The Entertainment Software Association

• Home
• About the ESA
• Become a Member
• Industry Facts
• Public Policy
  • Legal Issues
  • Supreme Court Case
  • Government Affairs
  • Intellectual Property
• Games: Improving
  What Matters
• News Room
• ESA Foundation
• Parent Resources
• Career Opportunities
• Active Play PALA+ Challenge
• Contact Us
• Report Piracy
• Privacy Policy
• ESA Canada
• Follow Us:
• 

ESA, et al., v. Blagojevich, et al.

United States Court of Appeals Seventh Circuit
ESA, et al., v. Blagojevich, et al.
November 2006

On November 27, 2006, Judge Williams, Seventh Circuit, ruled in favor of the ESA and reaffirmed the District Court ruling that granted a permanent injunction halting implementation of the Illinois Sexually Explicit Video Game Law (SEVGL). The State of Illinois appealed the district court ruling with regards to the SEVGL, but not the portion of the law that dealt with violent video games (VVGL).

In his opinion Judge Williams reaffirmed the court's observation that children have First Amendment rights stating that "history has shown the dangers of giving too much censorship power to the State over materials intended for young persons." The Court ruled that the SEVGL failed to meet the standards required by the First Amendment. More specifically, the statute's definition of "sexually explicit" failed to meet a prong of the three pronged test required by the Supreme Court for the regulation of obscene material. Judge Williams further stated that the state of Illinois "created a statute that is constitutionally overbroad" in failing to include language in the statute that the sexually explicit material taken as a whole does not have serious literary, artistic, political, or scientific value, as required by the Supreme Court test.

Judge Williams also discussed the State's exclusion of the requirement that any material in question be "considered as a whole" in determining criminal penalties. The judge used the videogame God of War to illustrate the point that the overbroad nature of the SEVGL makes "likely the prospect of criminal prosecutions for the sale of games that have social importance for minors." As expressed by the court, "[t]here is serious reason to believe that a statute sweeps to broadly when it prohibits a game that is essentially an interactive, digital version of the Odyssey."

Finally, the judge stated that the SEVGL could not survive constitutional muster because the State failed to consider other less restrictive alternatives to the SEVGL. "Most obviously, the State could have simply passed legislation increasing awareness among parents of the voluntary ESRB ratings system."

The court also affirmed the district court's holding that the SEVGL's signage and brochure requirements are unconstitutional. Judge Williams found the signage requirements overbroad, stating that "[l]ittle imagination is required to envision the spacing debacle that could accompany a small retailer's attempt to fit three signs, each roughly the size of a large street sign, into such a space."

The Seventh Circuit awarded ESA attorneys' fees for the appeal in the amount of $34,550.

Back to Top