GwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwD G G w _____ ____ 1 333 888 "Bloodsport and Bildungsroman - Minors' w D // | \ 11 3 8 8 First Ammendment Right of Access to D * || ____ | || | 1 333 888 Violent Gaming" by Yancey Slide * G || || \ / | || | 1 3 8 8 issue #138 of "GwD: The American Dream G w \\___// \/\/ |____/ 111 333 888 with a Twist -- of Lime" ***** 12/31/03 w D D GwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwD --- -- - -- --- -- - -- --- -- - -- --- -- - -- --- Current Controversy The field of computer and video gaming is one of the largest and fastest growing segments of the entertainment industry.1 As the field grows, its growing pains as a nascent industry are compounded by an ongoing debate over the content of popular games and control over access to those games by minors. The controversy, which has also enveloped violent and sexually explicit movies and literature, is compounded both by the particularly interactive nature of computer and video games and by the relative infancy of the medium. The core questions surrounding the impact of violent entertainment in more traditional media - its effect on children and the possible cultural desensitization to violence and licentious behavior - are paired with a new question: does the interactive nature of electronic gaming constitute a substantive difference that sets the new medium apart from the traditional calculus of First Amendment freedoms or should electronic gaming be regulated under the same framework that governs violent and explicit films and other traditional media? This question has been answered to varying degrees by the gaming industry, by state and local legislatures, and by the courts. Game developers and publishers have adopted a self-regulatory ratings system similar to that used by films.2 The legislative response to the perceived threat of violent gaming has been more stringent, often rejecting self-regulation and opting for stricter regulation. States and municipalities have been experimenting for several years with a variety of laws designed to curtail minors' access to violent games.3 These legislative efforts vary widely in the scope of their coverage but regulate access to violent and explicit interactive games separate from, and more strictly than, more traditional media.4 Federal district courts, responding to First Amendment challenges to these regulations, have had a mixed response; initially, two high-profile challenges to access regulations were rejected by district courts before both cases were reversed by their respective circuits.5 In response to the seemingly clear position taken by appellate courts, district courts are receiving First Amendment challenges to access regulation more warmly.6 Despite this ongoing caselaw development and the seemingly unambiguous position of the Seventh and Eighth Circuits, the legislative effort to restrict access to electronic games continues apace. The "Protect Children from Video Game Sex and Violence Act of 2003," currently pending before the House Subcommittee on Crime, Terrorism, and Homeland Security, criminalizes retailing or renting any video game that "depicts nudity, sexual conduct, or other content harmful to minors."7 The bill has generated a great deal of cultural and media controversy; the grassroots Lion and Lamb Project, an organization dedicated to promoting nonviolent entertainment, is organizing supporters of the resolution.8 Other influential commentators, such as the editorial staff of the Boston Globe, are also reaching out to encourage the legislation.9 At the same time, leading pundits such as the libertarian Cato Institute vilify the act as "none of government's business."10 The ongoing debates among pundits, courts, and legislators may stem from a more fundamental controversy over the nature of interactive electronic entertainment. As electronic games become more prevalent and the industry grows, there is a critical need for a solid understanding on the legislative, legal, and cultural levels as to what regulations appropriate and Constitutionally permissible. This, in essence, is the most important set of issues surrounding electronic gaming: how it relates to more traditional media and whether it can and should be regulated in the same ways. The practical controversy emerging from this issue is whether the positions taken by the Seventh and Eighth Circuits are correct, and whether they should be adopted nationally. The ongoing debates over access regulations provide an effective measure for these questions, which are not likely to be definitively answered in the near future. Industry and Cultural Setting The electronic gaming industry is rapidly increasing in size and even more rapidly increasing in prominence and public visibility. The industry's representative association, the Entertainment Software Association, estimates that sales more than doubled between 1995 and 2002.11 The Association claims that the industry is growing at 15% annually, faster than the 6% rate for the U.S. economy overall and "a faster rate than other major American industries including: motion picture production, distribution and allied services; amusement parks; consumer electronics manufacturing; and physical fitness facilities."12 The economic statistics are impressive and undeniably reflect an enormous growth in the field, but the impact and prevalence of electronic gaming may be better assessed with the Association's calculation of the industry's cultural saturation. A January 2003 poll conducted by KRC Research for the ESA showed consumers plan to keep spending on computer and video games in this year, with 41% of all Americans, and almost two-thirds (63%) of parents, saying that they plan to purchase at least one game in 2003. In addition, a majority of Americans (56%) under the age of 45 plan to buy at least one computer or video game this year; while 37% of 45 to 54 year olds, and 26% of adults ages 55 to 64, also plan to buy at least one game this year.13 These figures, if accurate, reflect the tremendous amount of exposure that electronic gaming, once a niche industry, has acquired.14 The numbers also suggest the level of penetration the industry has achieved; forty-one percent of Americans are buying enough games to provide two for every household in the United States.15 Industry statisticians seem to be consciously using the demographics of gamers to dispel popular images of game players as predominantly underage and overwhelmingly male. The ESA notes in the top three of its "Top Ten Industry Facts" that of the fifty percent of Americans who play electronic games, the average age is twenty-nine and thirty-nine percent are women.16 Almost all of the industry facts and press materials presented by the industry association are intended to counter unfavorable perceptions and promote an image of a conscientious industry. The ESA notes that sixteen of the top-selling games in 2002 were rated "E" ("content that may be suitable for persons ages 6 and older") or "T" ("content that may be suitable for persons ages 13 and older").17 The statistics presented by the industry vary slightly according to the schism between computer and video games, highlighting a crucial aspect of the electronic entertainment industry.18 While the largest publishers and content creators often distribute games across platforms, the majority of computer and electronic games exist solely in the niche for which they were created. The computer gaming market takes broad advantage of the multiplicity of peripheral devices that exist to support personal computer software but also contends with the relatively expensive costs of maintaining an up-to-date personal computer. Video gaming consoles, while less flexible than personal computers, can support cutting-edge games at a much lower cost due to the dedicated nature of the hardware.19 The specialization of the hardware also means, however, that many publishers of video games cannot afford the costs of publishing a title outside of a specific console, and comparatively few games are published for both a console system and personal computers.20 The effect of this dichotomy is to create two similar markets that cross in many places but are substantially different in key areas. Computer gamers, as distinct from video gamers, tend to be older and are becoming a sexually mixed demographic. Video games are still largely the province of younger consumers, and the population is overwhelmingly male.21 The split may contribute to the uneven distribution of violent and explicit content: the top two best selling games of 2002 in the video game market, "Grand Theft Auto 3" and "Grand Theft Auto: Vice City" are both rated "M" for Mature.22 By contrast, none of the top ten best-selling computer games for the same period were rated for mature content.23 The disparity in content may reflect the more mature tastes of the somewhat older computer gaming market. It may also reflect the generally more complex nature of computer games, which take advantage of the broader range of input devices and peripherals available to the more complex host machines. The disparity in violent and explicit content between these markets is not taken into account by any of the current or pending legislative efforts to ban minor access. Most bills lump computer and video games together into a monolithic electronic gaming category or fail to acknowledge any distinction whatsoever.24 The most recent legislative efforts to attempt a nuanced control of distribution distinguish between genres rather than markets. In California, a freshman state assembly member is planning to introduce legislation restricting the sale of games "that visually depict serious injury to human beings in a manner that is especially heinous, atrocious, or cruel" to minors.25 The proposed legislation, according to press reports, focuses especially on "first-person shooter" games, "in which the player operates through the eyes of the character."26 This distinction would be extremely difficult to make in a legislative context; the two top-selling video games of 2002, both titles in the "Grand Theft Auto" series, are both violent and sexually explicit but would fall outside of the "first person shooter" distinction as the player observes the character from an over-the-shoulder third person perspective.27 The persistent legislative effort to reign in violent and explicit games stems from a pervasive and extremely common perception that such media is a strong negative influence on minors. There is a plethora of sociological data and evidence supporting this view, as well as the opposite contention that violent and explicit games have little effect, or no more so than movies, on underage consumers. A recent note in the Indiana Law Review provides a useful primer on the latest arguments that the gaming industry has a deleterious effect on minors.28 The contrary case is made by the libertarian Cato Institute, among other sources: "[T]here's little evidence of a link between video games and aggressive youth. While the video game industry was exploding between 1994 and 2000, juvenile (ages 15-17) violent crime arrests dropped by 44 percent and young adult (ages 18-24) violent crime arrests dropped by 24 percent, according to the U.S. Department of Justice."29 The most that can be said for the conclusiveness of the research is, as Phillips notes, that "there is little consensus on the effect of violent games," and "`[t]he empirical literature on the effect of exposure