Attorney's Office, Oma L. LaMothe, King County Prosecuting, Attorney's Office, William G Clark, Attorney Generals Office, Seattle, Carol A Murphy, Attorney General's Office, Criminal Justice Division, Jeffrey T. Even, Attorney General's Office, Laura J. Watson, Attorney General's Office, Olympia, WA, for Norm Maleng, Gary Locke, Christine O. Gregoire, Defendants.

ORDER GRANTING PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND GRANTING IN PART DEFENDANTS' CROSS-MOTION

LASNIK, District Judge.

This matter comes before the Court on "Plaintiffs' Motion for Summary Judgment" and defendants'"Cross Motion for Summary Judgment." Plaintiffs are companies and associations of persons that create, publish, distribute, sell, rent, and/or make available to the public computer and video games. Plaintiffs brought this action seeking to enjoin enforcement of RCW 9.91.180 (previously identified as Washington House Bill No. 1009, 58th Leg., Reg. Sess. (2003) and hereinafter identified as "the Act") on the ground that the Act violates the First Amendment by creating penalties for the distribution of computer and video games to minors based solely on their content and viewpoint. Similar disputes have erupted across the country as state and local governments have attempted to regulate the dissemination of violent video games to children. As of this date, no such regulation has passed constitutional muster. See Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954 (8th Cir.2003); American Amusement Mach. Ass'n v. Kendrick, 244 F.3d 572 (7th Cir.2001); Video Software Dealers Ass'n v. Webster, 968 F.2d 684 (8th Cir.1992). See also James v. Meow Media, Inc., 300 F.3d 683 (6th Cir.2002) (private party's attempt to impose tort liability based on the dissemination of video games fails in light of countervailing First Amendment interests); Wilson v. Midway Games, Inc., 198 F.Supp.2d 167 (D.Conn.2002) (same); Sanders v. Acclaim Entm't, Inc., 188 F.Supp.2d 1264 (D.Colo.2002) (same). Having reviewed the memoranda, declarations, and exhibits submitted by the parties, having considered the arguments of counsel, and having reviewed the record as a whole,¹ the Court finds as follows:

I. STANDING

As an initial matter, defendants argue that plaintiffs do not have standing to challenge the Act on any ground other than overbreadth because plaintiffs have not alleged that their First Amendment rights would be violated if the Act were enforced. If plaintiffs were not asserting personal injuries, they might bear the heavy burden of proving that there is no limiting construction that could be placed on the Act to avoid the alleged constitutional infirmity. See Broadrick v. Oklahoma, 413 U.S. 601, 610-13, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Defendants' underlying assertion is incorrect, however: plaintiffs have asserted their own First Amendment rights (Complaint at ¶ 20) and, in the context of the preliminary injunction motion, identified various injuries that they as game creators, distributors, and retailers would suffer if the Act became effective. Those potential injuries have not changed and plaintiffs have standing to challenge the constitutionality of the Act insofar as it directly affects the content and distribution of their speech. In addition, plaintiffs have standing to assert the First Amendment rights of their consumers, the minors who would be deprived of access under the Act. See Broadrick, 413 U.S. at 612, 93 S.Ct. 2908 (in the First Amendment area, the Supreme Court has "altered its traditional rules of standing to permit ... `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Dombrowski v. Pfister, 380 U.S. [479, 486, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965)]."); American Amusement Mach. Ass'n, 244 F.3d at 576-77 (allowing video game manufacturers to champion the First Amendment rights of children).

Defendants also suggest that this Court should refrain from ruling on the constitutionality of the Act until the courts of the State of Washington have had an opportunity to construe it. In the circumstances of this case (where enforcement of the Act has been enjoined), the only way the state courts would have an opportunity to interpret the Act is through the certification process. Defendants have not, however, asked the Court to certify questions to the state Supreme Court or identified issues of state law the resolution of which would overcome the First Amendment issues discussed below. To the extent defendants are arguing that the Court should abstain from deciding the constitutional issues under Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the significant risks of irreparable injury to plaintiffs' First Amendment rights while the parties wait for cases to wend their way through the state court system make abstention inappropriate. See Porter v. Jones, 319 F.3d 483, 486-87 (9th Cir.2003) ("It is rarely appropriate for a federal court to abstain under Pullman in a First Amendment case, because there is a risk in First Amendment cases that the delay that results from abstention will itself chill the exercise of the rights that the plaintiff seek to protect by suit.").

II. PROTECTED SPEECH

The party claiming the protections of the First Amendment has the burden of showing that the conduct at issue expresses some idea or thought. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 n. 5, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Communications designed to entertain the listener, rather than to impart information or debate public affairs, are eligible for constitutional protections. Time, Inc. v. Hill, 385 U.S. 374, 388, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). In evaluating a person's claim that conduct is expressive, the Court considers "whether an intent to convey a particularized message is present, and whether the likelihood is great that the message would be understood by those who viewed it." Nordyke v. King, 319 F.3d 1185, 1189 (9th Cir.2003) (citation and internal quotation marks omitted), reh'g en banc denied, 364 F.3d 1025 (9th Cir.2004).

The early generations of video games may have lacked the requisite expressive element, being little more than electronic board games or computerized races. The games at issue in this litigation, however, frequently involve intricate, if obnoxious, story lines, detailed artwork, original scores, and a complex narrative which evolves as the player makes choices and gains experience. All of the games provided to the Court for review are expressive and qualify as speech for purposes of the First Amendment. In fact, it is the nature and effect of the message being communicated by these video games which prompted the state to act in this sphere. As noted by the Eighth Circuit: "Whether we believe the advent of violent video games adds anything of value to society is irrelevant; guided by the [F]irst [A]mendment, we are obliged to recognize that `they are as much entitled to the protection of free speech as the best of literature.'" Interactive Digital Software Ass'n, 329 F.3d at 958 (citing Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948)). The Court finds that the games at issue are expressive and qualify for the protections of the First Amendment.

Defendants argue that, even if the video games regulated under the Act are expressive, they fall into one of the few categories of speech that have been historically unprotected, in this case, obscenity. Defendants correctly point out that the phrase "obscene material" is not inherently limited to sexually-explicit materials. The Latin root "obscaenus" literally means "of filth" and has been defined to include that which is "disgusting to the senses" and "grossly repugnant to the generally accepted notions of what is appropriate." See Miller v. California, 413 U.S. 15, 18 n. 2, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Graphic depictions of depraved acts of violence, such as the murder, decapitation, and robbery of women in Grand Theft Auto: Vice City, fall well within the more general definition of obscenity. Nevertheless, the Supreme Court has found that, when used in the context of the First Amendment, the word "obscenity" means material that deals with sex. Id. Only "works which depict or describe sexual conduct" are considered obscene and therefore unprotected. State statutes designed to regulate obscene material must be drafted narrowly to cover only "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value." Miller, 413 U.S. at 24, 93 S.Ct. 2607.

Defendants acknowledge that the Act does not regulate works that depict sexual conduct. Undaunted by the clear pronouncements of the Supreme Court regarding the limited scope of materials that are subject to regulation as obscene, defendants argue that the Court should expand the definition of obscenity to include...