ESA, et al., v. Foti, et al.
Middle District of Louisiana
United States District Court
November 2006
On November 29, 2006, Judge James Brady, District Court, Baton Rouge, ordered a permanent injunction to block implementation of a Louisiana statute seeking to ban the sale of violent video games to minors. Remarkably, Judge Brady issued his ruling from the bench rather than through a written order or opinion and stated that he was granting permanent injunction based on the reasoning behind the court's August ruling which granted a preliminary injunction.
In his August decision, Judge Brady wrote that the state had overlooked a series of previous cases that found that video games are protected free speech. According to that opinion, video games "….are as much entitled to the protection of free speech as the best of literature." With regard to the "social science" presented, the judge stated, "….It appears that much of the same evidence has been considered by numerous courts and in each case the connection was found to be tentative and speculative.... The evidence that was submitted to the Legislature in connection with the bill that became the Statute is sparse and could hardly be called in any sense reliable." Significantly, Judge Brady found that, "....less restrictive alternatives [which would achieve the state's goals] exist, including encouraging awareness of the voluntary ESRB video game rating system (which provides guidance to parents and other consumers), and the availability of parent controls that allow each household to determine which games their children can play."
Judge Brady also granted the ESA attorneys' fees in the amount of $91,900. In his order granting attorneys fees, he stated, "[t]his Court is dumbfounded that the Attorney General and the State are in the position of having to pay taxpayer money as attorney's fees and costs in this lawsuit. The Act, which this Court found to be unconstitutional, passed through committees in both the State House and Senate, then through the full House and Senate, and to be promptly signed by the Governor. There are lawyers at each stage of this process. Some of the members of these committees are themselves lawyers. Presumably, they have staff members who are attorneys as well. The State House and Senate certainly have staff members who are attorneys. The Governor has additional attorneys - the executive counsel. Prior to the passage of the Act, there were a number of reported cases from a number of jurisdictions which held similar statutes to be unconstitutional (and in which the defendant was ordered to pay substantial attorney's fees). The Court wonders why nobody objected to the enactment of this statute. In this court's view, the taxpayers deserve more from their elected officials."
The ESA and EMA have made an application for attorneys' fees and are awaiting the Court's decision at this time.
To view the decision in its entirety, please go to: http://www.lamd.uscourts.gov
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