to video game violent [sic] is sparse.'"30 The sparseness of data on the effect of exposure to game violence leads inexorably to an editorial tone to any commentary on the subject. One of the most commonly cited and prolifically outspoken sources on the injurious effects of licentious electronic games is Lt. Col. David Grossman, a self-described "killologist" and author.31 Lt. Col. Grossman's theories on the effects of violence in electronic games are widely disseminated and used in support of legislative efforts to bar minors' access to the type of material he questions. Virtual Violence highlights one of the core arguments of the somewhat pseudoscientific theory: Applying his knowledge of killology to violent video games, Grossman has discovered a "phenomenon that functions much like AIDS," which he labeled "AVIDS-- Acquired Violence Immune Deficiency Syndrome." Grossman explains that while AIDS has never killed anybody, "[i]t destroys your immune system, and then other diseases that shouldn't kill you become fatal." Similarly, while violent video games do not kill people, "they destroy your violence immune system and conditio[n] you to derive pleasure from violence. And once you are at close range with another human being, and it's time for you to pull that trigger, Acquired Violence Immune Deficiency Syndrome can destroy your midbrain resistance."32 In addition to the academic application of Grossman's work, he and the Killology Research Group, which distributes much of his writing, are active in courting media appearances.33 The effect is to provide significant support to grassroots efforts to restrict gaming access. Grossman's writing is cited approvingly by such active organizations as The Lion & Lamb Project.34 Grossman's work is also used as fundamental research underlying the annual "Report Card" issued by the National Institute on Media and the Family.35 The level alarm exhibited in their reports has increased markedly since they began in 1998. The first report focused mainly on the effects of violent games, exhibiting Grossman's research and mentioning the prevalence and preference of youths for such entertainment only in passing.36 By the 2001 report, the authors had become concerned with nascent reports of "compulsive" game playing in minors: While research on compulsive video game playing is just beginning, some disturbing trends appear to be emerging. There is some empirical evidence suggesting that perhaps as many as one in five adolescents who play video games may exhibit symptoms of compulsive game playing. . Compulsive game playing is something that will bear closer attention.37 By the 2002 report, reports of compulsive behavior had become a warning of rampant addiction, based on the same empirical research cited in the previous year's report. "Estimates of the numbers of addicted children and adolescents vary, but studies are beginning to show patterns of play behaviors that are similar to other addictions. In a study of 387 12- to 16-year-olds, 20 percent were classified as currently addicted to playing computer-based video games, and one in four adolescents had been addicted at some point in their lives."38 The report warns of the dangers of the perceived epidemic of addiction, pointing to a media account of a suicide blamed on computer game addiction.39 The figures and theories at the forefront of the cultural resistance to violent and explicit games have created a vibrant backlash from media and academic sources as well as from the gaming industry.40 One of the leading critics of the use of scientific studies to justify access restrictions is Dr. Henry Jenkins, who argues that the usage of poorly construed studies is driven by politics rather than science. The field of "media effects" research includes around 300 studies of media violence. But most of those studies are inconclusive. Many have been criticized on methodological grounds, particularly because they attempt to strip complex cultural phenomena down to simple variables that can be tested in the laboratory. Most found a correlation, not a causal relationship, which means they could simply be demonstrating that aggressive people like aggressive entertainment. Only about 30 of those studies deal with video games specifically. And if you actually read the reports, most responsible researchers are careful to qualify their findings and are reluctant to make sweeping policy recommendations. None of them buy a simple monkey-see, monkey-do hypothesis. But the activists strip aside any qualifications, simplifying their conclusions and mulching together all of those contradictory findings. What they want is the aura of scientific validation, since that provides cover to all of their liberal allies who wouldn't support the Moral Majority but love to sound off about cultural pollution.41 Dr. Jenkins further illustrates the cultural clash between critics of violent and explicit games and himself by detailing an on-air confrontation with Daphne White, a representative of The Lion and Lamb Project, as a guest on "Donahue."42 Challenged to defend "Grand Theft Auto 3," Jenkins replied: This isn't a virtual shooting gallery. Unlike earlier video games that give you no way forward except to slaughter everything that moves, this game offers an enormously expansive and responsive landscape. Certain plot devices cue you about possible missions, but nothing stops you from stealing an ambulance and racing injured people to the hospital or grabbing a fire truck and putting out blazes or simply walking around town. This open-ended structure puts the burden on you to make choices and explore their consequences. If you choose to use force, you are going to attract the police. The more force, the more cops. Pretty soon, you're going down. GTA3 is only as violent as we choose to make it and, used wisely, the game can tell us a lot about our own antisocial impulses. White dismissed all of this as "purely technical."43 Challenged by White to identify games with positive effects, Jenkins points to several titles designed to both force players to make ethical choices and to present their effects in the game. This theme is echoed in Dr. Jenkins' comments in the context of an interview with Penny Arcade, a popular online comic strip and commentary forum primarily dedicated to computer and video gaming. He argues that even the most violent games have redeeming factors, and that the industry is intentionally engaged in designing titles that raise significant issues. [G]ame designers are also in the business of the long- term development of their medium and long-term profits depend upon them diversifying their audience and achieving a certain level of artistic accomplishment with their games . When I play Grand Theft Auto 3 and I take out a baseball bat and bludgeon a whole bunch of people, I have to say that I did that, because I had the choice not to do that. We should get games to the point where the players are reflecting on the choices they make. "Black & White" is another example of this, everything you do has consequences based on your choices in that world.44 The industry, as indicated by the prevalence of such design decisions, is reacting to the concern over violence in games by incorporating that discussion into the product itself. The initiative and the spirited discourse it produces in the real world suggest strongly that games can and do communicate significant ideas through their design. The discussion as to the role of gaming in informing and highlighting ethical and moral quandaries is complex and prevalent in many commentaries. It is eclipsed, however, by the vehemence and vitality of the debate over whether games are harmful to minors and whether minors should have their access to such products curtailed. The current state of this dialogue among popular commentators, and in many ways among academics and legislators, is perhaps best expressed by the artists and pundits of Penny Arcade: (45) The ongoing debate is obviously intense and often lively, driving the debate over a variety of access-restricting laws and gaining strength and speed from the judicial response to those efforts. Legal Setting The predominant cases controlling the question of access restriction to violent and explicit games are the Kendrick and IDSA lines of cases, in which laws in Indiana and Missouri were upheld by district courts before being overturned by their respective circuits.46 The logic the district courts followed varied; Kendrick I and IDSA I are sharply varying decisions with respect to the tack and depth of their reasoning. Each highlights a significant vein of thought in the battle over the characterization of electronic games as protectable free speech. The associated appellate opinions overturning each of the district rulings set the prevailing climate in this characterization. The cases are critical to an understanding of the state of the law with respect to restricting minors' access to violent and explicit games and are deserving of individual analysis. Kendrick I and II The first case to solidly address minors' rights to access violent and explicit games under the First Amendment was Amusement Machine Association v. Kendrick. Although reversed by the Seventh Circuit, it pursued in many ways the most in-depth analysis of the issues at hand. Its reasoning was briefly addressed but ultimately rejected by the IDSA I court but has helped to inform more recent attempts to install legislative barriers to game access. Plaintiffs in Kendrick I sought to overturn a local ordinance barring "the display and operation of coin-operated amusement machines (primarily video games) deemed `harmful to minors' if they include either `strong sexual content' or `graphic violence'" as defined by the ordinance.47 The plaintiffs sought, and were denied, preliminary injunctive relief on the theory that the restrictions on violent material were unconstitutionally vague content-based speech restrictions.48 The plaintiffs, manufacturers of the games in question, were successful in having the ordinance stayed pending appellate review of the ruling; that review vindicated their position.49 The court begins with a lengthy analysis of the ordinance in question before moving on to its two core issues.50 This analysis is worth noting for two reasons. First, the ordinance in question applies solely to publicly situated games; in practical terms, to coin-operated arcade games.51 This narrow approach of the ordinance does not diminish the significance of the ruling or its logic, as the reasoning there is equally applicable to video and computer games sold or rented for use in the home.52 The analysis also notes that there was a surprising amount of legislative history attached to the ordinance and gives some indication of what that material included. The opinion indicates that in addition to public commentary from parents' groups and industry representatives, "several reports on the subject of children and violence in the media were made available" to the Public Policy Committee of the City-County Council of the City of Indianapolis and Marion County.53 The inclusion of this material in the debate preceding enactment of the ordinance indicates the impact of commentators and organizations such as those described above; the industry and cultural setting of electronic entertainment has a significant real-world effect on such regulatory legislation. The district court extracted two central issues from the controversy in Kendrick I. The underlying issue, which the court disposed of relatively quickly, was the question of whether violent electronic games could be construed as a form of expression protected by the First Amendment.54 While the court did not find this to be a difficult issue, itsreasoning later became significant in the IDSA line of cases. Second, the court addressed whether the obscenity standards espoused in Ginsberg v. State of N.Y. were applicable to a regulation of violent electronic games.55 This issue, reflecting the bulk of the opinion, is less important given the Seventh Circuit's dismissal of the reasoning. The district court's application of Ginsberg does illustrate, however, the sophisticated reasoning being applied to such regulatory efforts. The underlying characterization of the district court's ruling is nuanced if ultimately unpersuasive. It provides a brief but thorough listing of cases from the 1980s characterizing the expression inherent in games. Among other state supreme court opinions, the Kendall I court identifies a pair of 1983 Massachusetts Supreme Judicial Court opinion rejecting arcade games such as "Mrs. Pac-Man," "Donkey Kong," and "Zaxxon" as protected expression.56 The Massachusetts court opined in a related case, also cited by Kendall I: From the record before us, it appears that any communication or expression of ideas that occurs during the playing of a video game is purely inconsequential. Caswell has succeeded in establishing only that video games are more technologically advanced games than pinball or chess. That technological advancement alone, however, does not impart First Amendment status to what is an otherwise unprotected game.57 This holding was characteristic of similar cases that arose and were disposed f in the 1980s in several states.58 The court recognized that these cases no longer reflected an adequate approach to contemporary games, given the striking evolution in technology and design.59 The field was left fallow during the 1990s, with few cases arising to address the speech characteristics of games.60 This left Kendrick I itself as the first on-point challenge to the prevailing logic that games were, at most, in a gray area of jurisprudence possibly outside of the First Amendment.61 The technology behind the regulated games had matured greatly, and the Kendrick I court properly approached the issue as a novel case, separate from (although perhaps informed by) earlier cases predicated on vastly simpler games. The court noted that the prevailing standard promulgated by the Supreme Court required nothing more than a loose analysis particular to the medium. "Each medium of expression ... must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems."62 With this charge in mind, the court focused primarily on the plaintiff's presentation of the "Gauntlet" series of games as an example of protectable speech in the medium. Although the plaintiffs merely described, rather than demonstrated, the game to the court, it found that the simplistic plot (summarized in a single brief paragraph) along with the visual art could constitute protected material.63 Similarly, the court noted that other games discussed by the parties contained elements of plot and character that indicated "at least some degree of First Amendment protection," which the defense conceded.64 Having determined that some games indisputably carried First Amendment protection, the court proceeded to analyze several games which the city contended did not. These included, notably, "first person shooter" games of the genre most commonly identified as harmful by activists.65 Pointing out the limited plot elements and other speech characteristics of such games as "Ultimate Mortal Kombat 3," "Maximum Force," and "The House of the Dead 2," the court found that some of the regulated games did not rise to the level of protected speech. "The court has no difficulty determining that any speech elements of [such games] are relatively inconsequential--perhaps even so inconsequential as to remove the game from the protection of the First Amendment."66 The effect of this analysis was to find that electronic games could certainly be protected speech, but that in a case-by-case analysis, many would be too simple or one-dimensional to convey sufficient expression to deserve protection. Having determined that the regulation of protected speech was the issue at hand, the court relied heavily on Ginsburg to apply a fairly strict scrutiny. It required the city have a compelling interest and tailor its regulations to advance that interest.67 The court fell to sorting the parties' respective scientific evidence but disposed of the issue by noting that the city reasonably relied on appropriate data: The social science data in the record reflect some uncertainty, but the data also indicate that the City had a solidly reasonable basis for enacting the Ordinance. The Ordinance's legislative history also makes it clear that the Ordinance is the product of considered legislative judgment as to both the problem and the means chosen to address it.68 Given the impossibility of obtaining definitive scientific proof of the reasonableness of the city's fears, the court determined that it was sufficient that the city's legislative effort was based on more that more than "mere legislative conjecture and surmise."69 Again, the court's focus shows how essential the widespread debate over the harmfulness of electronic gaming was in influencing the lawmakers. The remainder and bulk of the Kendrick I opinion is dedicated to determining the extent to which violence may be considered obscenity for the purpose of the regulation of speech. The court decided that violence could reasonably be lumped into obscenity standards, pointing out in its conclusion, "It would be an odd conception of the First Amendment and "variable obscenity" that would allow a state to prevent a boy from purchasing a magazine containing pictures of topless women in provocative poses, as in Ginsberg, but give that same boy a constitutional right to train to become a sniper at the local arcade without his parent's permission."70 The Seventh Circuit disagreed, ruling in Kendrick II that "[v]iolence and obscenity are distinct categories of objectionable depiction."71 Relying on this characterization, the court determined that the Ginsberg standard, which does not require scientific evidence of the harmfulness of explicit materials, was not applicable.72 Judge Posner ruled that without such evidence in record, the statute must fall as an impermissibly broad regulation; the case was remanded with instructions to enter a preliminary injunction and indicated that a permanent injunction was the likely outcome of further proceedings. The decision overturned the district court's creative assignment of violent images to the standard obscenity calculation and applied standard speech protection analysis to the ordinance. This is in many ways the most important feature of the Kendall II opinion - it clearly outlines the circuit's position on the speech nature of electronic gaming. Posner's dicta clearly indicate that he places gaming in the same space as more traditional media; the court briefly considers and then decisively disposes of the idea that the interactive nature of games excerpts them from other forms of communication: Maybe video games are different. They are, after all, interactive. But this point is superficial, in fact erroneous. All literature (here broadly defined to include movies, television, and the other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own.73 The court's dicta here and elsewhere seems exquisitely clear; Posner compares the interactivity of electronic games to the works of Charles Dickens and James Joyce and extols the positive cultural message of "Ultimate Mortal Kombat 3."74 For all the clarity of this language, however, it is largely dicta; the holding of the case turns on the application of Ginsburg and relatively quotidian obscenity analysis.75 IDSA I and II The Seventh Circuit's failure to solidly address the speech nature of electronic games may have provoked the court in IDSA I to go further than necessary in ruling that games could not be considered speech. The IDSA I case arose under circumstances similar to those that produced Kendrick. The St. Louis County Council, wishing to restrict the access of minors to violent and sexually explicit arcade, video, and computer games, passed an ordinance essentially criminalizing the sale or rental of a game known to be "harmful to minors," and to segregate arcade games meeting the same criteria.76 Although the statute was further reaching than the Kendrick ordinance, its effects and implications were similar. The Interactive Digital Software Association, a collection of manufacturers, publishers, and retailers, sued to enjoin the operation of the statute. They failed before the district court, which "considered and upheld the constitutionality of the ordinance in the course of ruling on the plaintiffs' motion for summary judgment [and] sua sponte dismissed the case."77 The Eighth Circuit balked at this broad ruling and overturned the district court. IDSA I was a higher-visibility case than Kendrick from the very start due to the timing of the case and the relatively high profile of the judge.78 Kendrick had reached fruition before the IDSA I opinion issued; the relevant questions were aired and maturing, giving interested parties time to gear up their responses to the results in Kendrick. By the time the case reached the Court of Appeals, prominent interest groups such as The Lion and Lamb Project had mobilized and filed amici briefs of their own.79 The increased attention may also have stemmed from the further-reaching nature of the opinion, which was interpreted by many commentators as a flat holding that games could not rise to the level of speech. The IDSA I court ultimately ruled that even if games were speech, the ordinance would be valid under strict scrutiny as the County had a compelling motive in protecting children and narrowly tailored its regulation to that effect.80 On these grounds, it felt secure in denying the IDSA's motion for summary judgment and dismissing the case even if it had been determined that games were deserving of strict scrutiny as protected speech. Rather than resting on this conclusion, however, the court clearly and unequivocally rejected the idea that games could be speech; this seemingly unnecessary analysis prompted a great deal of commentary and makes Limbaugh's opinion significant even though it was rejected by the Eighth Circuit.81 The district court began with the proposition that "In order to find speech, there must exist both an intent to convey a particularized message and a great likelihood that this message will be understood."82 It applied this standard to the reasoning and rulings of a number of cases drawn from the 1980s, finding that "a video game, like a pinball game, a game of chess, or a game of baseball, is pure entertainment with no informational element."83 Relying partly on this line of reasoning, as well as other cases from the same time period, the court analogized electronic games to bingo and other physical games.84 It might seem odd that the Court is comparing video games to games of Bingo, however, most of these simple games can and have been created in video form. The Court has trouble seeing how an ordinary game with no First Amendment protection, can suddenly become expressive when technology is used to present it in `video' form.85 The court's holding that electronic bingo could not convey significant information was quickly applied to electronic games as a whole. IDSA I did not follow Kendrick I in assuming that the medium of electronic games could contain titles that were protected alongside those that were not. Rather, Limbaugh announced, "This Court has difficulty accepting that some video games do contain expression while others do not, and it finds that this is a dangerous path to follow."86 The court adopted the position that novel media should be assigned protected status when appropriate altogether or not at all.87 Under this standard, the county's tactical approach to demonstrating the concept of an electronic game to the judge proved to be a sweeping success. The IDSA, attempting to show the court that games could present significant information that would be understood by the users, presented as evidence scripts and other development material in an attempt to analogize electronic games to movies and literature.88 The court found this material utterly unpersuasive in a rather unusual train of reasoning. The scripts, the court decided, might be considered protected speech on their own. The products enacting those scripts, however, would have to stand or fall without regard to such material. The Court admits that these "scripts" were creative and very detailed. However, almost every new creation and/or invention, starts as a "creative concept in the minds of the [ ] developers, who brainstorm, collaborate, and sketch scripts." Every product put on the market came from a creative concept. Most of the developers had to write down their ideas, and had to sketch pictures in order to convey their ideas to others working on the project. However, this "background" expression does not make every automobile, gadget, or machine created, a form of expression. . Plaintiffs claim that the final product contains "extensive plot and character development." However, plaintiffs did not show the Court the final product, the video game, and the issue in this cause of action is whether plaintiffs' video games are a form of expression, not whether plaintiffs' "scripts" are a form of expression. The Court must look at the video games in their context, in the environment in which they are presented.89 The plaintiffs' failure to present an actual game, or even recorded footage, to the court opened the door for the defense to set the stage for Judge Limbaugh's reasoning. Given an effectively blank check to show the court what an electronic game looks and sounds like, the defense creatively and effectively constructed a presentation that was crucial to the court's sweeping ruling that games could not be cast as protected speech. St. Louis County presented the court with a videotape containing selected footage from four different games, which the court identified as "`The Resident of Evil Creek', `Mortal Combat,' `DOOM,' and `Fear Effect.'"90 It may reflect on the quality of the court's analysis that of the four titles named, only two are correct. The court presumably witnessed footage from "Resident Evil" and "Mortal Kombat." While minor errors, they were widely and often derisively commented upon.91 The games chosen for this highly selective lineup seem to have been selected not only for violent and relatively simplistic content, but also for their age. Each of the titles presented by the county was at least five years old.92 The effect of this selection, in the words of Dr. Jenkins, was to suggest a static rather than evolving medium.93 The influence of this selection bias may be apparent in the court's acceptance of cases from the 1980s dealing with antiquated games as meaningful commentary on the systems and titles at issue in 2002; this approach was rejected by Kendrick I as unrealistic.94 Having decided that electronic games must be protected as speech or excluded from this category altogether as a medium and internalized a conception of such games as simplistic and unevolving, the court found that the plaintiffs "failed to meet their burden of showing that video games are a protected form of speech under the First Amendment."95 While this finding is not necessarily a judicial holding that games can never rise to the level of protected speech, the lengthy reasoning and seemingly extraneous nature of the finding suggested to many observers that Limbaugh had seized an opportunity for judicial commentary.96 The analysis is certainly the fulcrum of the opinion, and carries much of its force in setting the tone for later litigation and commentary. It is, however, unnecessary to the final ruling of the court. IDSA I determined that even if the IDSA had shown that games were protected speech, strict scrutiny would fail to implicate the county's ordinance as an unlawful content-based regulation. The court found that the testimony presented a trial, notably testimony from a professor of psychology and an elementary school principal, established "that the County has compelling interests in regulating the distribution of violent video games to minors."97 Combined with a finding that the ordinance was narrowly tailored, allowing parents to easily give their children consent to access violent gaming materials, Judge Limbaugh determined that the regulation would survive strict scrutiny even if he had not judicially determined that such scrutiny was unwarranted.98 The Eighth Circuit determined that that the district court erred in denying the IDSA's motion for summary judgment.99 Drawing heavily on Judge Posner's Kendrick II opinion, the circuit clearly determined that electronic games cannot be excluded as speech in an almost brutally brusque opinion. "Our review of the record convinces us that these `violent' video games contain stories, imagery, `age-old themes of literature,' and messages, `even an 'ideology,' just as books and movies do.'"100 Strongly echoing the Seventh Circuit, IDSA II noted explicitly that interactivity made electronic games more analogous to protected literature, rather than less.101 Having succinctly overturned the district court's finding on the need for strict scrutiny, the circuit proceeded to note that the ordinance could not survive such an examination due to a failure to show a compelling interest. "[W]hen the government defends restrictions on speech `it must do more than simply posit the existence of the disease sought to be cured.'"102 The circuit did not find persuasive scientific evidence in the record. It called the testimony of the county's psychologist a "vague generality," and characterized the remainder of the evidence as "the conclusory comments of county council members; a small number of ambiguous, inconclusive, or irrelevant (conducted on adults, not minors) studies; and the testimony of a high school principal who admittedly had no information regarding any link between violent video games and psychological harm."103 The circuit court's opinion concludes with an almost mocking tone, denying that the county has an interest in supporting parental controls superior to the first amendment rights of minors: "To accept the County's broadly- drawn interest as a compelling one would be to invite legislatures to undermine the first amendment rights of minors willy-nilly under the guise of promoting parental authority."104 The Eighth Circuit's opinion is short, simple, and almost brutally efficient in overturning Judge Limbaugh's ruling. It clearly and concisely finds that creative works presented in the context of an electronic game cannot be denied First Amendment protections as a result of the medium. As a recent opinion, commentary is somewhat limited; the clear and simple reasoning of the circuit, however, and its strong support of the similar Seventh Circuit ruling, is an unambiguous indicator that future litigants will face an uphill battle when arguing against the speech characteristics of games. The issue is almost certain to be relitigated; access regulations are being proposed and drafted in a number of states, and national legislation has under committee review in the House of Representatives.105 Legal Policy The Protect Children From Videogame Sex and Violence Act of 2003, currently pending before the House Subcommittee on Crime, Terrorism, and Homeland Security is an eidolon of misguided legislation that impermissibly burdens the First Amendment rights of minors.106 The legislation, based on the same social pressures that drove the regulations at issue in Kendrick and IDSA, follows the logic that the circuits discredited in those cases. Both appellate decisions rightly found that electronic games as a medium are fully capable of rising to the level of protected speech. The relevant standards in regulating speech based on its content are drawn from R.A.V. v. St. Paul and applied in both Kendrick II and IDSA II.107 R.A.V. essentially requires narrow tailoring and a compelling government interest to justify content-based regulation. These standards apply even when regulating the access of minors; while their rights may not be coterminous with adults' rights, it is not contested that the do have First Amendment rights.108 H.R. 669 and the arguments advanced in favor of it and similar legislation provide the best possible case for such regulations, but fail on both points. The interest offered by H.R. 669's preambulatory language and by the defense in both Kendrick and IDSA is the government's interest in keeping minors from harmful material and assisting parents in protecting their children. These justifications are not inherently invalid. Certainly, if playing violent games had a discrete, definable, and observable effect on children the interest would be strong. If children who played violent games were twice as likely to develop violent antisocial tendencies as other children, the interest would be undeniably compelling. Research has not shown such a powerful effect, however. While there is no consensus, much of the research cited in favor of the St. Louis and Indianapolis ordinances was later discredited, or shown to be woefully inadequate to demonstrating a compelling state interest. The Eighth Circuit noted that St. Louis relied on "a small number of ambiguous, inconclusive, or irrelevant (conducted on adults, not minors) studies...and the testimony of a high school principal who admittedly had no information regarding any link between violent video games and psychological harm."109 A great deal of the research on both sides of the issue is profit-driven; Lt. Col. Grossman's "Killology Research Group" sells his books and several series of audio and video tapes through its website.110 The same accusation is leveled at prominent researchers such as Dr. Jenkins, whose research has in some cases been subsidized by the gaming industry.111 The state of the art in understanding the effect of gaming violence on children is extremely muddled and unclear, and it seems impossible to assert a compelling interest based on indeterminate and often biased studies. While H.R. 669 makes no particular effort to overcome this hurdle, declaiming simply "The Nation has a compelling interest in [regulating access]," the county defendants in IDSA I drew up an original and highly effective argument in support of their claimed interest. In addition to the scientific evidence that was later rejected by the courts, the defense pointed to the voluntary ESRB rating system employed by the gaming industry.112 If the industry is motivated enough to employ a system noting which games are not recommended for minors, the county reasoned, then it must believe that there are deleterious effects implicit in violent and explicit games. This argument was incorporated into the preambulatory text of H.R. 669.113 Noting that games carrying the ESRB's "Adults Only" rating are not recommended for consumption by anyone under the age of eighteen, the court insisted that "[f]or plaintiffs to now argue that violent video games are not harmful to minors is simply incredulous."114 The county successfully buttressed its scanty scientific evidence with the plaintiff's self-regulatory scheme. While this tactic is creative, it failed to move the appellate court. The Eighth Circuit did not find it persuasive, however. IDSA II noted that a compelling state interest must be supported in such a case with solid evidence; "Where first amendment rights are at stake, `the Government must present more than anecdote and supposition.'"115 Whose anecdote and supposition is unimportant; unless the ESRB's rating system is based on reliable evidence that supports the challenged state regulation, it is no more admissible as proof of a compelling interest than the state's own unsupported assertions. The best arguments for a compelling government interest fail to meet the burden illustrated by the Seventh and Eighth Circuits. The most significant proposed regulation rests its alleged interest on uncertain science ("six of the Nation's most respected public health groups...found that viewing entertainment violence can lead to increases in aggressive attitudes, behaviors, and values, particularly in children"), a vaguely asserted public belief ("The Nation has a compelling interest in [regulating minors' access to violent games]"), and an even more vaguely asserted belief on the part of industry ("ratings and content descriptors...reflect the notion that certain video and computer games are suitable only for adults").116 As shown, there is no scientific consensus that violent games equate to violent behavior; no such contention has survived in court, and barring significant advances in the research it is unlikely that it will in the near future. Additionally, it is explicitly clear that an ambiguous declaration that a compelling interest exists, or that any consensus exists without a fairly definite showing, is insufficient to sustain an actual interest compelling enough to override the First Amendment rights of minors. Even if a showing of compelling interest were possible, no currently proposed legislation is narrowly tailored enough to survive the standards applied to content-based regulations of speech.117 The operative language of H.R. 669 is extremely simple. It reads, in its entirety, "Whoever sells at retail or rents, or attempts to sell at retail or rent, to a minor any video game that depicts nudity, sexual conduct, or other content harmful to minors, shall be fined under this chapter."118 This language is essentially similar to the regulations at issue in both Kendrick and IDSA, and just as the scope of the local ordinances at issue increased from Kendrick to IDSA, H.R. 669 is the broadest yet of any legislative effort.119 The vagueness of these standards is apparent in the language of 2732; rather than expressly regulating violent content, "other content harmful to minors" is expanded through the act's definitions to include graphic violence, "the visual depiction of serious injury to human beings, actual or virtual."120 This extremely broad language would certainly include in its comprehensive sweep games that, at first blush, hardly appear offensive. "Black & White," a game commonly used as an example of the complex philosophical and moral issues games are capable of raising in order to challenge the player on an intellectual level, includes as part of its design the ability to injure or kill virtual villagers. While its content would place it under H.R. 669's access restrictions, it is rarely if ever challenged as a title harmful to minors. Rather, it is often cited as the paragon of beneficially stimulating games, one of a class of titles designed to pose a series of ethical challenges and present the results of the player's actions in-game.121 The ability of games to reach significant moral and ethical quandaries as part of their design is often overlooked by critics. Dr. Jenkins argues that the initiative is a critical part of the function of games: We need our story-tellers and artists to help us think about the nature of violence. Having said that, the question, then, is not, "Can we get rid of violence in entertainment?" but rather, "How will entertainment deal with violence?". It's a separate question - Can we make violence in games more meaningful and in a way that forces the player to reflect on the nature of violence and the darker sides of their own personalities. I don't think this is overly ambitious at all. There are already games that have a piece of this in them. Look at "The Sims" and the mourning function there. A character dies and the other characters mourn the loss. Games are the only medium where the consumer can truly feel guilt. If I watch a movie and something bad happens, I wasn't the one who did it. I can separate myself from the character and say, "That's a horrible person". Restricting access to games under this theory of social significance would not only fail to protect minors, it would harm them by lopping off an inarguably impressionable segment of the population from a useful tool for socialization and learning. If games have the teaching and training effect that critics allege, then surely it is equally important that sophisticated and intellectually stimulating titles reach all segments of the market; the broad and sweeping restrictions in the currently proposed legislative efforts fail to address this need. Judge Posner lends support to this theory in his IDSA II opinion. He contends that not only do minors have the right to access violent games, but that it may be important for the health of society that they do so: This is not merely a matter of pressing the First Amendment to a dryly logical extreme. The murderous fanaticism displayed by young German soldiers in World War II, alumni of the Hitler Jugend, illustrates the danger of allowing government to control the access of children to information and opinion. Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so that their minds are not a blank when they first exercise the franchise. And since an eighteen-year-old's right to vote is a right personal to him rather than a right that is to be exercised on his behalf by his parents, the right of parents to enlist the aid of the state to shield their children from ideas of which the parents disapprove cannot be plenary either. People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble.122 Posner suggests that such a bubble would be the inevitable result of flatly barring access to materials considered potentially troublesome by mainstream society; certainly, given the context of the case, he was thinking explicitly of violent games. An overly broad ban on all games with violent content would create the stultifying effect that Posner fears, and it is difficult to posit a sensible narrowly tailored restriction. Simply preventing minors from viewing depictions of the most extreme sorts of virtual violence, such as sexual violence, "aggravated assault, decapitation, dismemberment, or death," would not be sufficient.123 Posner posits that the most grisly images can and do have significant speech value, and eloquently illustrates the place of disturbingly graphic violence in literature and art. No doubt the City would concede [the value of graphic depictions of violence] if the question were whether to forbid children to read without the presence of an adult the Odyssey, with its graphic descriptions of Odysseus's grinding out the eye of Polyphemus with a heated, sharpened stake, killing the suitors, and hanging the treacherous maidservants; or The Divine Comedy with its graphic descriptions of the tortures of the damned; or War and Peace with its graphic descriptions of execution by firing squad, death in childbirth, and death from war wounds. Or if the question were whether to ban the stories of Edgar Allen Poe, or the famous horror movies made from the classic novels of Mary Wollstonecraft Shelley (Frankenstein) and Bram Stoker (Dracula). Violence has always been and remains a central interest of humankind and a recurrent, even obsessive theme of culture both high and low. It engages the interest of children from an early age, as anyone familiar with the classic fairy tales collected by Grimm, Andersen, and Perrault is aware. To shield children right up to the age of 18 from exposure to violent descriptions and images would not only be quixotic, but deforming; it would leave them unequipped to cope with the world as we know it.124 It may be that only the most violent of games could potentially effect children's behavior. Given this reasoning, however, it may be that that effect would be not only positive but essential. Violent images engage not only prurient interests, but as Judge Posner and commentators such as Dr. Jenkins note, the highest moral and intellectual interests as well. Dr. Jenkins notes the similarity of film and electronic games in this context. "Think about cinema. What if, all these years later, all anyone had ever written about was violence? We'd think it had completely trivialized an enormous epoch in the history of media."125 This illustrates the difficulty in crafting narrowly tailored content-based regulations. If film were regulated in the same way that industry critics propose regulating games, then many significant films would be barred from minors. From classic works such as "Aleksandr Nevsky" to popular modern epics in the vein of "Schindler's List" and "Saving Private Ryan," minors would be isolated from violent and disturbing images with a valuable social context. Even if a compelling interest could be constructed and defended in court, it is almost impossible to imagine a sufficiently narrow regulation. Isolating pure, mindless violence and leaving a safe harbor for redeemable, significant, and valuable if disturbing contributions to the medium, be it film or games, would require an almost case-by-case construction of the regulation. Again, the county defendants in IDSA managed to create a creative and original argument in favor of just such a construction. Faced with the difficulty of crafting narrow rules, and the industry's pressure to remain self-regulating, the St. Louis County Council crafted a flexible and ingenious solution. The ordinance in question turned on the operative language "harmful to minors," in a manner similar to H.R. 669.126 This phrase activated the various provisions of the ordinance, which forbade retailers from selling or renting material that fit that description to minors. The ordinance contained language defining "harmful to minors" as material that "`predominantly appeals to minors' morbid interest in violence', `is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, lacks serious literary, artistic, political or scientific value as a whole for minors, and contains...graphic violence.'"127 In addition to this language, however, the ordinance created a "`rebuttable presumption that video games rated 'M' or 'AO' by the Entertainment Software Review Board (ESRB) are harmful to minors.'"128 Games rated "T," "EC," or "E" were presumed to not fit the "harmful to minors" criteria.129 This effectively gave official color and weight of law to the industry's own rating standards, allowing independent review boards to classify individual games and determine their place under the regulation. The attempt failed, as the Eighth Circuit determined that the ordinance was invalid before reaching the question of whether it was sufficiently narrow. The county's solution to the problem, however, is innovative and potentially useful. If a compelling interest is ever established, only such a flexible and narrow regulation could hope to thread the needle carefully enough to meet the perceived interest in restricting access to prurient materials while allowing minors to access games with socially redeemable features. This hypothetical system would require changes to the ratings system currently in place, however, as it assesses games purely on the nature and quantity of violent and explicit material, without regard to the title's literary significance.130 The underlying definitions of such a system would also need to be narrower than the St. Louis County ordinance, which incorporated a broad concept of material "harmful to minors." The ordinance in that case would allow games vetted by a favorable rating, even one predicated on social value, to carry only a rebuttable presumption of free access by minors.131 A game found to have redeeming literary value would still be subject to regulation under the broad and strict standards of the usual "harmful to minors" characteristics.132 The St. Louis ordinance, like H.R. 669, would seem at first glance to have an escape clause evading these issues of narrow tailoring; both statutes contain exceptions for material with "serious literary, artistic, political or scientific value as a whole for minors."133 If consistently and strongly applied, these exceptions would seem to require exemptions for games with significant literary components. It seems unlikely, however, that such a provision would be applied in difficult cases Where communities are operating under the assumption that violent games are "murder simulators," hysteria and inaccurate perceptions of electronic games, along the lines of Judge Limbaugh's operating assumptions, are likely to trump an escape hatch for undefined literary, artistic, political or scientific values.134 Stronger and more flexible protections are needed to defend the First Amendment rights of minors against such vitriolic attacks; even a case-by-case analysis may be insufficient to protect the introduction of crucial if difficult material into minors' experience; a blanket exemption with no clear guidance is unlikely to be an effective defense against overzealous regulators. The First Amendment rights of minors are exactly what is at stake with the continuing introduction of legislation designed to bar them from violent games. Obviously, both compelling interest and narrow tailoring requirements are moot if games are denied speech status; without this designation, strict scrutiny by the courts is not required. While this is the most important issue, then, in many ways it is also the simplest. Although both IDSA and Kendrick were eventually decided on other grounds, the most memorable and widely comment-on features of those cases were their respective positions on the speech nature of games. Judge Limbaugh's position, widely vilified by commentators and gamers, seems woefully out of touch with the state of the art in electronic gaming. Despite his argument that scripts alone could not grant speech status to a game, it is difficult to see how a game produced from a detailed and in-depth scripting of dialogue, art, and action differs so substantially from a film that it loses its First Amendment protections.135 A recent best-selling computer and video game, "Max Payne 2," incorporated a 632-page script, voice actors, and graphic artists to create an immersive "film noir" experience "told in flashback and out of sequence."136 The same resources applied to a literal "film noir" would create an impressively artistic work that without question would be protected under the first amendment. It is difficult to see what characteristics, if any, separate the game from the hypothetical twin movie. The most persuasive argument in favor of such a distinction is that the game would have a disproportionately large impact on its minor audience, due to the length of immersion and increased interactivity. While many games last dozens of hours, it seems difficult to argue that more of a work equates to less value of speech. The overwhelming effect of interactivity is a more powerful argument, as the interactive nature of games is both self-apparent and clearly significant. The script in the game "Max Payne" is actually longer than it would be in a facially identical movie, because it contains ancillary dialogue and alternative material that a player may never encounter in a single play-through.137 The additional material in such designs presents conversations that may never happen as the result of players' choices in often Byzantine situations. In the context of a film, a protagonist's encounter with a bartender will end the same way, every time; he will always order the same drink or have the same conversation. In a game, the player's choices may include ""I'll take a drink," "I'll get a drink later" and "The separation of powers acknowledges the petty ambitions of individuals; that's its strength.""138 The players' choices are often dependent on his earlier decisions, and will almost always affect what options and consequences arise later. This focuses the player's attention and engages the mind in unique ways, and it cannot be denied that during such engagement a game is having a vastly greater impact on the player than an equivalent film or book. This argument fails to capture, however, the importance of interactivity as a hallmark of protected speech. The greater impact games have on their players should be cause for greater protection from unnecessary regulation. As Judge Posner notes, "All literature is interactive; the better it is, the more interactive."139 Even the most seemingly mindless and violent games may gain a measure of significance and value from their interactive nature. Posner describes the experience of a player of "The House of the Dead," a popular and sanguinary arcade game: The player is armed with a gun--most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player's duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be overwhelmed by the rush of the zombies when his gun is empty. Self-defense, protection of others, dread of the "undead," fighting against overwhelming odds--these are all age-old themes of literature, and ones particularly appealing to the young.140 Posner describes an extremely simplistic and violent game; as he dryly comments, it is not `distinguished literature.'141 But its interactive nature makes it immersive; the themes of dread, self-defense, and overcoming great odds may be lost if the same experience were presented on film. It is difficult to imagine artistic significance in an endlessly repetitive display of zombies being shot; even the basest horror movies contain characterization and cinematic elements not present in a game as viscerally simple as "The House of the Dead." By virtue of its interactivity, the themes Posner identifies are transmitted in the game where they might have been lost in an identical film. It could be argued, then, that interactivity should grant more protection to media, rather than less; interactivity is a mark of literary merit, and transmits significant information that may be lost in its absence. Given the burgeoning importance of electronic gaming and the conclusion that games are protectable as speech, legislative efforts like H.R. 669 should be overturned by the courts as impermissible burdens on the First Amendment rights of minors. It may be, as Kendall I decided, that some games cannot rise to the level of protected speech.142 Even if this is so, however, the medium itself is clearly capable of carrying significant and meaningful ideas; laws such as those in question should fail the strict scrutiny required of any regulation restricting access to such media. The scientific consensus necessary to show a compelling state interest does not, and may never, exist, and no past or planned future regulation is narrowly tailored or flexible enough survive such scrutiny. Conclusion The controversy posed by the unsettled nature of minors' right to access violent games has a clear solution as a consequence of this analysis. Both the Seventh and Eighth Circuits correctly identified the core difficulty: communities and lawmakers are tempted for a variety of reasons to impose strict regulations on violent media. These pressures certainly exist with all forms of violent and explicit entertainment, but the uniquely interactive nature of the medium, combined with its novel nature and high visibility, have proven to be especially strong with electronic gaming. Constitutional protections exist to protect the disenfranchised from such regulation, however; even minors are entitled to access to the marketplace of ideas. The strength and vigor of the appellate decisions considered here show that the circuit courts clearly understand the significance of these issues, and that they fail to see any significantly persuasive argument in favor of the ordinances with which they were presented. The national legislation currently under consideration, H.R. 669, adds nothing of value to those ordinances, and fails to incorporate the beneficial subtleties of the regulation at issue in IDSA. The tension posed by the threatened imposition of federal legislation on two circuits which have already found that such regulation is Constitutionally impermissible has a clear and unambiguous solution. The stance the circuits have taken, affirming (even through dicta) games as worthy of First Amendment protections and requiring strict scrutiny of content-based restrictions, should be adopted by the Supreme Court. This would resolve the tension between the Seventh and Eighth Circuits, which have acted in significant concert, and the remainder of the circuits, many of which will soon be required to pass judgment on such restrictions in their own bailiwicks. Such an adoption would also have a broader effect, resolving a more significant controversy. Broad recognition that games have a place under the First Amendment umbrella with films, audio recordings, and literature would send a clear message that games are fundamentally similar to these media, and deserving of the same respect and consideration. One could imagine two significant effects to such a message. First, those who feel strongly that minors are in danger from violent games would be aware of the high bar placed in their path, and work to craft legislation capable of meeting it. The result may be better laws; just as St. Louis introduced creative new solutions to its ordinance in the wake of the Kendall decisions, an unambiguous indication that games exist in the same continuum as films and books would force would-be regulators to think creatively and work with industry rather than against it. The industry itself would feel the second significant effect from clarification of the Constitutional place of games; given a high bar to live up to, the potential of interactive entertainment to stimulate artistically and intellectually rather than viscerally may be re-invigorated. Electronic games clearly inhabit the same Constitutional space as other, more traditional media. Having recognized this, the positions of the Seventh and Eighth Circuits should be taken up by the other circuits, either as each individually meets the issue or through a clear message from the Supreme Court. This is unlikely to happen soon, but H.R. 669, for all its flaws, may be the venue by which such a message is eventually delivered. However the issue is finally resolved, the nature of video and computer games must eventually be settled with the foresight of Judge Posner rather than the intemperance of Judge Limbaugh. Anything less from the nation's highest courts would send an inappropriate message to impressionable minors; it must be made clear that freedom of speech does not decay as speech evolves. ______________________________________________________________________________ 1. Computer and video games combined formed a nearly seven billion dollar market in 2002; 221 million computer and video games were sold, "almost two games for every household in America." Digital Press Room, Entertainment Software Association, at http://www.theesa.com/presroom.html (visited Dec. 7, 2003). Proposed federal legislation estimates the current industry size at ten billion dollars. See The Protect Children from Video Game Sex and Violence Act of 2003, H.R. 669, 108th Cong. (2003). Video and computer games share many similarities and are often conflated, but are distinct and distinguished by the hardware required by the game in question. Game software requiring a specific, dedicated console computer or arcade machine will be referred to here as a video game. Computer games, by contrast, are designed to be playable on generic home computers, and generally do not require specialized hardware. For convenience, both media will be collectively referred to here as "electronic games." 2 Electronic games are rated by the Entertainment Software Ratings Board (hereinafter ESRB), which is structurally and operationally similar to the Classification and Rating Administration which rates films. See Entertainment Software Rating Board, at http://www.esrb.org/index.asp (visited Dec. 7, 2003). See also Reasons for Movie Ratings, The Classification and Rating Administration, at http://www.cara.org (visited Dec. 7, 2003). 3 See Indianapolis General Ordinance No. 72-2000 (Sept. 1, 2000) [hereinafter "Indianapolis Ordinance"]. See also St. Louis County Ordinance No. 20,193 (Oct. 26, 2000) [hereinafter "St. Louis Ordinance"]. See also House Bill No. 1009, 58th Leg., Reg. Sess. (Wash. 2003). 4 See Indianapolis Ordinance, supra note 3 (regulating arcade games in a public "amusement location," but not the sale or rental of games to be played in the home); c.f. St. Louis Ordinance, supra note 3 (regulating both public games and the sale or rental of home games). 5 See American Amusement Mach. Ass'n v. Kendrick, 115 F. Supp. 2d 943 (S.D. Ill. 2000) (hereinafter Kendrick I), rev'd, 244 F.3d 572 (7th Cir. 2001) (addressing Indianapolis Ordinance, supra note 3). See also Interactive Digital Software Ass'n v. St. Louis County, 200 F. Supp. 2d 1126 (E.D. Mo. 2002) (hereinafter IDSA I), rev'd, 329 F.3d 954 (8th Cir. 2003) (addressing St. Louis Ordinance, supra note 3). 6 See Video Software Dealers Ass'n v. Maleng, No. C03-1245L (W.D. Wash. July 10, 2003) (granting preliminary injunction against House Bill No. 1009, 58th Leg., Reg. Sess. (Wash. 2003)). 7 H.R. 669, supra note 1. The Act's expansively defines "video game" as any "any copy of an electronic game that may be played using a portable electronic device or with a hand-held gaming device using a television or computer." Id. This curious definition could be read as excluding games designed to be played with a keyboard, mouse, or other commodity home computer peripherals; this oversight is arguable and almost certainly unintentional. 8 See What's New, The Lion & Lamb Project, at http://www.lionlamb.org/whatsnew.html (visited Dec. 7, 2003). 9 See Barbara F. Meltz, Legislation Would Target Violence in Video Games, The Boston Globe, May 22, 2003, at H1 [hereinafter Violence in Video Games]. 10 Adam Thierer, Regulating Video Games: Parents or Uncle Sam?, Cato Institute, at http://www.cato.org/dailys/07-14-03.html (July 14, 2003). 11 See Industry Sales and Economic Data, Entertainment Software Association, at http://www.theesa.com/industrysales.html (visited Dec. 7, 2003). 12 Economic Impacts of the Demand for Playing Interactive Entertainment Software, Entertainment Software Association, 7, at http://www.theesa.com/releases/EIS2001.pdf (visited Dec. 7, 2003). 13 Industry Sales and Economic Data, supra note 11. 14 Estimations of the size and penetration of the electronic gaming market vary widely. See H.R. 669, supra note 1 (placing the size of the industry at ten billion dollars); compare Industry Sales and Economic Data, supra note 11 (citing sales of nearly seven billion dollars). 15 See Digital Press Room, supra note 1. 16 Id. 17 Id. See also ESRB Game Ratings, Entertainment Software Rating Board, at http://www.esrb.org/esrbratings_guide.asp (visited Dec. 7, 2003). 18 See generally Interactive Digital Software Association, Essential Facts About the Computer and Video Game Industry: 2003 Sales, Demographics, and Usage DATA (2003) [hereinafter Essential Facts] (on file with author). 19 See generally Lan Tran, Difference Between Gaming Consoles (PS/PS2, GameCube, Xbox, Dreamcast) and PC, OpenLoop, at http://www.openloop.com/education/classes/sjsu_engr/engr_com pOrg/spring2002/studentProjects/Lan_Tran/ComputervsConsoles.htm (May 13, 2002). 20 There are a wide variety of costs attached to publishing a title beyond a single console market. 20-30% of a publisher's wholesale revenue goes to pay licensing fees to the console manufacturer. Phil Steinmeyer, Inside the Sausage Factory: Exploding the Myths, CG Online, at http://www.cgonline.com/features/010107-c1-f1.html (January 7, 2001). On top of these fees, there are high advertising and shelf-space costs inherent in attempting to market a game in retail channels. These factors are mitigated for large publishers by the correspondingly high licensing costs of existing content, such as movie tie-ins, and costs to develop assets that can be easily transferred between console versions, such as art and music. With larger advertising budgets and more market power, larger actors are encouraged to work to push their titles across console borders. "As a result, you really need those big multi-million dollar winners to cover your costs." Interview by David J. Edery with Kathy Vrabek, President, Activision Publishing (November 11, 2003) (on file with author). 21 Nearly half of computer gamers are over the age of 35, and nearly half are female. Video game players are younger, thirty-eight percent being below the age of 18, and only twenty-nine percent are female. See Essential Facts, supra note 18, at 3. The seemingly large proportion of female computer gamers is the subject of contention. "The market is still overwhelmingly dominated by males, so even though the growth rate of the female market looks big, women continue to represent a very small percentage of gamers overall." Interview with Kathy Vrabek, supra note 20. 22 See Essential Facts, supra note 18, at 5. 23 Id. Only two of the top twenty best-selling computer games were rated "M". One was Grand Theft Auto 3, which was in fifteenth place, as compared to its second place showing in the video game market. 24 See, e.g., H.R. 669, supra note 1. The definitions applied by the bill could be read to exclude many computer games, although this omission is almost certainly unintentional given perambulatory language referring to "video and computer games". See note 7. 25 Press Release, Leland Yee, Assemblymember Yee Introduces Legislation Restricting the Sale of Violent Video Games to Children (November 25, 2003) (on file with author). 26 Ed Fletcher, Bills to Target Violent Video Games, Sacramento Bee, November 29, 2003. 27 See Essential Facts, supra note 18, at 5. See also Steven Kent, Game Glorifies a Life of Crime, USA Today, December 20, 2001, at D3 (noting that players `run prostitutes, deliver drugs, make gangland hits and generally flout the law.") 28 See generally Bonnie B. Phillips, Virtual Violence or Virtual Apprenticeship: Justification for the Recognition of a Violent Video Game Exception to the Scope of First Amendment Rights of Minors, 36 Ind. L. Rev. 1385 (2003) [hereinafter Virtual Violence]. "[A]s results emerge from research on the effect of violent video games, a compelling argument can be made that video games are training their players to kill, like the military trains soldiers for battle." Id. at 1396. 29 Adam Thierer, Regulating Video Games: Parents or Uncle Sam?, Cato Institute, supra note 10. 30 Virtual Violence, supra note 28, at 1394-1395, quoting Craig A. Anderson & Karen E. Dill, Video Games and Aggressive Thoughts, Feelings, and Behavior in the Laboratory and Life, 78 J. PERSONALITY & SOC. PSYCH. 772, 772. 31 Grossman defines "killology" as "The scholarly study of the destructive act, just as sexology is the scholarly study of the procreative act." Killology Research Group, at http://www.killology.com (visited Dec. 7, 2003). See generally David Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown and Co. 1995). See also David Grossman, On Killing: The Psychological Cost of Learning to Kill in War and Society (Little, Brown and Co. 1995). 32 Virtual Violence, supra note 28, at 1401-1402, quoting David Grossman & Mary Cagney, Trained to Kill, Christianity Today, Aug. 10, 1998, at 31 (original source unavailable). 33 See generally Press Appearances, Killology Research Group, at http://www.killology.com/press.htm (visited Dec. 7, 2003). 34 "Violent video games hardwire young people for shooting at humans. The entertainment industry conditions the young in exactly the same way the military does." Newsroom, The Lion & Lamb Project, at http://www.lionlamb.org/newsroom_research_stats.html (visited Dec. 7, 2003) quoting On Killing, supra note 31. 35 See Reports: 1998 Video and Computer Game Report Card: Video Game Violence: What Does the Research Say?, National Institute on Media and the Family, at http://www.mediafamily.org/research/report_vgrc_1998-2.shtml (visited Dec. 7, 2003) [hereinafter 1998 Report Card]. For the most recent Report Card, see 7th Annual Video and Computer Game Report Card -- Full Report, December 19, 2002, National Institute on Media and the Family, at http://www.mediafamily.org/research/report_vgrc_2002-2.shtml (visited Dec. 7, 2003) [hereinafter 2002 Report Card]. 36 See 1998 Report Card, supra note 35. 37 6th Annual Video and Computer Game Report Card -- Full Report, December 13, 2001, National Institute on Media and the Family, at http://www.mediafamily.org/research/report_vgrc_2001-2.shtml (visited Dec. 7, 2003) [hereinafter 2001 Report Card], citing Griffiths, M.D. & Hunt, N., Dependence on Computer Games by Adolescents, 82 Psychol. Rep. 475-480 (1998). 38 7th Annual Video and Computer Game Report Card -- Full Report, December 19, 2002, National Institute on Media and the Family, at http://www.mediafamily.org/research/report_vgrc_2002-2.shtml (visited Dec. 7, 2003), citing Griffiths, M.D. & Hunt, N., Dependence on Computer Games by Adolescents, 82 Psychol. Rep. 475-480 (1998). 39 Id, citing Stanley A. Miller, Death of a Game Addict, Milwaukee Journal Sentinel, March 31, 2002. 40 For the industry response to unfavorable public perceptions, see text accompanying note 17. 41 Dr. Henry Jenkins, Coming Up Next: Ambushed on "Donahue"!, Salon.com, at http://www.salon.com/tech/feature/2002/08/20/jenkins_on_donahue/index.html (Aug. 20, 2002). 42 Id. 43 Id. 44 Interview with Dr. Henry Jenkins, Director, Comparative Media Studies Program, Massachusetts Institute of Technology, at http://www.penny-arcade.com/lodjenkins.php3 (visited Dec. 7, 2003) (emphasis original). 45 Mike Krahulik and Jerry Holkins, How Many Points Is That?, Penny Arcade, at http://www.penny-arcade.com/view.php3?date=2000-03-27&res=l (March 27, 2000). 46 See Kendrick I, 115 F. Supp. 2d 943. See further American Amusement Mach Ass'n v. Kendrick, 244 F.3d 572 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001) [hereinafter Kendrick II]. See also IDSA I, 200 F. Supp. 2d 1126. See further Interactive Digital Software Ass'n v. St. Louis, 329 F.3d 954, (8th Cir. 2003) [hereinafter IDSA II]. 47 Kendrick I, 115 F. Supp. 2d at 945, quoting Indianapolis Ordinance, supra note 3. 48 Plaintiffs did not challenge the ordinance's restrictions on sexually explicit material. Id. at 946. 49 See Kendrick II, 244 F.3d at 573. 50 In addition to its own analysis, the opinion includes the ordnance itself, along with its perambulatory material, as an appendix. See Kendrick I, 115 F. Supp. 2d at 981. 51 The ordnance was characterized as a regulation of "the conduct of persons who own or operate places of business which contain amusement machines and/or video games, in such a manner that restricts and prohibits access to amusement machines and/or video games which are deemed harmful to minors, and to prohibit such amusement machines and/or video games on public property." Kendrick I, 115 F. Supp. 2d at 981. 52 Responding plaintiff's challenges to the city's use of studies finding harmful effects accruing in players of electronic games in the home to justify the applicability of the ordnance to arcade games, the court ruled that the essential issues were the same. "Although home and arcade platforms for video games are different, that does not mean that studies of one are irrelevant to the other." Kendrick I, 115 F. Supp. 2d at 964. 53 See Kendrick I, 115 F. Supp. 2d at 947. 54 See Kendrick I, 115 F. Supp. 2d at 946. 55 Id, citing Ginsberg v. State of N.Y., 390 U.S. 629, 88 S. Ct. 1274 (1968). 56 Id. at 950, citing Marshfield Family Skateland, Inc. v. Town of Marshfield, 450 N.E.2d 605, 609-610 (Mass. 1983). 57 Caswell v. Licensing Comm'n, 444 N.E.2d 922, 927 (Mass. 1983), cited by Kendrick I, 115 F. Supp. 2d at 951. Marshfield, which followed Caswell in the same year, notes that the Court's Caswell holding was factually limited, and explicitly did not foreclose on technological and stylistic advances elevating games to speech status. See Kendrick I, 115 F. Supp. 2d at 951, citing Marshfield, 450 N.E.2d at 226-27. 58 See generally City of Warren v. Walker, 354 N.W.2d 312 (Mich. 1984). See also America's Best Family Showplace Corp. v. City of New York, 536 F.Supp. 170 (E.D.N.Y.1982). 59 See Kendrick I, 115 F. Supp. 2d at 950. 60 Kendrick I notes two Seventh Circuit cases that tangentially covered First Amendment rights in the context of electronic entertainment, but neither squarely addressed the existence of protectable speech in such media. See Kendrick I, 115 F. Supp. 2d at 951, citing Rothner v. City of Chicago, 929 F.2d 297 (7th Cir.1991) and Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir.1990) (hereinafter Miller). 61 See Miller, 929 F.2d at 1098-1099, cited by See Kendrick I, 115 F. Supp. 2d at 951. 62 Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975), quoted by Kendrick I, 115 F. Supp. 2d at 952. 63 Kendrick I, 115 F. Supp. 2d at 952. The tactical failure to demonstrate a game subjected to the challenged regulation did not prejudice the court's reasoning; a similar failure proved critical in IDSA I. See text accompanying note 88. 64 Id. 65 See generally Kendrick I, 115 F. Supp. 2d at 952-954. 66 Id. at 954. 67 Kendrick I, 115 F. Supp. 2d at 962. 68 Id. at 963. 69 Id. at 965. 70 Id. at 981. 71 See Kendrick II, 244 F.3d at 574, citing Winters v. New York, 333 U.S. 507, 518-20, and United States v. Thoma, 726 F.2d 1191, 1200 (7th Cir.1984). 72 See id. at 579. 73 Kendrick II, 244 F.3d at 577. 74 "But the game is feminist in depicting a woman as fully capable of holding her own in violent combat with heavily armed men. It thus has a message, even an `ideology,' just as books and movies do." Kendrick II, 244 F.3d at 578. 75 See id. at 579-80. 76 See IDSA I, 200 F. Supp. 2d at 1130. 77 IDSA II, 329 F.3d at 956. 78 Media coverage of IDSA I was relatively prolific, and commonly referenced both the Seventh Circuit's holding and the fact that the district judge, Judge Stephen N. Limbaugh, was a relative of talk-show host Rush Limbaugh. See generally Mark Jurkowitz, Appeals Court Holds Key in Battle Over Regulation of Violent Video Games, The Boston Globe, October 2, 2002, at D1. See also Wagner James Au, Playing Games With Free Speech, Salon.com, at http://www.salon.com/tech/feature/2002/05/06/games_as_speech/ (May 6, 2002). See further Chris Morris, No Free Speech for Games, CNN Money, at http://money.cnn.com/2002/04/30/commentary/game_over/column_gaming/ (April 30, 2002). 79 See IDSA II, 329 F.3d at 954. 80 See IDSA I, 200 F. Supp. 2d at 1141. 81 See generally "Atticus XI - The Lawyer of Doom" (pseudonymous), The Intersection of Gaming and Law, Penny Arcade, at http://www.penny-arcade.com/lod3.php3 (visited Dec. 7, 2003). 82 IDSA I, 200 F. Supp. 2d at 1132 (citations omitted). 83 Id. at 1133, quoting America's Best Family Showplace Corp. v. City of N.Y., Dep't of Buildings, 536 F.Supp. 170, 173-174 (E.D.N.Y.1982). 84 The court drew support from both Caswell and Rothner, but did not follow Kendrick I in examining the impact of time on the strength of these cases. See text accompanying note 57. 85 IDSA I, 200 F. Supp. 2d at 1134. 86 Id. 87 Id. 88 Id. at 1135. See also text accompanying note 82. 89 Id., citing Spence v. State of Washington, 418 U.S. 405, 410 (1974) for the proposition that "the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol." 90 IDSA I, 200 F. Supp. 2d at 1131. 91 See generally Playing Games With Free Speech and No Free Speech for Games, supra note 78. See also Interview with Dr. Henry Jenkins, Comparative Media Studies Program Director, Massachusetts Institute of Technology, in Gamecritics.com (January 22, 2003), at http://www.gamecritics.com/feature/interview/jenkins/page01.php (claiming that Limbaugh in fact failed to capitalize the game "Doom" correctly, and therefore correctly identified only one game of the four he watched.) 92 See Interview with Henry Jenkins, supra note 91. 93 Id. 94 See IDSA I, 200 F. Supp. 2d at 1133. See also text accompanying note 58. 95 Id. at 1135. 96 See Interview with Dr. Henry Jenkins, supra note 91 (characterizing the ruling as "expansive"). See also The Intersection of Gaming and Law, supra note 81. 97 See IDSA I, 200 F. Supp. 2d at 1136-1138. Testimony presented by the county at trial notably referenced the work of Lt. Col. Grossman. Id. at 1137. 98 Id. at 1141. 99 See IDSA II, 329 F.3d 954. 100 Id. at 957, quoting Kendrick II, 244 F.3d at 577-78. 101 See id. 102 Id, quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). 103 Id. at 959. 104 Id. at 960. 105 See text accompanying note 7. 106 See generally H.R. 669, supra note 1. 107 See generally R.A.V. v. St. Paul, Minn., 505 U.S. 377, 382-83 (1992), cited by Kendrick II, 244 F.3d at 574 and IDSA II, 329 F.3d at 958. 108 See generally Kendrick II, 244 F.3d at 576, citing Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975) and Tinker v. Des Moines Independent School District, 393 U.S. 503, 511-14 (1969). 109 IDSA II, 329 F.3d at 959. See also text accompanying note 103. 110 See generally Books and Audio/Video, Killology Research Group, at http://www.killology.com (visited Dec. 7, 2003). 111 See Coming Up Next!, supra note 41. 112 See IDSA I, 200 F. Supp. 2d at 1138. 113 "The ratings and content descriptors of video and computer games issued by the entertainment industry reflect the notion that certain video and computer games are suitable only for adults due to graphic depictions of sex or violence." HR 669, supra note 1. 114 Id. 115 IDSA II, 329 F.3d at 959, quoting United States v. Playboy Entm't Group, Inc., 529 U.S. 803, 822 (2000). 116 H.R. 669 Sec. 2 (3), (4) & (7). 117 See generally R.A.V., supra note 107. 118 H.R. 669 2732, supra note 1. 119 The language of 2732 does not appear to include games played in situ in an arcade, which were covered by the ordinances in both Kendall and IDSA. Otherwise, the simplicity of the language incorporates all the effects of those regulations and applies them nationally. See H.R. 669. As with both Kendrick and IDSA, the language barring the sale or rental of depictions of nudity and sexual content are unlikely to be challenged; sexual obscenity guidelines are clearer and less troublesome to the industry than relatively vague, novel, and unfounded restrictions on violent material. 120 H.R. 669 2371 (1) & (2) 121 See generally Interview with Dr. Henry Jenkins, supra note 44. 122 Kendrick II, 244 F.3d at 576-77. 123 H.R. 669, supra note 1. 124 Kendrick II, 244 F.3d at 577. 125 Interview with Dr. Henry Jenkins, supra note 44. 126 See St. Louis Ordinance, supra note 3, quoted by IDSA I, 200 F. Supp. 2d 1126. 127 IDSA I, 200 F. Supp. 2d at 1130, quoting St. Louis Ordinance, supra note 3. 128 Id. 129 Id. The relevant ratings correspond to "Mature," "Adults Only," "Teen," "Early Childhood" and "Everyone." See generally ESRB Game Ratings, supra note 17. 130 See ESRB Game Ratings, id. 131 IDSA I, 200 F. Supp. 2d at 1130, quoting St. Louis Ordinance, supra note 3. See also text accompanying note 127. 132 Id. See also text accompanying note 119. 133 Id. See also H.R. 669, supra note 1 (containing virtually identical language). 134 "The violence in media surrounding children at every turn translates into learned behaviors, similar to the training tactics used in Nazi Germany and Imperial Japan to desensitize soldiers to killing. And children are becoming expert marksmen as they play their `children's' video games, Grossman said. `Today, kids are taught to kill every living thing in front of them with the greatest possible efficiency,'' he said. `And kids are on murder simulators every night, shooting with supernatural accuracy.'" Barbara Blake, "Killology" Expert Speaks in Asheville, Killology Research Group, at http://www.killology.com/ashevillecitizen_mar01.htm (March 29, 2001). 135 See IDSA I, 200 F. Supp. 2d at 1135. 136 Interview with Sam Lake, Lead Writer, Rockstar Games, in ShackNews at http://www.shacknews.com/extras/interviews/093003_maxpayne2_1.x (Sept. 30, 2003). 137 Id. 138 Playing Games With Free Speech, supra note 78. 139 Kendrick II, 244 F.3d at 577. 140 Id. at 577-78. 141 Id. at 578. 142 See generally Kendrick I, 115 F. Supp. 2d 943. --- -- - -- --- -- - -- --- -- - -- --- -- - -- --- Issue#138 of "GwD: The American Dream with a Twist -- of Lime" ISSN 1523-1585 copyright (c) MMIII Yancey Slide/GwD Publications /---------------\ copyright (c) MMIII GwD, Inc. All rights reserved :WOOGIE + WOOGIE: a production of The GREENY world DOMINATION Task Force, Inc. : GwD : Postal: GwD, Inc. - P.O. Box 16038 - Lubbock, Texas 79490 \---------------/ FYM -+- http://www.GREENY.org/ - editor@GREENY.org - submit@GREENY.org -+- FYM GwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwDGwD