Indiana Law Review


Shielding Children from Violent Video Games
Through Ratings Offender Lists

Kevin W. Saunders*

Introduction

The past decade has seen a great deal of concern over the exposure of
children to violent video games. Social scientists have provided a basis for that

concern through studies linking the playing of such games to real world

aggression,
1

but the links have not been sufficiently strong for the courts to accept

legal limitations on access by children.
2
In each case, legislative limitations have

been opposed by the video game industry, even though the industry's own ratings
system considers many of the violent games unsuitable for children.3 The
purpose of this Article is not to suggest the abandonment of the legislative

attempts at limiting access. The analysis of the courts rejecting the previous
attempts has focused on the purported failure of the science to support the

necessity of the restrictions to meet the accepted compelling interest in the

physical and psychological well-being of youth.
4

That analysis is time bound.

That is, all a court could say is that the science, as it existed at the time of the

court's examination of the issue, failed to support adequately the limitations.

That conclusion says nothing with regard to the science even six months or a year

in the future, and each time a legislature tries to limit the access of children to

violent video games, courts must examine the science anew. The continued
development of social science, and the new insights being provided by
neuroscience,

5 make the possibility that courts will recognize the necessity of
these limits at some point in the future very real.

What is suggested here is that, at least as a temporary means of protecting
children, parents be provided with notice as to which stores and arcades are

allowing access to games that are inappropriate for their children, according to
the video game industry's own ratings systems. There is evidence that media
ratings systems may be confusing or misleading,6 so parents may not recognize
which games have been rated as inappropriate. There may also be confusion as
to the legal status of the industry ratings systems. If parents believe that their

children are not allowed to buy games or play games in arcades rated beyond the

* Professor Law, Michigan State University College of Law. A.B., Franklin & Marshall
College; M.S., M.A., Ph.D., University of Miami; J.D., University of Michigan.

1. See infra notes 18-55 and accompanying text. The cited material also shows that the

courts have not been receptive to the social science.

2. See infra notes 19, 27, 43-55 and accompanying text. But see notes 26, 31 and

accompanying text.

3. See infra notes 92-1 17 and accompanying text.

4. See infra notes 18-55 and accompanying text.

5. For a discussion of the relevant neuroscience, see Kevin W. Saunders, A Disconnect
Between Law and Neuroscience: Modern Brain Science, Media Influences, and Juvenile Justice,

2005 Utah L. Rev. 695.

6. See infra notes 108-14 and accompanying text.



56 INDIANA LAW REVIEW [Vol. 41 :55

ages of their children,
7
they may not realize what their children experience in

arcades or buy in stores.

The confusion over what is available to children could be cleared up by
attempts by either public interest groups or governmental units to have children

purchase, or play in arcades, games rated as beyond their age. Where the attempt
is successful, the name of the store selling the game or the mall or other place in
which the arcade is located could be placed on a web site, using the model of sex
offender web sites. Parents could then know the stores at which they may safely
let their children shop and the malls at which their children may similarly "hang
out." The video game industry and retailers will likely be unhappy with the effort
and will certainly see it as the back door effort to limit children's access. Where
the web site is compiled and accurately maintained by a private entity, there
would be little recourse for the industry. However, where the effort is undertaken

by a governmental entity, there is certain to be a First Amendment challenge,
although it is a challenge that should prove to be unsuccessful.

This Article begins by examining briefly the failed efforts at shielding

children from violent video games.
8

Part II examines the video game ratings
system,

9
presents past "sting" operations,

10
and proposes such future operations.

11

Once the proposal is laid out, Part III examines the potential First Amendment
and other constitutional challenges. The Article concludes with an examination
of the potential content of the proposed web site and a discussion of "ratings
creep."

12

I. The Case Law on Violent Video Game Restrictions

There has been a growing number of cases decided in this decade striking
down limitations on children's access to violent video games. The first arose in
2000, when the combined city and county councils for the City of Indianapolis
and Marion County, Indiana, passed an ordinance requiring that video arcades

separate their sexually explicit and violent games from their more innocuous fare

and not allow those under eighteen to play those games, unless accompanied by

a parent, guardian, or custodian.
13 When the video game industry challenged the

ordinance in federal district court, the court refused to enjoin its enforcement.
14

7. The Author has identified no studies on this issue, but is regularly asked why the video

game industry is not subject to the same restrictions as the film industry. There is clearly a belief

that the film industry ratings have a legal force that does not in fact exist for that similarly voluntary

video game system.

8. See infra Part I.

9. See infra Part II.A.

10. See infra Part II.B.

11. See infra Part II.C.

12. See infra notes 133-341 and accompanying text.

1 3

.

The ordinance is discussed in American Amusement Machine Ass 'n v. Kendrick, 1 1 5 F.

Supp. 2d 943, 946-48 (S.D. Ind. 2000), rev'd, 244 F.3d 572 (7th Cir. 2001).

14. Id. at 981.



2008] SHIELDING CHILDREN 57

The court relied primarily on the variable obscenity doctrine found, as applied to

youth, in Ginsberg v. New York, 15 stating that "the court is not persuaded there is
any principled constitutional difference between sexually explicit material and

graphic violence, at least when it comes to providing such material to children."
16

The court, however, did not rely solely on obscenity law; it also recognized a
strong government interest in preventing or limiting the harmful effects it saw as

demonstrated from violent video games.
17

On appeal, the United States Court of Appeals for the Seventh Circuit
rejected the inclusion of violent material with sexual material as potentially

obscene when provided to youth.
18 The appellate court also rejected any

connection between video game violence and real world violence. The court's
view of the social science was that "[t]he studies do not find that video games

have ever caused anyone to commit a violent act, as opposed to feeling

aggressive, or have caused the average level of violence to increase anywhere. .

. . Common sense says that the City's claim of harm to its citizens from these
games is implausible, at best wildly speculative."

19

The second attempt at a limitation was the passage of a St. Louis County
ordinance, also in the year 2000.

20
The ordinance also addressed arcade play by

minors without parental permission, but limited sales and rentals as well.
21

This

time the age limit was seventeen.
22

Once again, the ordinance survived the first

industry salvo, when the district court refused to enjoin enforcement.
23 The

district court concluded that video game play is not an activity protected by the
First Amendment.

24
That may seem an odd position, but if the creative aspects

of game, design, artistic, and story presentation, are separated from the act of

playing the game, an act that communicates to no one, it is a position that may be
reasonable.

25
With regard to harm, the district court could not be more in

opposition to the earlier Seventh Circuit opinion. As the district court saw it,
"[f]or plaintiffs to . . . argue that violent video games are not harmful to minors

is simply incredulous."
26

On appeal, the Eighth Circuit did not express quite the degree of skepticism
that the Seventh Circuit had, but still rejected the claims that the games posed a

15. 390 U.S. 629(1968).

16. Am. Amusement Mach. Ass'n, 1 15 F. Supp. 2d at 946.

17. Id.

18. See Am. Amusement Mach. Ass 'n, 244 F.3d at 574-76.

19. Id. at 578-79.

20. The ordinance is discussed in Interactive Digital Software Ass 'n v. St. Louis County, 200

F. Supp. 2d 1126, 1129-31 (E.D. Mo. 2002), rev'd, 329 F.3d 954 (8th Cir. 2003).

21. Id. at 1130.

22. Id.

23. Id. at 1141.

24. Id. at 1135.

25. See Kevin W. Saunders, Regulating Youth Access to Violent Video Games: Three

Responses to First Amendment Concerns, 2003 MlCH. ST. L. REV. 51, 93-105.

26. Interactive Digital Software Ass'n, 200 F. Supp. 2d at 1 138.



58 INDIANA LAW REVIEW [Vol. 41:55

danger to youth. Examining what seemed to be a limited submission of the

available social science research, the court viewed the submissions as consisting

of a 'Vague generality [that fell] far short of a showing that video games are

psychologically deleterious" and the studies as "ambiguous, inconclusive, or

irrelevant."
27
The court also held that video games are protected expression under

the First Amendment, but did not distinguish between game design and game
play.

28

In the third case, the State of Washington focused restrictive legislation only

on games in which the player shoots law enforcement officers.
29

The statute
imposed a ban on distributing such games to minors, and the hope seemed to be

that this approach, narrowly tailored to concerns over the safety of police officers,

would survive constitutional challenge, where the others had failed. In addition,

the State said that it wished to "to foster respect for public law enforcement

officers."
30

As it turned out, the statute fared no better, and ironically, it was the narrower
focus that led to its downfall. The federal district court actually seemed receptive

to the general concerns over media, and especially video game violence, saying
that the State had

presented research and expert opinions from which one could reasonably

infer that the depictions of violence with which we are constantly
bombarded in movies, television, computer games, interactive video

games, etc., have some immediate and measurable effect on the level of
aggression experienced by some viewers and that the unique
characteristics of video games . . . makes video games potentially more
harmful to the psychological well-being of minors than other forms of

media. In addition, virtually all of the experts agree that prolonged

exposure to violent entertainment media is one of the constellation of risk

factors for aggressive or anti-social behavior . . . .
31

What made the statute unconstitutional was the fact that there was no evidence
that those games in which players shoot law enforcement officers are any more
dangerous than games in which players shoot other individuals.

32
While the court

found fault in the social science studies submitted by the State, it did indicate that

statutes that took aim at the most violent games, as opposed to focusing on virtual

victim's identity, could, with more scientific support, be held constitutional.
33

27. Interactive Digital Software Ass'n v. St. Louis County, 329 F.3d 954, 959 (8th Cir. 2003).

28. Id. at 957-58.

29. The ordinance is discussed in Video Software Dealers Ass 'n v. Maleng, 325 F. Supp. 2d

1 180, 1 186-90 (W.D. Wash. 2004).

30. Id.

31. Id. at 1188.

32. Mat 1188-90.
33. See id. at 1 190. The court, while noting that it could not offer advisory opinions, did go

on to indicate the "[k]ey considerations" in analyzing future violent video game statutes:

—does the regulation cover only the type of depraved or extreme acts of violence that



2008] SHIELDING CHILDREN 59

The results of the first three cases, while all losses in the attempt to restrict
access by children to violent video games, provided some hope for eventual
success. Interestingly, the district courts, the courts that regularly make the
findings of fact, all seemed to see the danger involved in the games. Two were
convinced and refused to enjoin the ordinances at issue.

34
The third also found

the studies generally plausible, but found fault in the lack of specific results

regarding law enforcement officers.
35 The third court indicated that the continued

development of the science could lead to holdings of constitutionality.
36

However, in both successful cases the appellate courts not only declared the

ordinances unconstitutional, but in doing so went against the conclusion of the

traditional finders of fact and held that violent video games do not pose a danger

to youth.
37

These appellate court decisions would prove to be important in their

influence on later district court examinations of other statutes.

After a short lapse there was renewed activity, with 2005 seeing statutes

adopted in the states of Illinois, California, and Michigan. All three were quickly

challenged by the video game industry, with the Illinois case being the first to
reach a final district court decision. The Illinois Violent Video Games Law
imposed criminal penalties for the sale or rental to minors of violent video games

and imposed labeling requirements.
38 The statute did define the games to be

considered violent, as had the previous attempts, but the court found the

definition vague.
39

The court also examined the science offered to support the State's position
and found it wanting.

40
It should be noted that the district court hearing the case

violate community norms and prompted the legislature to act?

—does the regulation prohibit depictions of extreme violence against all innocent
victims, regardless of their viewpoint or status? and

—do the social scientific studies support the legislative findings at issue?
Id.

34. See Interactive Digital Software Ass'n v. St. Louis County, 200 F. Supp. 2d 1 126, 1 141

(E.D. Mo. 2002), rev'd, 329 F.3d 954 (8th Cir. 2003); Am. Amusement Mach. Ass'n v. Kendrick,

1 15 F. Supp. 2d 943, 981 (S.D. Ind. 2000), rev'd, 249 F.3d 572 (7th Cir. 2001).

35. Video Software Dealers Ass'n, 325 F. Supp. 2d at 1 188-90.

36. Id. at 1190.

37. See Interactive Digital Software Ass'n, 329 F.3d at 959; Am. Amusement Mach. Ass'n,

244 F.3d at 578-79.

38. The statute is discussed in Entertainment Software Ass 'n v. Blagojevich, 404 F. Supp. 2d

1051, 1057-58 (N.D. 111. 2005).

39. See id. at 1076-77. The statute addressed games in which there are '"depictions of or

simulations of human-on-human violence in which the player kills or otherwise causes serious

physical harm to another human. "Serious physical harm'" meant '"death, dismemberment,

amputation, decapitation, maiming, disfigurement, mutilation of body parts, or rape.'" Id. at 1057

(quoting 720 III. Comp. Stat. 5/ 1 2A- 1 0(e) (2006)). The court found vagueness in what constitutes

a human in the fantasy world of video games and what constitutes serious harm to such creatures,

who may for example sprout a new arm in the place of one cut off. See id. at 1076-77.

40. Id. at 1059-75.



60 INDIANA LAW REVIEW [Vol. 41:55

is a part of the Seventh Circuit, the circuit that had already expressed skepticism

regarding the science in the Indianapolis case. The State, faced with this previous
determination, seemed to recognize that it had to rely on newly developed

science, science on which the circuit had not ruled. The State offered recent
video games studies and a study on the neurological effects of violent media, but

the court rejected both.
41

As for the social science, the State brought in Professor Craig Anderson as
an expert. Professor Anderson is the leading researcher in the area, and that

turned out, in a way, to be a problem for the State.
42

In rejecting the social

science, the court noted that fourteen of the seventeen scholarly articles in the

legislative record were authored or co-authored by Professor Anderson, one was

written by a colleague, and the other two were written by a scientist who relied
on Anderson's work in developing his own studies.43 Rather than taking this as
a sign of the preeminence of Professor Anderson, and also seemingly failing to

recognize the peer review process that the articles had to undergo, the court

seemed to find that the, in a sense too great, expertise weakened the testimony.

The court also heard testimony from two other scientists with what it took to
be views contrary to those of Anderson. Dr. Jeffrey Goldstein, a social scientist

in the Netherlands, has completed research that shows video games can "improve

cognitive skill."
44

That, in fact, seems quite likely, but no one really argues that

no good can come from the games. The second scientist was a relatively newly
minted communications professor, Dr. Dmitri Williams, whose dissertation was

based on a one-month study of individuals playing a violent, multi-player game,
45

but multi-player games contain a social interaction that might distinguish them

from the video games in Anderson's studies.

What the industry witnesses testified to was that Anderson's work fails to
establish causation, although they agreed that there was a correlation between

exposure to video game violence and increased aggression.
46
They also had some

methodological concerns regarding Anderson's studies,
47
but that sort of concern

may always be raised, and it is again worth noting that Anderson's work was
subject to peer review. On the causation issue, it should be noted that causation
is never directly observed. It is always the conjunction, the correlation, of events

that is present to the senses, and causation is an inference from the circumstances

and that correlation. It did allow the court to state that it could not determine

from correlation which way causation runs: "it may be that aggressive children
may also be attracted to violent video games."48 Maybe so, and maybe people
with precancerous lung irritations are drawn to cigarette smoke and people with

41. id.

42. Id. at 1059.

43. Id. at 1058.

44. Id. at 1062.

45. See id.

46. See id.

47. Id.

48. Id. at 1074.



2008] SHIELDING CHILDREN 61

low IQs are more inclined to eat lead based paint, but Anderson's laboratory

studies, again rejected by the court as insignificant, again despite peer review,

purport to show the direction of causation.
49

The court also was unimpressed at the effect size in Anderson's studies. In
its analysis of one study involving noise blasts, the court noted that

on a one to ten scale of intensity, the most "aggressive" violent video

game players administered an average blast of 5.93, and the least
"aggressive" non-violent video game players administered an average
blast of 3.98. There was only a two point difference, and both averages

were in the middle of the intensity scale.
50

However, the "two point" difference could also be described as a near fifty

percent increase. It is also not clear what the significance of being near the

middle of the scale is and whether a two point difference at one end would really

be any different.
51

The court also addressed the recent brain science results regarding violent
media. Dr. William Kronenberger testified regarding an experiment in which the

functioning of the brains of adolescents engaged in a computer recognition task

were examined using functional magnetic resonance imaging.
52

The results
showed that adolescents with greater exposure to violent media had a brain

functioning in the regions of the brain normally associated with aggressive or

violent behavior or with inhibition that differed from the brain functioning of

children with less exposure to violent media.
53

Furthermore, the functioning of

the high exposure group was similar to that of adolescents diagnosed with

disruptive behavioral disorders.
54

In response, the industry offered rebuttal from a cognitive psychologist who
criticized two assumptions he saw as affecting the studies. The first criticism was
that it had been assumed that there was a "one-to-one relationship" between

behaviors and brain regions, and the second was that it had been assumed that a

decrease in activity in a region of the brain should be considered an impairment

or deficiency and that "decreased activity can signal expertise or use of an

alternate method to complete the assigned task."
55

Even accepting that criticism

49. Id. at 1060-61 (discussing studies briefly). There is also a citation to an article on the

causation issue. Id. at 1061 (citing Douglas A. Gentile & Craig A. Anderson, Violent Video
Games: The Effects on Youth, and Public Policy Implications, in HANDBOOK OF CHILDREN,

Culture, and Violence 225, 232 (N. Dowd et al. eds., 2006)).
50. Id. at 1061.

5 1

.

The percentages would of course change. A two-point increase from eight to ten would
only be a twenty-five percent increase, while a two-point increase as the lower level approaching

zero would grow without bound. As to the issue of being mid-scale, it depends entirely on how the

scale is set up.

52. Entertainment Software Ass'n, 404 F. Supp. 2d at 1063-65.

53. Id.

54. Id.

55. See id. at 1066.



62 INDIANA LAW REVIEW [Vol. 41 :55

as valid, and there seemed to be no offering of evidence of any such alternative

method, the result is still that there is a decrease in that region of the brain

normally responsible for controlling behavior, and the resultant functioning is

more similar to the functioning of a disruptively behaviorally disordered

adolescent than a normal adolescent.

Had that been the end of the court's analysis, coupled with a conclusion that
the State had not demonstrated the necessity of violent video game bans to meet
the compelling government interest in the physical and psychological well-being

of youth, the conclusion might arguably have been wrong, but it would only have

been another in a short line of cases saying the science is not yet there. The court,
however, went on to make an error of law that poses a more serious threat to
future attempts, and if the science is correct, to the nation's youth.

Adopting the industry's legal theory, the court said that "when it comes to
regulating expression protected by the First Amendment, the state may regulate
only expression that meets the requirements of Brandenburg v. Ohio."

56 As the
court explained, "the State may regulate protected expression based on the belief
that it will cause violence only if the expression is directed to inciting or

producing imminent lawless action, and is likely to incite or produce such

action."
57

However, Brandenburg is not the appropriate test. Brandenburg

concerned a meeting of the Ku Klux Klan and whether the leader of the rally
could be charged under a criminal syndicalism law.

58
It was the culmination of

a long line of cases stretching from World War I through the Cold War, all of
which addressed rallies or speeches at which the audience was exhorted to

perform some illegal act.59 Brandenburg is the test for charges of attempting to
cause public disorder, criminal solicitation, or accessory liability based on that

solicitation. It is even an appropriate test for tort liability of a speaker, when a
member of the speaker's audience commits an unlawful act.60 It is not the
appropriate test for the sort of public health argument offered in the case of video

games.

The inappropriateness of Brandenburg is demonstrated by an admittedly far-
fetched example. Suppose the science developed in the direction of showing that

56. Id. at 1073 (citing Brandenberg v. Ohio, 395 U.S. 444 (1969)).

57. Id. (citing Brandenberg, 395 U.S. at 447).

58. See Brandenberg, 395 U.S. at 444-47.

59. See id. at 447-48.

60. Thus, Brandenburg is relevant when a victim or victim's survivors sue a video game

manufacturer on the theory that the crime was the result of video game play. See James v. Meow
Media, Inc., 300 F.3d 683 (6th Cir. 2002). It was also the relevant test in Zamora v. Columbia

Broadcasting System, 480 F. Supp. 199 (S.D. Fla. 1979), a case in which the claim was that a

television caused a criminal act. Furthermore, it was relevant in Rice v. Paladin Enterprises, Inc.,

128 F.3d 233 (4th Cir. 1997), wherejudgment against the publisher of a manual for contract killers

was used in the commission of a multiple murder. There was a lack of imminence between the

publication date and the murders, but the admission by the publisher that it expected and intended

that the manual be used as it was, combined with the detailed instructions, allowed liability to be

imposed. Id. at 249.



2008] SHIELDING CHILDREN 63

thirty years of violent video game play invariably caused the deterioration of the
entirety of the brain region or regions responsible for judgment and inhibition.

Invariably, such players become extremely violent and incapable of controlling
their emotions. If Brandenburg is the test, the state could not prohibit video game
play, even in light of this evidence. The video game makers would still not
intend to incite or produce the lawless action. There would also not be the

imminence that the court here required, at least until just before the violent effect

hypothesized was about to occur and clearly after there had been significant

damage to the players' brains.
Brandenburg is best seen as a way of meeting strict scrutiny, when the

concern is intentionally induced lawless action. The serious lawless action
provides the compelling interest, and the imminence indicates that stopping the

speech is necessary to that interest. If the act were not imminent, the remedy

would be counter speech, rather than a ban. However, Brandenburg is not the

only way to meet strict scrutiny where speech is involved. The Supreme Court,
in Burson v. Freeman,^ recognized the applicability of the more traditional strict
scrutiny test. That case involved a Tennessee statute barring campaigning within

one hundred feet of any polling place.
62

While the speech involved, political

speech, is at the core of the First Amendment, the Court found a compelling
interest in elections being free from coercion and fraud and that the ban was

necessary to that interest.
63

Bans on violent video game play by children may have to meet strict scrutiny,
assuming the rejection of the obscenity theory of the district court in the

Indianapolis case and the lack of protection argued by the district court in the St.

Louis case, but they do not have to meet the test of Brandenburg. Instead, there

needs to be a compelling government interest, and the physical and psychological

well-being of youth is such an interest. There also needs to be a demonstration

that the ban is necessary to that interest, a showing that has so far been seen as

lacking in the existing science.

Another recent case declared a California statute unconstitutional.
64

The
opinion broke no new ground in analyzing the scientific evidence. The court
simply surveyed the prior case law, including the Seventh and Eighth Circuit

Indianapolis and St. Louis cases, the Washington and Illinois district court

opinions, and the preliminary injunction against the enforcement of the Michigan

statute,
65

and from those opinions determined that the plaintiffs were likely to

prevail on the merits of their claim of unconstitutionality.
66

However, the California court did reach several conclusions that are

61. 504 U.S. 191(1992).

62. Id. at 193.

63. Id. at 199.

64. See Video Software Dealers Ass'n v. Schwarzenegger, 401 F. Supp. 2d 1034 (N.D. Cal.

2005).

65. The opinion and judgment establishing the permanent injunction against the Michigan

statute is discussed infra note 77 and accompanying text.

66. Video Software Dealers Ass'n, 401 F. Supp. 2d at 1043-44.



64 INDIANA LAW REVIEW [Vol. 41:55

important to any continuing efforts to limit the access of children to these games.

First, the plaintiffs argued that the analytic framework to bring to bear in the case

is that found in Brandenburg, but the court rejected that approach.
67

The court
recognized that Brandenburg applies to expression directed to producing or

inciting imminent illegal acts, but it said "[t]he Act seems to be intended more to
prevent harm to minors than preventing minors from engaging in real-world
violence."

68 As the court recognized, the claims against violent video games are
not that their designers and manufacturers are trying to induce minors to commit

violent acts or that they are teaching children dangerous ideology. Rather the

claims are that the games cause psychological and even neurological damage to
children, damage which may eventually manifest itself in violence, unintended
by the game developers and not driven by the developers' ideologies. There have
also been claims that the games may teach skills that are dangerous for children
to possess.

69 The court applied strict scrutiny, and given the rejection of the
scientific evidence by other courts, found the statute to fail that test.

70

A second important point from the California court's opinion is found in its
rejection of the defendants' theory of the case in deciding the strict scrutiny

standard. As had the prior courts, with the exception of the Indianapolis court,
the court rejected reliance on Ginsberg v. New York.71 Ginsberg upheld a New
York statute addressing material that is harmful to minors, using a variable
obscenity doctrine that judged obscenity by a standard applicable not to adults,

but to minors.
72 The California court did not follow the defense suggestion,

noting that neither the Supreme Court nor the Ninth Circuit had extended

67. Id. at 1045.

68. Id.

69. David Grossman, a former psychology instructor at the U.S. Military Academy discusses

the shootings by Michael Carneal at Heath High School in the Paducah, Kentucky area. See DAVE

Grossman & Gloria DeGaetano, Stop Teaching Our Kids to Kill: A Call to Action
AgainstTV, MovieandVideogameViolence 75-76 (1999). Carneal killed three and wounded

five, all with wounds to the head or upper torso, with only eight or nine shots. See id. at 76.

Carneal developed this remarkable accuracy not through firearm training, but through video game

exposure, and that training was reflected in his manner. See id. Carneal

never moved his feet during his rampage. He never fired far to the right or left, never

far up or down. He simply fired once at everything that popped up on his "screen." It

is not natural to fire once at each target. The normal, almost universal, response is to

fire at a target until it drops and then move on to the next target. This is the defensive

reaction that will save our lives, the human instinctual reaction—eliminate the threat
quickly. Not to shoot once and go on to another target before the first target has been

eliminated. But most video games teach you to fire at each target only once, hitting as

many targets as you can as fast as you can in order to rack up a high score. And many

video games give bonus effects ... for head shots.

Id. at 75-76.

70. Video Software Dealers Ass'n, 401 F. Supp. 2d at 1048.

71. See id. at 1045 (citing Ginsberg v. New York, 390 U.S. 629 (1968)).
72. Id.



2008] SHIELDING CHILDREN 65

Ginsberg beyond the sexual focus of that case.
73

However, the court went on to

state that

[n]or, on the other hand, have the plaintiffs shown that either the
Supreme Court or the Ninth Circuit has ever held that sexual obscenity
represents a unique category of expression that is the only category to

which a state may permissibly restrict minors' access without running
afoul of the First Amendment.

74

The California court then, while not following the lead of the Indianapolis court,
recognized that at the Supreme Court level, and at its own circuit level, the theory
had not been rejected.

75

The last point to be drawn from this case is in the court's response to the
plaintiffs assertion that the California statute was unconstitutionally vague.

Without going into the details of the definitions contained in the statute, the court

concluded that they were sufficient for the ordinary person to apply to the video

games at issue.
76

Thus, the California court established that the task of defining

the category of games to which violent video game statutes apply is not
impossible. Legislatures drafting later statutes may be guided by the approach
found in the California statute.

The decision of the Michigan federal district court,
77

in striking down that
state's statute, was less than clear in terms of the applicable theory. It was clear

that the court rejected the State's reliance on Ginsberg, but when it came to the
plaintiffs' suggestion that Brandenburg is the proper test, the court stated both

that test and the strict scrutiny test.
78

Since the court indicated that neither test

would be satisfied,
79

in the end it may have made no difference, but again, it
should be pointed out that the proper test is strict scrutiny. There may be no
difference now, but if the science continues to develop to the point where the

need to limit violent video game access is seen as necessary to the well-being of
youth, the choice of test will be important.

Still more statutes were enacted in 2006 and quickly met the same fate. A
Louisiana statute again criminalized the sale or rental to minors of violent video

games, but it was struck down in Entertainment Software Ass'n v. Foti.m The
federal district court granted a preliminary injunction against the enforcement of

73. Id.

74. Id.

75. On this topic, see generally KEVIN W. SAUNDERS, VIOLENCE AS OBSCENITY: LIMITING

the Media's First Amendment Protection (1996).
76. Video Software Dealers Ass'n, 401 F. Supp. 2d at 1041-42.

77. Entm't Software Ass'n v. Granholm, 426 F. Supp. 2d 646 (E.D. Mich. 2006). The

Michigan statute provided a defense based on the video games industry's ratings. No one could

be convicted if the sale was to a person within the age rating for the game involved.

78. Id. at 651-52.

79. Id. at 651-55.

80. 451 F. Supp. 2d 823 (M.D. La. 2006).



66 INDIANA LAW REVIEW [Vol. 41:55

the ordinance and in doing so, followed the lead of the earlier cases.
81

The court
took as well established that video games enjoy First Amendment protection, and
since it involved sales rather than play, not drawing the distinction between the

software and presentation, on the one hand, and game play on the other, was
proper.

82
Thus, strict scrutiny is required, but this court also seemed to believe

that the Brandenburg test is the only way to meet strict scrutiny where violent
media is involved.

83
"Seemed" is the right word because the court went on to

consider evidence that would speak to the dangerousness of the media on a basis

other than advocacy of violence.
84

That evidence was rejected, based primarily

on the fact that it had been rejected by other courts, but it was also noted that the

legislative record was rather weak, relying on secondary sources rather than

primary source psychological studies.
85

A second 2006 statute took a different approach with the same result. A
Minnesota statute would have imposed a fine for the sale of violent video games

not on the retailer, but on the minor buying a game rated beyond the child' s age.86

Again the industry challenged the statute, and in Entertainment Software Ass'n

v. Hatch*
1
the federal district court issued a permanent injunction.

88
Following

previous courts, the court took video games as protected and applied strict

scrutiny, properly looking for a compelling interest to which the statute was

necessary or narrowly tailored.
89

In so doing, the court found the evidence

lacking as to video games harming the physical and psychological well-being of

youth.
90 The court was also concerned with the statute's sole focus on video

81. Id. at 837.

82. See id. at 829-31.

83. See id. at 830-33.

84. See id. at 832.

85. See id.

86. Minn. Stat. § 3251.06 (2006).

87. 443 F. Supp. 2d 1065 (D. Minn. 2006).

88. Id. at 1073.

89. Id. at 1068-70.

90. Id. at 1069. Given that not that much time had elapsed since the previous year's cases,

the result is certainly not surprising. It is still important to note, however, that as the science

develops, it may reach the point where prior determinations of inadequacy may no longer apply.

More disturbing in the opinion is the suggestion that science can demonstrate only correlation

rather than causation. See id. at 1069-70. The move from correlation to causation is common in

many other areas, and laboratory experiments and certain factors in longitudinal studies can

indicate causation.

There is also a footnote in the opinion that may indicate a lack of understanding of how meta-

analysis works. The court said, seemingly with skepticism, that "Dr. Anderson's meta-analysis

seems to suggest that one can take a number of studies, each of which he admits do not prove the

proposition in question, and 'stack them up' until a collective proof emerges." Id. at 1069 n.l.

That is just what meta-analysis can do, and it makes common sense. The significance of a result

depends in part on the size of the samples. The fact that a single apple drawn from one barrel is

sweeter than a single apple drawn from another may not lead one to make confident statements



2008] SHIELDING CHILDREN 67

games as a source of danger and with due process in the adoption of a rating

system developed by a nongovernmental body.
91

All the statutes have been struck down, and that is why the alternative
presented here is being suggested. The alternative suggestion is not based on any
conclusion that courts always will continue to reject bans on children's access to

violent video games. The science may well develop to the point that the bans are
seen as justified, at least as long as the courts apply the correct strict scrutiny test

and are not led by the industry into the incorrect view that Brandenburg is the test

to apply. The suggestion offered is a stopgap measure designed to help parents
limit their own children's access until that time may come. Of course, if the
industry prevails on the test to apply or if the science never develops, the

suggestion made here may have to serve its protective role indefinitely.

II. Ratings, Stings, and Web Site Lists

A. The Video Game Industry Rating System

The Entertainment Software Rating Board ("ESRB") has established a rating
system for video and computer games.

92 Games fall into one of six rating
categories. A game rated "Early Childhood" is seen as appropriate for ages three
and older and "[c]ontains no material that parents would find inappropriate."

93

Games rated "Everyone" are seen as suitable for everyone aged six or older and
may contain mild violence.94 "Everyone 10+" rated games are said to be
appropriate for ages ten and above and may contain an increased amount of mild
violence.

95
"Teen" rated games, seen as appropriate for those thirteen and older,

"may contain violence . . . [and] minimal blood."96 Games rated "Mature" are
said to be suitable for those seventeen and older and "may contain intense

about the overall differences between the qualities of the two lots. A consistent result over a dozen
makes one more confident and over a gross may give one great confidence. Meta-analysis allows

the combination of many studies that may involve samples inadequate to establish a result to be

combined. If the single apple "study" is replaced not by a study of a gross of apples from each

barrel, but is augmented by an additional 143 single apple studies, the same increase in confidence

is warranted.

91. Id. at 1070-71. The Michigan statute had provided a definition for violent video games

and then allowed the fact that a sale was in accord with the ratings as a defense. Here the offense

was defined by the ratings. See Entm't Software Ass'n v. Granholm, 426 F. Supp. 2d 646 (E.D.

Mich. 2006).

92. Entertainment Software Rating Board, Game Ratings & Descriptor Guide, http://www.
esrb.org/ratings/ratings_guide.jsp (last visited Nov. 26, 2007). The organization's web site explains

the ratings process, and the ratings and descriptors that result from that process. Id.

93. Id.

94. Id.

95. Id.

96. Id.



68 INDIANA LAW REVIEW [Vol. 41:55

violence, blood and gore."
97 The highest rating, "Adults Only," should be played

only by those eighteen and older and may include "prolonged scenes of intense
violence."' Violence is not the only input in the determination of a rating;

language, sexual themes, and gambling may play roles as well." The ESRB also
provides content descriptors for the games indicating levels or types of violence,
nudity, drug or alcohol use, etc.

100

The ratings and descriptors are the result of a process spelled out by the
ESRB. Before they release a game, publishers submit a response to an ESRB
questionnaire regarding the game's content.

101
The publisher also provides a

videotape or DVD that is supposed to depict the most extreme content in terms
of violence, sex, language, etc.

102 The submissions are examined by trained game
raters, all of whom are adults and typically have professional or parental
experience with children.

103 The raters use their own judgment, but are checked
for consistency both among the independent raters of the particular game and
from game to game. 104 If a publisher does not like the rating a game receives, the
content may be changed or the rating appealed to a board "made up of publishers,
retailers and other professionals."

105

The ratings have no legal force, as the video game cases demonstrate. The
ESRB can impose sanctions against publishers who voluntarily submit to the
ESRB's jurisdiction, but that only addresses the rating process itself. 106 With
regard to retail sales, the ESRB says it works with retailers and game centers to
provide in-store signs explaining the ratings and supports training store

employees on the ratings system;
107

however, there is no enforcement involved.

There is some dispute as to how effective the ratings are in helping parents
determine what games are appropriate for their children. A study by researchers
at Harvard revealed differences over what ratings and descriptors should have

attached to particular games.
108 Of the games they studied, the researchers found

97. See id.

98. Id.

99. Id.

100. Id.

101. Entertainment Software Rating Board, Ratings Process, http://www.esrb.org/ratings/

ratings_process.jsp (last visited Nov. 26, 2007).

102. Id.

103. Id.

104. Id.

105. Id. It is not immediately clear from what profession the professionals are to be drawn.

106. Entertainment Software Rating Board, Enforcement, http://www.esrb.org/ratings/

enforcement.jsp (last visited Nov. 26, 2007).

107. See id.; see also Entertainment Software Rating Board, Retailers, Frequently Asked

Questions, http://www.esrb.org/retailers/faq.jsp (noting that game centers that register with ESRB
may download ratings education material or order ratings signs) (last visited Sept. 1, 2007).

108. Kevin Haninger & Kimberly M. Thompson, Content and Ratings of Teen-Rated Video
Games, 291 JAMA 856 (2004), available at www.kidsrisk.harvard.edu/mainFrame/news/faqs4.
html.



2008] SHIELDING CHILDREN 69

that 48% of the sample could have had, but did not have, an ESRB descriptor. 109

In another 9% of the games there was a descriptor, but the researchers did not
find the material indicated.

110
This failure to find the material may well be due

to the fact that the games were played for only one hour, and the material

described could be in later stages of the games. The study led to
recommendations that there be greater clarity in the descriptors and in the overall

rating process and that the rating process include playing the games.
111

The National Institute on Media and the Family also suggests that the ESRB
ratings underrate some games, rating them as appropriate for teens, when they
should, in the Institute's view, be rated for a mature audience.

112
This criticism

has been repeated by legislators. For example, Senator Sam Brownback has
argued for a "Truth in Video Game Rating" Act that would require raters to play
the games '"in their entirety'" and would provide punishment for rating groups

that '"grossly mischaracterize"' game content.
113 On the House side,

Congressman Joe Baca has been a regular critic, arguing that the ratings are not

sufficiently clear and do not provide enough information and that parents are thus

misled.
114

On the issue of parents being misled, there is some question as to how much
input parents have been playing in the purchase of video games. The National
Institute on Media and the Family found that its survey did not really comport
with ESRB claims that 74% of parents regularly use the ratings and that 94% find
them helpful.

115
Their study showed that while 73% of parents say that they

always help decide on the games their children buy or rent, only 30% of children
reported that their parents played such a role.

116

Whatever may be the role of parents and the accuracy or appropriateness of
the ratings, adherence to the ratings at the retail level would provide some
protection for children. Indeed, it is a protection with which the Michigan statute

was seemingly satisfied.
117

If the ratings have little such effect, they are merely

window dressing. That, of course, leads to the question of retail practices.

109. Id.

110. Id.

111. Id.

112. David Walsh etal., Nat'l Inst, on Media & the Family, 11 th AnnualMediaWise
Video Game Report Card 2 (2006), available at http://www.mediafamily.org/research/2006_

Video_Game_Report_Card.pdf.

113. See Anne Broache, Senator Wants to Ban "Deceptive" Video Game Ratings, CNET
News.com, Feb. 14, 2007, http://www.news.com/2100-1028_3-6159413.html. In response, a

representative of the Entertainment Software Association questioned whether one could "play a

game in its 'entirety' when a game has no defined end?" See id. While the games have no defined

end, they do have finite content that sufficient play would seem likely to expose.

114. See, e.g. , Claire Vitucci, Baca Pushes to Clarify Video-Game Ratings, PE.COM, Apr. 27,

2006, http://www.pe.com/localnews/inland/stories/PE_News_Local_H_game27.fddc7b9.html.

115. See WALSH et al., supra note 1 12.

116. Id.

111. See supra note 77.



70 INDIANA LAW REVIEW [Vol. 41:55

B. A History ofSting Operations

The ratings, no matter how much information they may provide, are not
prohibitions. They can serve a role in letting parents know the content of games
available for sale or play and guide them in their choices if they purchase games
for their children. They cannot, without more, limit the ability of children to buy
the games themselves. Indeed, this has been the focus of statutes tying bans to
the ratings system. It is an effort, however, that the industry has fought with

success. Even when the only attempt is to bar sales of games to children below
the age at which the industry established ratings regime has said is appropriate,

the industry has balked. Because the ratings have not been legally enforceable,

the only source of limitation on direct sales to children would have to be with
retailers and the operators of video arcades. Those limitations have only been
partially successful.

The limited success in the retail realm is shown by sting operations or
undercover shopping. While there are smaller local or state efforts to test the
vigilance of the retail sector in enforcing the ESRB ratings, 118 there are also more
widespread, even national, studies. The Federal Trade Commission conducted
undercover shopping tests in 2000, 2001, 2003, and 2005.

119
Children between

the ages of thirteen and sixteen were sent into stores, without a parent, to attempt

to purchase an M-rated game, that is, a game rated as suitable for those seventeen
and older.

120
The most recent study, starting in 2005, but running into January

2006, tested 406 stores in forty-three states.
121

The results over the four studies show increasing diligence on the part of
retailers. In 2000, 85% of the attempts were successful. 122 That dropped to 78%
in 2001, 69% in 2003, and 42% in 2005. 123 While the progress is positive, it is
still the case that in better than two of five attempts, the child was able to
purchase an inappropriate game.

118. See, e.g., Emily Robinson, Sting Targets Video Games, St. News, Nov. 10, 2000,

available at http://www.statenews.eom/index.php/article/2000/l l/sting_targets_video_games

(discussing sting operation by then Michigan Attorney General Jennifer Granholm). The ESRB
Retail Council requires member retailers to participate in two "mystery shopper" audits per year.

See Entertainment Software Rating Board, ESRB Retail Council, http://www.esrb.org/retailers/
retail_council.jsp (last visited Aug. 19, 2007). The results, however, are published only "in

aggregate." Id.

1 19. For the results released in March 2006, see Fed. Trade Comm'n, Undercover Shop

Finds Decrease in Sales of M-Rated Games to Children: Results from the 2005

Nationwide Undercover Shop Demonstrate Need for Continuing Improvement (2006),
http://www.ftc.gov/opa/2006/03/videogameshop.shtm. The publication recounts the results of all

four studies.

120. Id.

121. Id.

122. Id.

123. Id.



2008] SHIELDING CHILDREN 71

A second measure looked at was whether the cashier or clerk asked the child
his or her age. The progression in stores asking age, over the four periods
studied, went from 15% to 21% to 24% to 50%. 124 Again, the increase in likely
inquiry is positive, but 50% of the children were still not asked.

An interesting difference is seen when stores that are part of a national chain
are compared with local or regional retailers. At the national retailers, 35% of the
children were successful, while at the local and regional stores, 63% were
successful.

125 Of the national retailers, 55% asked the child his or her age, while
the local and regional retailers asked the child's age only 35% of the time. 126

The National Institute for Media and the Family conducted its own series of
undercover buy attempts.

127
The most recent, conducted in 2006, used a much

smaller sample of twenty-five retail locations in five states.
128

That series of

studies in four consecutive years showed a similar decrease in successful
purchases by children, although not with the same monotonicity. In 2003, 55%
had been successful; in 2004, 34% were successful; in 2005 it was 44%; and in
2006, 32% were successful. 129 The variability in small samples is not surprising,
and again the general trend in decrease is a positive development. The Institute
also found the same difference between national and local retailers. Best Buy,
Target, and Wal-Mart all had perfect scores, but "specialty stores seem more
interested in making money than anything else," and buys were successful half
the time.

130

National chain stores are, of course, also interested in making money.
Perhaps they are also more socially responsible, but it may instead be that they
are more wary of negative publicity. A failure by a national chain to limit the
access of children to Mature-rated games could generate national negative
publicity. The failure of a local store to do so has, so far, seemed to generate no
publicity aimed at the particular store. While it is worth lauding the practices of
Best Buy, Target, and Wal-Mart, it would also be worth making available to the
public the identity of stores that are not as socially responsible.

There also seems to be a dearth of studies of video game arcades. Perhaps
this is due to a reluctance to expose the underage testers to the violent depictions

playing the games would involve. After all, buying the game exposes the child
only to the box, while playing the game exposes the child to the action of the
game. Given the largely local nature of video game arcades, it would seem
reasonable to expect that children would be at least as successful in playing the
games as they were in buying them from local and regional retailers. There is
also the fact that there is less likely to be the one-on-one encounter with a clerk

or cashier that would provide the easy opportunity to ask for an indication of age.

124. Id.

125. Id.

126. Id.

127. See WALSH ET AL., supra note 1 12.
128. Id.

129. Id.

130. Id.



72 INDIANA LAW REVIEW [Vol. 41:55

C. The Sting/Web Site Proposal

What is proposed here is that there be more regular and widespread conduct
of undercover shopper and undercover player operations. These operations

would be coupled with web sites, modeled on the sex offender web site, on which
those establishments making inappropriate games available to children would be
listed. Rather than national studies of retailers, which may provide the parent
with little or no information regarding the local store, local studies would allow
parents to know where their children can safely shop or play.

Local or state authorities would arrange for children to attempt to purchase
age-inappropriate games. The same would occur involving attempts to play
inappropriate games in video arcades. While there might be reluctance to expose

children to the violent images in the games, children could at least start to play

to see if they were interrupted by the arcade operator. Rather than a statistical

result for success and failure, a list of the individual stores and arcades that failed

to limit youth access would be compiled.

The web site aspect of the proposal is necessary to its success. Even if a local
operation is conducted and there is immediate local publicity, the rapidity with

which the results would become old news would lessen its impact. If the results
are maintained on a web site, either one provided by the local government unit
or perhaps better by a state government web site searchable by postal code, the
publicity would not fade away. Parents could always turn to the web site to know
how concerned the retailer or arcade is with their children's exposure to games
rated beyond their ages.

There should be follow-up studies, both out of fairness to retailers and arcade

operators, and so as not to be self-defeating. It would be self-defeating if, once

a retailer or arcade operator is on the list, it always remained on the list. There

would then be no incentive to change its practices. Furthermore, a retailer or

arcade operator that sees the error of its ways ought to have the opportunity to

clear its record. A later undercover buy or play operation in which the child was
refused access should remove the retailer or operator from the web site list. The
follow ups do not have to occur at great regularity because a period on the list is

to serve as a deterrence, but they should occur at reasonable intervals.
131

The effect of these controlled efforts would be to provide a disincentive to
retailers and arcade operators to provide age-inappropriate games to children.

Parents have the choice of not allowing their children to shop at stores that are on

the list. Indeed, parents may themselves choose not to patronize such stores.
Parents may also choose not to allow their children to spend time at video arcades
or the malls that contain them, if the arcade does not prevent children from

playing games rated beyond their age. Parents themselves may also complain to

131. The most appropriate length of the interval between original and follow up attempts

would seem to be an empirical question. Experience will indicate how long a retailer or operator

will have to remain on the list to provide sufficient deterrence, while still providing incentive to

improve.



2008] SHIELDING CHILDREN 73

mall operators or choose not to shop at the malls containing the offending

arcades.

Any of these possible effects brings economic pressure on stores and malls
to prevent children from buying or playing these games. It is important to note

that the direct economic pressure comes not from the government, but from

private citizens. It is parents and others who would refuse to shop at or would
complain to stores and malls. While the governmental entity involved would

provide the information so that parents know what to target for their criticism, the
direct pressure is not governmental. The video game industry might well still see
a First Amendment concern in these operations and web lists, but the program
should stand up to a First Amendment challenge. 132

D. Forbidden Fruit

The possibility of the web site lists serving as an enticement should also be
briefly considered. The "forbidden fruit" effect in which individuals seek out that
which is denied them is always a concern with bans. Any forbidden fruit aspect
of the games themselves is already present in the rating system. The web site list
does not itself rate games nor need it even indicate which games were

successfully purchased or played. Children know what games are rated as beyond
their age from walking through stores or arcades, and they gain no new
knowledge on that subject from the proposed web site list.

What children might glean from the list is the places at which others have
been successful in buying or playing the games. Again, children often know
where they can obtain goods not allowed to them, and they would probably have

knowledge of which retailers or arcade operators do not ask for proof of age

without the benefit of the list. Furthermore, once an entity goes on the list, the

negative publicity would, one would hope, have the effect of reducing the

likelihood that age-inappropriate games would continue to be accessible. This is,

at any rate, a contingent question. If the web site list turns out to be a furtherance
of children accessing these games, it can be discontinued. It seems more likely

that the economic pressure against the retailer or mall, where an independent

retailer or video arcade is involved, would lessen access.

in. Legal Issues Surrounding the Proposal

The First Amendment does not mention speech by the government. In
limiting the law making authority of the government, the Amendment speaks
most clearly to the protection of individual expression. This is, of course, the

variety of expression that needs protection against government limitations.

Leaving aside cases in which federal and state interests may be at odds, it seems
strange even to consider the need for the government to protect its speech from

its own abridgments. Yet, government does, and must, speak regularly. It
informs the people of its policies and, in providing the rationales for those

policies, may be seen as advocating positions on political or social issues. This

132. See infra Part III.A-B.



74 INDIANA LAW REVIEW [Vol 41:55

section will provide an examination of some of the early work on government
speech.

133
It will then turn to an examination of the cases in which speech by the

government has been argued to be an infringement of the speech rights of

others.
134

Lastly, it will turn to the possible due process issues that may arise in
compiling the web site list suggested.

135

A. Government Speech

An examination of scholarship in the area of government speech must begin
with the seminal work of Thomas Emerson. 136 Emerson recognized that
government participation in the public debate is both enriching and essential, but

that it also poses serious risks:

Emanating from a source of great authority . . . government expression

carries extra psychological weight for many citizens. It comes from
officials who often wield enormous actual power over those they address,
thereby evoking concern in the listener lest he offend the powers that be

by appearing to oppose. The government controls many of the sources
of information in the society. It also possesses almost unlimited capacity

to reach all members of the community . . . .
137

Despite this concern, Emerson argued that expression can remain free, as long as
the government's speech does not overpower other voices.

138

Emerson analyzed a number of issues arising out of government speech, but
the one relevant to the discussion here is in a section titled, "Use of Government

Expression as a Sanction Against Private Expression."
139

That would be the

claim of the video game industry against the sting and web list proposed here.
Any government sponsored web list would certainly be government expression,
and the industry would argue that it is an attempt to sanction stores, arcades, and

malls for their own delivery of expression to children. Emerson sought to balance
the government's right of expression with the "special impact" it could have on

the system of free expression. In doing so, he pointed to the concern most often

raised by the cases.
140

Most commonly [deterrence or suppression] takes place when the

133. See infra Part III.A.

134. See infra Part III.B.

135. See infra Part III.C.

136. See Thomas I. Emerson, The System of Freedom of Expression 697-716 (1970).

Emerson does cite earlier, less comprehensive works: Zechariah Chafee, Jr., Government and

Mass Communications: A Report from the Commission on Freedom of the Press (1947);
Ted Finman & Stewart Macaulay, Freedom to Dissent: The Vietnam Protests and the Words of
Public Officials, 1966 Wis. L. Rev. 632. See Emerson, supra, at 698 n.l.

137. Emerson, supra note 136, at 698.

138. Id.

139. See id. at 699-708.

140. See infra Part III.B.



2008] SHIELDING CHILDREN 75

government expression hints at or threatens official reprisals against

persons or groups holding views in conflict with official policy; or when
the government expression arouses hostility in the community against

certain opinions and thereby brings private economic and social

pressures to bear on those who espouse the unpopular position. 141

The first of these two possibilities raises the more serious problem. Government
speech hinting at or threatening a reprisal may certainly suppress private speech
as effectively as a statute authorizing the same sort of sanction. The second is
less clear. If the government expresses disagreement with a view and the public

comes to recognize the danger or foolishness of that view and refuses to deal with

those expressing it, that may not be a violation of the First Amendment. After all,
in that situation, the government is not really in any different position than that

of any influential media figure. If, however, there is an implication to the public

or other entities that they themselves may be threatened by the government if they
continue to deal with the person or entity whose speech the government does not
like, that raises a problem similar to the first Emerson presents.

Emerson ends up concluding that government speech is worth retaining and

protecting.
142

In fact, he argues that government speech and private speech

should be accorded the same level of respect and that judicial relief against

government speech raises similar difficult problems.

The argument that government officials "must be free to speak . . .
without fear of criminal or civil liability," and that their right of

expression "would be of little value if they could be subjected to the cost

and inconvenience and distractions of a trial," are the same arguments

that justify the full protection doctrine for private expression.
143

Professor Emerson's initial foray into the area did not ignite an immediate

interest in the topic, and when Professor Mark Yudof addressed the issue almost
a decade later, he still found the topic "largely ignored" in the legal literature.

144

Professor Yudof argued against the recognition of a constitutional right protecting
government expression, but again, except in the case of the federal government

attempting to limit a state government's expression, it would seem that

government would need little protection against itself. What Yudof appears to
have most in mind is legislative limits on speech by government officials and a
challenge by those officials, who as individuals would have First Amendment
rights, but might be lacking those rights in their official capacities.

145
In that

regard, Professor Yudof argues that the legislature, rather than a court, is in the
best position to determine the negatives that may attach to government

141. Emerson, supra note 136, at 699-700.

142. Id. at 706.

143. Id.

144. See Mark G. Yudof, When Governments Speak: Toward a Theory of Government

Expression and the First Amendment, 57 TEX. L. REV. 863, 864 (1979).

145. See id. at 871.



76 INDIANA LAW REVIEW [Vol. 41:55

communication, and that leads him to suggest against recognizing any
constitutional right to such expression.

146
That, of course, is not the issue here,

at least if the web lists suggested have the support, or lack the specific rejection,
of the legislature. What is at issue is whether individuals have expression rights
that are violated by government speech.

Turning to the effect of government speech on the expression of others,

Yudof recognizes that government speech may overwhelm the speech of others,
but rejects regulation on that basis because of analytic and institutional

difficulties.
147 He also rejects limitations against "misleading" speech by

members of the executive branch, citing Justice Jackson for the proposition that
"if high level executive officers were held accountable for every misstatement or

omission, government leadership on vital matters or national concern might well

come to a halt."
148

Professor Yudof s conclusion is to suggest an ultra vires approach for the
courts not unlike the approach taken in dormant commerce clause cases.

149
It

should be left to the legislature to set the parameters of government speech.

"Courts should declare as ultra vires government speech activities that are

particularly offensive and that are likely to interfere with individual judgment,

unless they are specifically authorized by legislative bodies."
150

It seems unlikely

that test would result in a court finding a violation in the government speech

suggested here. There would not seem to be offensiveness, and it is unlikely that
the web site list would interfere with individual judgment. Given advertising
budgets and the ability of the video game industry to make its views known,
government speech would not be so dominant as to prevent the dissemination of

other views. Secondly, all that Professor Yudof would require, even if the web
list were offensive and likely to interfere, is that the legislature be on board. It is,

at most, an argument against unilateral executive action, not against action by the

government.
151

In an article effectively contemporaneous with Professor Yudof s, Professor

146. See id.

147. See id. at 897-906.

148. Id. at908. Professor Yudoffinds his teachings from Justice Jackson in Jackson's opinion

in Wickard v. Filburn, 317 U.S. 111,118 (1942).

149. See Yudof, supra note 144, at 917.

150. Id.

151. In a more recent article, Professor Yudof recognized the need for government speech,

even as a way of policy implementation.

An effective government must communicate, provide information, publicize its rules,

educate, persuade and amass public support for policies. These functions are as

legitimate as providing a national defense, regulating building construction practices,

providing access to medical care and social security, or delivering the mail. If there is

a hallmark of modern governments, apart from their bureaucratic structure, it is their

extraordinary reliance on communication as an instrument of policy.

Mark G. Yudof, Personal Speech and Government Expression, 38 CASE W. RES. L. REV. 671, 678

(1988) (footnotes omitted).



2008] SHIELDING CHILDREN 77

Steven Shiffrin added his take on government speech.
152 He began by noting that

the case law did not bar even government prescription of orthodoxy, such as

requirements that public school texts teach a specific point of view, although the

right to dissent from that orthodoxy is protected.
153 He also pointed to a number

of other government actions that require recognition that "speech financed or

controlled by government plays an enormous role in the marketplace of ideas."
154

In a search for limitations, Shiffrin, like Yudof, rejects the "drowning out"

approach, arguing that it lacks practicality and explanatory power.
155

While

recognizing the problem of possible government domination of the marketplace

of ideas, Professor Shiffrin recognizes that such domination may sometimes be
quite acceptable.

156 He concludes that an "eclectic approach . . . of definitional
or general balancing" is what is required.

157
In application, Professor Shiffrin

would find problems if there are no rules regarding "government departure[] from

electoral neutrality,"
158

although he recognizes the propriety of government

communication on controversial initiative issues,
159

and clearly an office holder

can state reasons why the voter should vote to return him or her rather than an
opponent. Outside the electoral process, Professor Shiffrin says that the task of

the eclectic approach is "to promote structures that help assure that government

speech does not overwhelm individual choice."
160

Again, even in that case, he

recognized that the government's speech may still be justified. 161 As with Yudof,
in the context of the suggestion offered here, there is not the danger of

government domination of the media that should even require the balancing

suggested.
162

152. See Steven Shiffrin, Government Speech, 27 UCLAL. Rev. 565 (1980).
153. Id. at 567-68 (citing W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) for the

protection mentioned).

154. Id. at 569 (pointing to government access to the mass media, the franking privilege,

publication of government reports, and grants and subsides affecting communication).

155. Mat 595.
156. Id. at 601 . Later in the article, he provides the example of a military instructor not having

the right to teach contrary to the commander's views, not because there is no drowning out, but

because of the need for uniformity and efficiency. See id. at 607-08.

157. Id. at 610.

158. Id. at 655.

159. See id. at 637.

160. Id. at 655.

161. See id.

1 62. In another roughly contemporaneous article, Professor Laurence Tribe addressed the issue

of government speech. He recognized that government need not remain neutral on controversial

issues, while recognizing a problem where government speech "drown[s] out private

communication." Laurence H. Tribe, American Constitutional Law § 12-4 (1978). He also
discussed, in the second edition of his book, the issue raised by the government labeling films as

propaganda and found that to raise constitutional difficulties. See Laurence H. Tribe, American

Constitutional Law 809-12 (2d ed. 1988). For the courts' different view on the "propaganda"
label, see infra notes 183-200 and accompanying text.



78 INDIANA LAW REVIEW [Vol. 41:55

B. First Amendment Case Law

There have been a variety of attempts to analyze the issue of government

speech in the context of developing case law. These efforts have resulted in

suggested rules as varied as the government speech analysis preceding the more
recent cases. One suggestion most deferential to government speech is to find a
violation of First Amendment rights only when that speech constituted actual
coercion.

163
Another asks whether the government's speech serves as a restraint

in a particular case, but then calls for a balancing of the negative and positive

effects of the government's expression.
164

Still another suggests a rule based on

whether the recipient of the government's speech felt threatened, whether the

intent of the government speaker was to censor, and if the censor was effective.
165

Rather than continue in an endeavor to draft general rules, this effort will turn to

an examination of the cases with an eye to seeing what they say about the violent

video game proposal contained herein.
The most important and the first case the video game industry or the retailers

are likely to cite, in any effort to enjoin the suggested approach, is Bantam Books,
Inc. v. Sullivan.

166
Bantam Books grew out of the efforts of the Rhode Island

Commission to Encourage Morality in Youth.
167

The Commission's duties
included educating the public regarding "obscene, indecent or impure language"

and pictures in a variety of material and to recommend prosecutions regarding
material tending to corrupt youth.

168
The Commission was also charged more

generally with combating juvenile delinquency and encouraging morality in

youth, and it had the authority to investigate, to educate the public, and to

recommend legislation and prosecution. 169

The Commission took its assigned duties seriously.

The Commission's practice [was] to notify a distributor on official
Commission stationery that certain designated books or magazines

distributed by him had been reviewed by the Commission and had been
declared by a majority of its members to be objectionable for sale,
distribution or display to youths under 1 8 years of age. . . .

163. See Jeffrey Brian Greenstein, The First Amendment v. The First Amendment: The

Dilemma ofInherently Competing Rights in Free Speech-Based "Constitutional Torts, "71 UMKC
L. Rev. 27, 57 (2002).

164. See Brian C. Castello, Note, The Voice of Government as an Abridgment of First

Amendment Rights ofSpeakers: Rethinking Meese v. Keene, 1989 DukeL.J. 654, 681-85.

165. See Beth Orsoff, Note, Government Speech as Government Censorship, 67 S. Cal. L.

Rev. 229, 251-54(1993).

166. 372 U.S. 58(1963).

167. Id. at 59. The members of the Commission were appointed by the Governor and served

five-year terms. Id. at 60 n. 1 . They were not paid for their work, although the State did cover the

expenses of the Commission. Id.

168. Id. at 59-60.

169. Id. at60n.l.



2008] SHIELDING CHILDREN 79

The typical notice . . . either solicited or thanked [the distributor] in
advance, for his "cooperation" with the Commission, usually reminding

[the distributor] of the Commission's duty to recommend to the Attorney
General prosecution of purveyors of obscenity. Copies of the lists of

"objectionable" publications were circulated to local police departments,

and [the distributor] was so informed in the notices.
170

It is not surprising that the distributors took the notices seriously. The reaction
of the major distributor in the state of the targeted publications was to refuse to
fill any new orders for the publications in the notice, to not fill pending orders,
and to order his representatives to pick up all unsold copies from the retailers to

be returned to the publishers.
171

Police would usually visit the distributor, shortly

after the notice was sent, and the distributor was able to demonstrate his

"cooperation," but as his testimony indicated, he took actions not out of public

spirit, but out of a fear of court action.
172

The response of the major distributor had a strong negative impact on the
availability in the state of the targeted books, and the books' publishers sought

an injunction against the activities of the Commission.
173

The defendants
contended that the body of obscenity law recognizing the fine line between the

obscene and the nonobscene, and the procedural requirements attached to

determining the side of the line on which material fell, did not apply to their

activities "because it does not regulate or suppress obscenity but simply exhorts

booksellers and advises them of their legal rights."
174

The Court did not accept the distinction between the Commission's work and
other efforts at addressing obscenity.

This contention, premised on the Commission's want of power to apply
formal legal sanctions, is untenable. It is true that appellants' books have

not been seized or banned by the State, and that no one has been

prosecuted for their possession or sale. But though the Commission is
limited to informal sanctions-the threat of invoking legal sanctions and

other means of coercion, persuasion, and intimidation-the record amply
demonstrates that the Commission deliberately set about to achieve the
suppression of publications deemed "objectionable" and succeeded in its
aim. We are not the first court to look through forms to the substance
and recognize that informal censorship may sufficiently inhibit the
circulation of publications to warrant injunctive relief.

175

In support of that last sentence, the Court cited to cases that involved threats

of prosecution or license revocation, or notices or listings by police chiefs or

170. Id. at 61-63 (footnote omitted).

171. Id. at 63.

172. Id.

173. Id. at 61.

174. Id. at 66.

175. Id. at 66-67 (footnotes omitted)



80 INDIANA LAW REVIEW [Vol. 41 :55

prosecutors of supposedly obscene, or objectionable films and publications.
176

All of these instances seem to include a direct threat or the sort of implied threat

of prosecution also found in this case.
177

It is clear in the Court's remaining analysis that it is this implied threat that

is the crux of the violation. As the Court noted, "[p]eople do not lightly disregard
public officers' thinly veiled threats to institute criminal proceedings against them

if they do not come around."178 It was this threat of criminal prosecution that
made the difference.

Herein lies the vice of the system. The Commission's operation is
a form of effective state regulation superimposed upon the State's

criminal regulation of obscenity and making such regulation largely

unnecessary. In thus obviating the need to employ criminal sanctions,

the State has at the same time eliminated the safeguards of the criminal

process. . . . The Commission's practice . . . provides no safeguards
whatever against the suppression of nonobscene, and therefore

constitutionally protected, matter. It is a form of regulation that creates

hazards to protected freedoms markedly greater than those that attend

reliance upon the criminal law.
179

The Commission's work was, in the Court's view, a form of administrative
prior restraint that faced the heavy, almost unbearable, burden due such

systems.
180

Even though prior restraints, in the form of injunctions, may be
obtained for obscene materials,

181
the sort of judicial review required for such

injunctions was not present under the Commission's procedures.
182

176. Id. at$7n.8.

177. There is also a Supreme Court case making it clear that vagueness is a problem for

statutes that impose classification, particularly under a statute that allows fines and license

revocation. In Interstate Circuit, Inc. v. Dallas, 390 U.S. 676 (1968), the Court considered the

work of a classification board determining the suitability of films for children. There were fines

for exhibiting such films without notice of a classification of unsuitable or for knowingly admitting

a child under sixteen unaccompanied by a parent or spouse, and the potential loss of license to show

such films for repeated violations of the statute. Id. at 680. The Court said that "[v]agueness and

[its] attendant evils ... are not rendered less objectionable because the regulation of expression is

one of classification rather than direct suppression." Id. at 688. In a separate challenge to the same

statute, the U.S. Court of Appeals for the Fifth Circuit objected to the inclusion of violent films

with those involving sexual expression. See Interstate Circuit, Inc. v. Dallas, 366 F.2d 590 (5th Cir.

1966). The Supreme Court case stemmed from a state court decision. See Interstate Circuit, Inc.

v. Dallas, 402 S.W.2d 770 (Tex. Ct. App. 1966), aff'd, 390 U.S. 676 (1968).

178. Bantam Books, Inc., 372 U.S. at 68.

179. Id. at 69-70.

180. Id. at 70; see, e.g., Near v. Minnesota, 283 U.S. 697 (1931).

181. See Kingsley Books, Inc. v. Brown, 354 U.S. 436 (1957).

1 82. Bantam Books, Inc. , 372 U.S. at 7 1 . The Court also noted that, while the assigned focus

of the Commission's work was the morality of youth, the effect of the procedures employed was

also to deprive adult readers the opportunity to obtain the works listed. See id. There have been



2008] SHIELDING CHILDREN 81

The video game industry could, then, try to make out similar claims against
sting/web site operations. The key difference between what was found
constitutionally flawed in Bantam Books and what is suggested here is the lack
of a criminal threat to make the effort truly coercive. It was perhaps the not so
subtle threat of prosecution that made the Rhode Island Commission's operations
a system of prior restraint. In the case of video games, the approach is

constitutional due to the fact that selling the games to children, even if the

children are below the age suggested by the industry ratings, is not illegal. The
industry's thus far successful effort to keep such sales legal removes the coercive

force from the publicity attendant to the operation of the sting and maintenance

of the web site.
The web site is still, however, government speech that, in a sense, disparages

a variety of video games and may chill sales of those games. That might be
argued to be sufficient to violate the First Amendment rights of designers and
manufacturers/publishers, but there are several cases that speak against this

argument.

The Supreme Court addressed a somewhat analogous issue in Meese v.
Keene.

m
Keene grew out of a challenge to certain aspects of the Foreign Agents

similar later efforts specifically aimed at adult magazines. See Council for Periodical Distribs.

Ass'n v. Evans, 642 F. Supp. 552 (M.D. Ala. 1986), ajf'd in part, vacated in part, 827 F.2d 1483

(1 lth Cir. 1987) (vacating lower court's order on attorney's fees). There, the local district attorney

employed informal means to suppress Playboy, Newlook, and Penthouse magazines, meeting with

distributors, suggesting that the magazines may be obscene under state law, but offering a civil

consent decree agreeing not to sell the magazines that could obviate the need for criminal

prosecution. Id. at 554-57. The court had no difficulty in finding a sufficient threat in the

suggestion as to be unconstitutional under Bantam Books. Id. at 562-65. Indeed, the court saw the

only difference between the two cases being that the threats in the Alabama case were "less subtle"

and the "threats of criminal prosecution more direct." Id. at 563; see also Bee See Books, Inc. v.

Leary, 291 F. Supp. 622 (S.D.N.Y. 1968) (enjoining police commissioner's practice of continually

stationing uniformed police officers in bookstore).

In what might seem a contrary case, the U.S. Court of Appeals for the First Circuit allowed

a state prosecutor and state police officer to operate informally. In State Cinema ofPittsfield, Inc.

v. Ryan, 422 F.2d 1400 ( 1 st Cir. 1970), the court considered a request for an injunction against the

prosecutor and officer from threatening arrest and prosecution for the exhibition of a particular film

or the seizure of the film, should the plaintiff fail to comply with the order. The court distinguished

the case from those brought against book and magazine distributors in that the advice here was

private and not a notice of disapproval delivered to the public. Id. at 1402. Further, advice directed

to a distributor was seen as unlikely to be challenged, given the large number of titles distributors

carry and the marginal value of challenging advice suggesting that a few not be distributed. Id.

The film exhibitor had the incentive to contest the advice, and the lack of a public aspect to the

notice would not cut into ticket sales. Id. The court found a good faith attempt to enforce the state

law, and it would not let the informal manner used lead to a finding of unconstitutionality without

bad faith. Id.

183. 481 U.S. 465 (1987).



82 INDIANA LAW REVIEW [Vol. 41:55

Registration Act.
184

The Act addressed, in part, the distribution of films produced

by a foreign government and aimed at influencing the public regarding a political

or public interest of that government.
185

Such films faced certain reporting

requirements and would be classified and labeled as "political propaganda."
186

The determination of whether the film did have the aim that activates the political
propaganda provisions was left to the Registration Unit of the Justice

Department.
187

In Keene, the Registration Unit determined that three

environmental films produced by the government funded National Film Board of

Canada, two on acid rain and one on the perils of nuclear war, were within the

scope of the provisions.
188

The challenge was brought by an elected official in California who wished
to show the films, but feared a negative public reaction to his showing foreign
"political propaganda" and the negative impact that could have on his political

career.
189 The Court was unswayed by the state senator's concerns, noting that

the word "propaganda" has two meanings.
190 One of the meanings may be the

slanted and misleading speech with which the plaintiff would not want to be

associated, but it also includes fully accurate advocacy materials deserving of

close attention, and both are considered proper usage.
191

The Court refused to find any First Amendment violation. 192 The Act did not
prohibit, restrain, or even burden distribution.

193
Nor did the government censure

the films.
194

To the contrary, Congress simply required the disseminators of such
material to make additional disclosures that would better enable the
public to evaluate the import of the propaganda. The statute does not
prohibit appellee from advising his audience that the films have not been

officially censured in any way. Disseminators of propaganda may go
beyond the disclosures required by statute and add any further

information they think germane to the public's viewing of the

materials.
195

The video game industry may argue that the case is inapposite, since the web site
might well be seen as censure, rather than as simply providing information for

parental use. Interestingly, this issue is addressed by another case hearing a

184. Id.; 22 U.S.C. §§611-621(1982).

185. See Keene, 481 U.S. at 469-70.

186. Id. at 470-71.

187. See id.

188. Id. at 468, 480-81.

189. Id. at 467-68.

190. Id. at 477.

191. Mat 477-78.
192. Id. at 485.

193. Mat 480.
194. Id.

195. Id. at 480-81 (footnotes omitted).



2008] SHIELDING CHILDREN 83

separate challenge to the same statute and films under review in Keene.

In Block v. Meese,
196

the U.S. Court of Appeals for the District of Columbia

Circuit heard an appeal arising from a challenge brought by a distributor of the

same Canadian films. While taking the same view as the Supreme Court that

there is no limitation on distribution and no actual expression of government

disapproval in the use of the word "propaganda," the opinion, written by now
Justice Scalia,

197
goes beyond the Supreme Court's analysis to consider in some

detail the result, if "propaganda" were to be considered a term of disapproval.

His conclusion is that, even if the labeling were an expression of disapproval of

the ideas conveyed, there is no precedent or reason to find that labeling

unconstitutional.
198

"Not every governmental action which affects speech

implicates the first amendment."
199

Judge Scalia went on to address government speech that is critical of the

ideas put forth by other speakers.

We know of no case in which the first amendment has been held to be
implicated by governmental action consisting of no more than
governmental criticism of the speech's content. Nor does any case
suggest that "uninhibited, robust, and wide-open debate" consists of

debate from which the government is excluded, or an "uninhibited

marketplace of ideas" one in which the government's wares cannot be

advertised. . . .

... A rule excluding official praise or criticism of ideas would lead
to the strange conclusion that it is permissible for the government to

prohibit racial discrimination, but not to criticize racial bias; to

criminalize polygamy, but not to praise the monogamous family; to make
war on Hitler's Germany, but not to denounce Nazism. It is difficult to

imagine how many governmental pronouncements, dating from the
beginning of the Republic, would have been unconstitutional on that

view of things.
200

Indeed, the court seems correct. Many actions of government implicate and
criticize the ideas of others. A presidential statement or the State of the Union
Address may well criticize the ideas advocated by the other party. This official
statement, as disparaging as it may be of others' political views, would not
reasonably be seen as a violation of the First Amendment rights of those holding
and expressing those other views. The same should be true of a congressional
resolution approving of one position and disapproving of another. If critical

speech by the government were a First Amendment violation, only those out of

196. 793 F.2d 1303 (D.C. Cir. 1986).

197. Justice Scalia had gone on to the Supreme Court by the time Meese v. Keene reached that

Court and took no part in the decision in that case. The panel for Block v. Meese included not only

Judge Scalia, but also Judges Bork and Wright. Id. at 1306.

198. Id. at 1312.

199. Id. (citing Regan v. Taxation with Representation, 461 U.S. 540, 546 (1983)).

200. Id. at 1313.



84 INDIANA LAW REVIEW [Vol. 41:55

power could engage in political debate. Their speech, alone, would be

nongovernmental and not restricted by this view of the First Amendment.
Applying the reasoning of the D.C. Circuit opinion to the video game context,

it may be argued that limiting government disparagement would not have the
same effect on the political debate, and, thus, any disapproval expressed by a

web-based list should be seen as a violation of the First Amendment rights of
game designers and producers. If anything, the distinction should cut in the
opposite direction. The speech examples in Judge Scalia's opinion were political
speech,

201
and that sort of speech is the most protected form of speech. If

members of the government can criticize Nazism, it would seem that they could
also criticize games such as Ethnic Cleansing, in which players take on Nazi roles

and carry out virtual missions that would have had Nazi approval.
202

Government warnings about violent video games are similar to statements on

public health, and even if the public health concerns have not yet been

sufficiently proven as to justify bans on video games, the statements may be made
in an effort to inform the public. Any web site list would still not constitute a
ban, and government warnings or even disapproval fall short, in the view of the

D.C. Circuit, of implicating the First Amendment rights of the video game
industry or of those who would play the games.

There is also a somewhat more recent case from the D.C. Circuit that is

relevant here. In Penthouse International, Ltd. v. Meese
203

the court addressed

an action by the Attorney General's Commission on Pornography. The
procedural aspects of the case are rather convoluted. The Commission held
hearings on pornography and its availability to the public.

204
Based on those

hearings, it sent a letter to a number of corporations indicating that the

Commission had received evidence that the corporation was involved in the

distribution of pornography and saying that the Commission thought it

appropriate to allow the corporation to respond before the Commission issued its

report on the distributors of pornography.
205

For example, the response of

Southland Corporation, the parent of the 7-Eleven chain, was to tell the

Commission that they had decided to stop selling adult magazines and hoped that

their name would be left out of any final report. 206

In an earlier case, Playboy Enterprises, Inc. v. Meese
201

Playboy and

Penthouse sought an injunction against the publication of any "blacklist" of

corporations distributing their magazines.
208 The court there decided that the

201. See id.

202. For a description of the game, see Racist Groups Using Computer Gaming to Promote

Violence Against Blacks, Latinos and Jews, ANTI-DEFAMATION LEAGUE, Feb. 19, 2002,

http://www.adl.org/videogames/default.asp.

203. 939 F.2d 1011 (D.C. Cir. 1991).

204. Id. at 1012-13.

205. Id. at 1013.

206. Id.

207. 639 F. Supp. 581 (D.C. Cir. 1986).

208. Id. at 582-84.



2008] SHIELDING CHILDREN 85

magazines were likely to prevail on the merits of a First Amendment claim since
the letters were an informal system of government censorship and a system of

prior restraints, and issued a preliminary injunction.
209

The court ordered the
Commission to withdraw the letters, to so inform the corporations to which they

had been addressed, and to refrain from naming any corporations in the final

report.
210

In a case in which the magazines might better have left well enough

alone, they instead persisted in pursuing a permanent injunction, declaratory

relief, and a damages action.
211

The defendants sought summaryjudgment on the
grounds that the equitable claims were now moot and that the damages were
barred by qualified immunity.

212
The district court granted the summary

judgment motion,
213

and Penthouse appealed.
214

When the D.C. Circuit considered the claim, the court seemed less hospitable
to the First Amendment claims.215 Penthouse argued that the Commission had
attempted to prevent or chill the distribution of constitutionally protected

magazines and that the case fit within the parameters of Bantam Books.216 The
court, however, found the cases to be distinguishable. In the instant case, the

court found an advisory commission lacking the tie to prosecutorial power

present in the Bantam Books case and no authority to censor.
217

The present case
also lacked threats of prosecution or other indications that the Commission was
trying to ban distribution.

218
Penthouse suggested that the corporations receiving

the letters would think they were being threatened, but the court was not

swayed.
219 The court thought the Commission may have come close to

suggesting that it had more power than it, in fact, did possess, but noted that the
Commission had never threatened to use the state's coercive powers against the
corporations receiving the letters.

220

Speaking more generally, and in terms that are particularly important to the
issue under consideration here, the court went on to say:

We do not see why government officials may not vigorously criticize a
publication for any reason they wish. As part of the duties of their office,
these officials surely must be expected to be free to speak out to criticize

practices, even in a condemnatory fashion, that they might not have the

209. Mat 587-88.
210. Id. at 588.

211. Penthouse, 939 F.2d at 1012.

212. Id.

213. Playboy Enters., Inc. v. Meese, 746 F. Supp. 154 (D.C. Cir. 1990).

214. Penthouse, 939 F.2d at 1011.

215. The D.C. Circuit opinion is categorized as an affirmance, but it is an affirmance of the

grant of summary judgment refusing additional equitable relief and damages. Id. at 1020.

216. Id. at 1014-15.

217. Id. at 1015.

218. Id.

219. Id.

220. Id.



86 INDIANA LAW REVIEW [Vol. 41 :55

statutory or even constitutional authority to regulate. If the First

Amendment were thought to be violated any time a private citizen's
speech or writings were criticized by a government official, those

officials might be virtually immobilized.
221

Even accepting the claims of Penthouse that the letter was a threat to blacklist the
corporations distributing the magazines. The court saw the charge "with the
rhetoric drawn out" as no more than a threat publicly to embarrass the
corporations and that this was a perfectly legal option.

222

[C]orporations and other institutions are criticized by government

officials for all sorts of conduct that might well be perfectly legal,

including speech protected by the First Amendment. At least when the
government threatens no sanction—criminal or otherwise—we very
much doubt that the government's criticism or effort to embarrass . . .
threatens anyone's First Amendment rights.223

The opinion was not unanimous in its First Amendment analysis. Judge
Randolph concurred in affirming the denial of additional equitable relief and

damages, but did not join fully in the First Amendment portions of the opinion.224

Judge Randolph read the majority opinion as suggesting that the government may
even make false, derogatory statements to interfere with the distribution of
protected material.

225
Instead, he would draw a line between cases where the

statements were true or even the result of inadvertent misstatement and

intentional falsity calculated to bring about an injury to expression rights.
226

In still another case from the D.C. Circuit, the court refused to find a

constitutional violation in a situation in which an order by the Federal

Communications Commission ("FCC") might have seemed to include an implied
threat of license revocation directed at radio stations. Yale Broadcasting Co. v.

FCC221 considered an order by the FCC regarding "drug oriented" music.228 The
FCC order "remind[ed] broadcasters of a pre-existing duty, required licensees to
have knowledge of the content of their programming and on the basis of this

knowledge to evaluate the desirability of broadcasting music dealing with drug

221. Id. at 1015-16 (citation omitted).

222. Id. at 1016.

223. Id. The court did point to one case in which it had found a violation in attempts to disrupt

political activities by publishing false allegations about the targeted group. Id. (citing Hobson v.

Wilson, 737 F.2d 1, 28 (D.C. Cir. 1984)). The court distinguished that case by noting the secret

"agents provocateurs" role of the FBI agents in that case compared to what was seen as open

criticism present in the instant case. Id.

224. Id. at 1020 (Randolph, J., concurring).

225. Id.

226. Id. ; but see supra note 223.

227. 478 F.2d 594 (D.C. Cir. 1973).

228. Id. at 595.



2008] SHIELDING CHILDREN 87

use."
229 The order had stated that the FCC was not banning the play of "drug

oriented" records and that there would be no reprisals against stations playing

such music, but that it was still necessary for broadcasters to know the contents
of what they broadcast and to make their own judgment as to the wisdom of
broadcasting such music.

230

A radio station argued that the order was a violation of its free speech rights,
but the court found no such problem.

231
The task of knowing the contents of the

music on the playlist was not seen as burdensome, given the FCC's suggestions
as to how such knowledge could be obtained, including from listener
complaints.

232
The better argument by the station owner would seem to be the

implicit threat behind the order. The court noted that licensees are required to
operate in the public interest and that the knowledge required in the order was

necessary for the station to know if it was meeting that requirement.233 The
implication would seem to be that by playing "drug oriented" music, presumably

constitutionally protected matter, the stations would be violating their public

interest mandate. The court, however, said, "[f]ar from constituting any threat to
freedom of speech of the licensee, we conclude that for the Commission to have
been less insistent on licensees discharging their obligations would have verged

229. Id.

230. Id. at 596. An implied threat would, of course, have made a difference. Another FCC
case, this time involving television violence, provides an example. See Writers Guild of Am., W.,

Inc. v. FCC, 423 F. Supp. 1064 (CD. Cal. 1976), vacated, 609 F.2d 355 (9th Cir. 1979). In the

mid- 1 970s, pressure was asserted against broadcasters to reduce violence, play it during hours when

children were less likely to be in the audience, and include warnings. Id. at 1099-1128. The

provisions were implemented by the National Association of Broadcasters (the "Association"),

against a background of a concerted effort by the FCC and members of Congress, complete with
threats that should "voluntary efforts" fail, there would be legislation. Id. The provisions were

challenged by those involved in the creative aspects of the television industry. Id. In the federal

district court, the policy was invalidated on the ground that the Association's rules were the result

of these threats and a violation of the First Amendment rights of writers, actors, directors, and

producers. Id. at 1 161. The district court opinion was vacated by the U.S. Court of Appeals for

the Ninth Circuit on the grounds that the FCC had primary jurisdiction to hear the complaints. See
Writers Guild of Am., W., Inc. v. Am. Broad. Co., 609 F.2d 355 (9th Cir. 1979). For an argument

that the vacating of the opinion has led the FCC not to learn the lessons of the district court's
analysis, see Robert Corn-Revere, Television Violence and the Limits of Voluntarism, 12 YALE J.

ON Reg. 187 (1995) (discussing efforts in the mid-1990s also to limit television violence).

The case does not speak to the video game proposal offered here. The FCC clearly has
regulatory authority over the broadcast industry. That authority causes "suggestions" to be taken

very seriously. Wlien the prospect of legislation is added, the compulsion may reach the level of

being a violation of the First Amendment. At least at this point, there is no similar regulatory

authority over the video game industry.

23 1

.

Yale Broad. Co. , 478 F.2d at 597-99.

232. Id. at 600-01.

233. Id. at 598.



88 INDIANA LAW REVIEW [Vol. 41:55

on an evasion of the Commission's own responsibilities."234 The court pointed
out that the plaintiff had recently had its license renewed, and there had been no

showing of any broadcaster having failed to have a license renewed based on the

order.
235 The court further noted that if there should be an unfair license denial,

then legal redress would be available.
236

This seems to be the sort of situation actually addressed by Bantam Books.
There may be a sufficient threat that compliance is obtained and protected
material is limited, without any action by a court. Only if a broadcaster is willing

to risk its license to challenge the order will there be a legal determination of the

constitutionality of this system of informal restraints. Yale Broadcasting moved
for rehearing en banc, and although the motion was denied, Judge Bazelon did
issue a statement as to why a rehearing should have been granted in recognition
of the threat to the First Amendment rights of the broadcasters.

Talk of "responsibility" of a broadcaster in this connection is simply

a euphemism for self-censorship. It is an attempt to shift the onus of
action against speech from the Commission to the broadcaster, but it

seeks the same result—suppression of certain views and arguments.
Since the imposition of the duty of such "responsibility" involves

Commission compulsion to perform the function of selection and

exclusion and Commission supervision of the manner in which that

function is performed, the Commission still retains the ultimate power to

determine what is and what is not permitted on the air.
237

Judge Bazelon seems correct in his observations, but even here the court allowed

this system of informal restraints. This may be a weakening of the case law
protecting speech from such informal restraints, but even if the court would have

agreed with Judge Bazelon, the case is still distinguishable from the program

suggested here. The Bazelon view still rests on the power of the government to
revoke or to not renew a license. No such power is available to the state in a
program that lets parents know which stores and arcades make violent or sexually
explicit games available to children younger than appropriate under the industry

rating system.

Even government speech casting individuals in a very negative light has

passed First Amendment scrutiny. In American Family Ass 'n v. City and County

ofSan Francisco,
23

* the court considered a campaign against the advertising effort

of the American Family Association. The advertisements took positions against
homosexual activities, employing a Christian point of view.

239 A full page ad in
the San Francisco Chronicle asserted that God abhors all sexual sin and that

234. Id. at 599.

235. Id. at 602.

236. Id.

237. Id. at 605.

238. 277 F.3d 1 1 14 (9th Cir. 2002).

239. Mat 1118.



2008] SHIELDING CHILDREN 89

homosexuals "[make] a choice in yielding to temptation."
240

It went on to

complain about the reaction to the association's and similar organizations'

positions on homosexuality.
241

The groups had been labeled as bigots and
homophobes and said all they wanted was a reasoned debate on the issue.242

The Board of Supervisors for the City and County of San Francisco wrote to
the plaintiffs blaming the murder of Matthew Shepard, in part, on the messages
promulgated by groups like the American Family Association.

243 The letter went
on to say, "[i]t is not an exaggeration to say that there is a direct correlation

between these acts of discrimination, such as when gays and lesbians are called
sinful and when major religious organizations say they can change if they tried,
and the horrible crimes committed against gays and lesbians."

244

The Board also passed two resolutions. One condemned another murder of
a homosexual and "call[ed] for the Religious Right to take accountability for the

impact of their long-standing rhetoric denouncing gays and lesbians, which leads

to a climate of mistrust and discrimination that can open the door to horrible

crimes [against gays and lesbians]."
245

The second resolution addressed anti-gay
television ads.

246 The resolution included the name of one of the plaintiffs, noted
that "a prominent San Francisco newspaper" had accepted and published ads

opposing toleration for gays and lesbians, and suggested that the "ads suggesting

gays or lesbians are 'immoral and undesirable create an atmosphere which

validates oppression of gays and lesbians' and encourages maltreatment of

them."
247

The resolution also claimed that a marked increase in violence against
gays coincides with such campaigns and called on local television stations not to

air ads aimed at converting homosexuals to heterosexuality.
248

The court's analysis was somewhat complex because the plaintiffs, instead
of filing a free speech claim, filed a complaint based on the Establishment and

Free Exercise Clauses of the First Amendment.
249

The free speech issue was,
nonetheless, important to the Free Exercise claim.

250
Such claims must either

assert that the law or practice at issue is not a general law or practice neutrally

240. Id. at 1118-19.

241. Id. at 1119.

242. Id.

243. Id.

244. Id.

245. Id.

246. Id.

247. Id. at 1120.

248. Id.

249. Id.

250. The court found no merit in the plaintiffs' Establishment Clause claim. Id. at 1 123. This

position did, however, cause Judge Noonan to dissent. Since the case came to the court as an

appeal of the grant of summaryjudgment to the defendants, Judge Noonan noted that the plaintiffs'

allegations must be accepted as true. Id. at 1126 (Noonon, J., dissenting). Accepting those

allegations, he felt that there was a triable issue as to whether the Board had expressed official

condemnation of the plaintiffs' religious beliefs. Id. at 1 126-27.



90 INDIANA LAW REVIEW [Vol. 41:55

applied, but is instead aimed at religion, or that there is both a restriction on

religious exercise and the implication of an additional constitutional right.
251 The

additional constitutional right offered was the free speech right of the plaintiffs.
252

In response, the court said that the only cases in which government criticism of

speech was unconstitutional were cases in which there was government conduct

beyond the criticism.
253 The court refused to extend these cases and said: "We

agree with the host of other circuits that recognize that public officials may
criticize practices that they would have no constitutional ability to regulate, so

long as there is no actual or threatened imposition of governmental power or

sanction."
254

Finally, in denying the violation of free speech, the court said:

[Although the Defendants may have criticized Plaintiffs' speech (or at
least the perceived effect of it) and urged television stations not to air it,

there was no sanction or threat of sanction if the Plaintiffs continued to

urge conversion of homosexuals or if the television stations failed to

adhere to the Defendants' request and aired the advertisements.
255

It appears, then, that government speech, when it is critical of the speech of
others, may be very critical.256 There seems to be no need to pull punches, and
it would seem that the asserted correlations on which the Board's claims rested

are no better established than those surrounding violent video games. That seems

to imply that a web site could assert the claim that the games are detrimental to

251. Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 878-81 (1990).

252. Am. Family Ass'n, 277 F.3d at 1 124.

253. Id.

254. Id. at 1125.

255. Id. Judge Noonan also dissented on this issue. As he read the complaint, Plaintiffs

alleged that the television stations refused to air plaintiffs' ads in part because of the Board's

resolution. Id. at 1127 (Noonan, J., dissenting). From this, Judge Noonan said it was a fair

inference that the television stations felt some compulsion. Id. It is not clear that this follows from

the allegation. The stations, even if they refused to air the ads in response to the resolution, may

have done so because they came to see the problems caused by the ads or did so out of public

concern. However, in the view of all three judges, the refusal by the television stations had to be

the result of a perceived threat to raise a constitutional issue.

256. In another case involving very critical speech, Suarez Corp. Industries v. McGraw, 202

F.3d 676 (4th Cir. 2000), the members of the Attorney General's Office in the State of West

Virginia accused the plaintiff of "cheating West Virginia residents out of their money." Id. at 68 1

.

The plaintiff was every bit as active in the press, taking out ads accusing the Attorney General of

playing politics and wasting the State's money and time. Id. The Attorney General, in discussions

with the Better Business Bureau ("BBB"), also indicated an unwillingness to assist the BBB in
expansion, if Suarez remained a member. Id. at 682. The court said, "where a public official's

alleged retaliation is in the nature of speech, in the absence of a threat, coercion, or intimidation

intimating that punishment, sanction, or adverse regulatory action will imminently follow, such

speech does not adversely affect a citizen's First Amendment rights, even if defamatory." Id. at

687. Finding no such threat or coercion, the court held that there was no violation of Suarez'

s

rights. Id. at 689.



2008] SHIELDING CHILDREN 91

the well-being of youth. The holdings of various courts that the evidence is not
yet strong enough to support the state's position under a strict scrutiny test does

not mean that such a statement on a web site would itself be a constitutional
violation. It could, of course, constitute libel, if the industry could bear the

burden of proving its falsity.

The next case considered in this portion of the analysis, as a part of looking
at the Second Circuit's decisions in this area, may well be the most relevant to the
suggestions in this Article. That relevance comes from the fact that the case,
Hammerhead Enterprises, Inc. v. Brezenoff

257
also concerns a game.

Hammerhead Enterprises produced the game Public Assistance—Why Bother
Workingfor a Living?

258
It was a game in the style of Monopoly in which players

moved around a board twelve times, once for each month of the year.259 There
were two routes to be taken in trying to accumulate the most money.

260 On the
inside route, the "Able Bodied Welfare Recipient's Promenade," money was
more easily accumulated, especially if the player landed on the "have an

illegitimate child" square.
261 On the outside track, the "working person's rut,"

players faced obstacles in the nature of oppressive taxes, excessive regulation,

and reverse discrimination.
262

The game's developers sought publicity for their offering, appearing on The
Today Show and The Phil Donahue Show.263 The attempt at publicity also
brought negative reaction, with the National Association of Women condemning
the game and the Maryland NAACP's call for a boycott of stores carrying the
game.

264
The criticism that led to the court action was from New York City's

Administrator of the Human Resources Administration.265 The Administrator,
believing the game to be a distortion of the nature of the welfare system, saw it
as his duty to express his disagreement with the view presented.

266 He did so by
writing to thirteen department stores in the city, urging them not to carry the

game.
267

The letter said that the game '"does a grave injustice to taxpayers and
welfare clients alike'" and closed with: "'Your cooperation in keeping this game
off the shelves of your stores would be a genuine public service.'"

268

Two stores responded, both indicating that they had already decided not to
stock the game.

269
The Administrator took no further action following up on the

257. 707 F.2d 33 (2d Cir. 1983)

258. Id. at 34.

259. Id. at 34-35.

260. Id. at 35.

261. Id.

262. Id.

263. Id. at 36.

264. Id.

265. Id. at 36-37.

266. Id. at 36.

267. Id.

268. Id. at 37.

269. Id.



92 INDIANA LAW REVIEW [Vol. 41 :55

other letters, did not investigate stores that were carrying the game,
270

and as the

court noted, his department had no regulatory power over the merchants, and the

Administrator did not contact any department that did have such power.
271

The
court also noted that "no credible evidence suggests that any store decided not to

carry the game as a result of Brezenoff s letter."272

Turning to the consideration of the First Amendment claim, the court found
no violation,

273
only the Administrator's "well-reasoned and sincere entreaty in

support of his own political perspective" that the game should not be carried by
the stores.

274
The court explained:

The record before us, however, shows this claim to be little more than a
figment of appellants' collective imagination. . . . Where comments of a
government official can reasonably be interpreted as intimating that some
form of punishment or adverse regulatory action will follow the failure

to accede to the official's request, a valid claim can be stated. Similarly,

claimants who can demonstrate that the distribution of items containing
protected speech has been deterred by official pronouncements might

raise cognizable First Amendment issues. We have already noted,
however, appellants cannot establish that this case involves either of

these troubling situations.
275

The court distinguished Bantam Books by once again noting the lack of power to
impose sanctions and the lack of influence over the decision of any store.

276

The question left by this opinion is what the result would have been if any
department stores had decided not to carry the game because of the
Administrator's letter. If the stores had taken such action, given the content of

the letter and the lack of regulatory authority in the department, there still would

not have been an intimation of punishment or regulatory action, the first factor

mentioned in the last quoted language. There would, however, have been an

270. An investigation may constitute a violation of the First Amendment. In White v. Lee, 227

F.3d 1214 (9th Cir. 2000), the San Francisco office of the U.S. Department of Housing and Urban

Development ("HUD") conducted an investigation of three neighbors to a potential multi-family

housing unit. The neighbors were concerned over the potential residents and conducted a political

campaign against the project, and the HUD office investigated the campaign as an instance of
housing discrimination. Id. at 1220-26. The Washington office ofHUD eventually recognized that
the neighbors had done nothing more than exercise their First Amendment rights, id. , and the Ninth

Circuit allowed the neighbors' suit for violation of their rights to proceed. Id. at 1240-41.

27 1

.

Hammerhead Enter., Inc., 707 F.2d at 37.

272. Id.

273. Id. at 38.

274. Id.

275. Id. at 39 (citation omitted).

276. Id. The plaintiffs had also suggested that the Administrator's efforts were

unconstitutional because of their secret nature. Id. The court's response was to note that "[t]he

First Amendment does not require [that] public officials to communicate only through the media."

Id.



2008] SHIELDING CHILDREN 93

effect on distribution that might be said to be the result of official deterrence, the

second factor. Which factor would control?
The result might be divined from the difference between the use of "a valid

claim can be stated," with regard to the first factor, and "might raise a cognizable

First Amendment issue[]," with regard to the second factor. 277 That is, a
government speaker threatening punishment or regulatory action is sufficient to

constitute a violation of the First Amendment. On the other hand, if the basis for
the claim is the effect of the government's speech, that may be sufficient to raise
such a claim. At least the plaintiff should have the opportunity to show that the
negative distribution decision was motivated by some sense of threat arising from
the government speech. Such an opportunity for the plaintiff would put the

Second Circuit in line with the Ninth Circuit's American Family Ass'n decision

and mean that it is not the effectiveness, in itself, of the government speech that
makes a difference. If it is effective because it provides a convincing argument

or raises social values with which the hearers agree, similar to the effect that

speech by a private citizen might have, that is not a violation. If it is effective

because it is from the government and implies the imposition of some form of
official sanction, that is a violation of the First Amendment.

This view may be reinforced by a later Second Circuit case, Rattner v.
Netburn.

218
In that case, Rattner, a local businessman, had been very critical of

the Village of Pleasantville, New York.279 He regularly litigated zoning disputes
against the Village and claimed that the Village selectively enforced laws against

him and otherwise harassed him.280 Rattner was a member of the local Chamber
of Commerce and used the Chamber's newspaper to express his views.281 He
placed an ad, formatted as an interview with him, in the paper criticizing the

expenses incurred by the village in the litigation he filed.
282

In the same issue, on
the front page, the Chamber published an article containing the results of a
questionnaire indicating public dissatisfaction over the expenditures.

283

In response, Netburn, a village trustee, and others involved in village

government offered their own criticism of Rattner. 284 Netburn wrote the directors
of the Chamber, other than Rattner, saying that the Chamber appeared to have
"crossed the line between being a supportive, nonpartisan, and nonpolitical local

organization to one that has a political agenda and purpose."
285 He also asked the

directors whether the entire membership had supported the decision to run the

article, for a list of those supporting the decision, whether the Chamber had a
political purpose and, if so, what it was, and whether members were using their

277. Id.

278. 930 F.2d 204 (2d Cir. 1991).

279. Id. at 205-06.

280. Id. at 205.

281. Id. at 205-06.

282. Id. at 205.

283. Id.

284. Id.

285. Id. at 206.



94 INDIANA LAW REVIEW [Vol. 41:55

Chamber offices to support political activity.286 The letter finished with: "I
believe—and many of my neighbors believe—that the recent [issue of the paper]
raises significant questions and concerns about the objectivity and trust which we
are looking for from our business friends. I would appreciate a reply at your
earliest convenience."

287
In response, the Chamber stopped publishing its paper,

after one last scheduled issue, and it prevented Rattner from publishing anything

in that last issue.
288

Rattner filed suit claiming a violation of his First Amendment
rights in forcing the paper to cease publishing.

289 The district court granted
summary judgment for the defendants, holding that Rattner had not shown any
violation of his constitutional rights.

290

Since the appeal was from a grant of summary judgment, the appellate court
had to take all the plaintiffs allegations as true.

291 Among those allegations was
one, supported by depositions of the directors of the Chamber, stating that they

took Netburn's letter and other statements as threats of boycotts or of retaliatory

action by the village.
292 The court held that summary judgment was improper.293

"[T]he record, taken in the light most favorable to Rattner, reveals statements by

Netburn that a reasonable factfinder could, in the words of Hammerhead,
'interpet[] as intimating that some form of punishment or adverse regulatory
action w[ould] follow' if the [paper] continued to air Rattner' s views."

294

Although the district court relied on Hammerhead, the Second Circuit
distinguished the cases.

[T]he district court in Hammerhead found that the Brezenoff letter had
no coercive impact, and we noted that "not a single store was influenced
by Brezenoff s correspondence." Here, in contrast, a threat was
perceived and its impact was demonstrable. Several Chamber directors
testified at their depositions that they viewed the letter as reminiscent of

286. Id.

287. Id.

288. Mat 206-07.
289. Id. at 207. Compare Rossignol v. Voorhaar, 316 F.3d 516 (4th Cir. 2003) (raising the

issue of buying out as much of the run of a particular issue as possible rather than shutting down

the operation of a paper). Sheriffs deputies went from store to store and newspaper box to

newspaper box buying all the available copies of the election day edition of the local newspaper.

Id. at 520. The paper contained articles critical of the sheriff and a candidate the sheriff supported

for state's attorney. Id. The court found a violation of the First Amendment because some of the

store clerks recognized the off-duty and out-of-uniform purchasers as deputies. Id. at 526. At least

one clerk claimed to have been intimidated. Id. The operation was held to be a constitutional

violation because the newspaper's expression was suppressed in reaction to its criticism of

government actors, and those actors used their government status in the purchases. Id. at 526-27.

290. Netburn, 930 F.2d at 207.

291. Id. at 209.

292. Id. at 209-10.

293. Id. at 210.

294. Id. at 209.



2008] SHIELDING CHILDREN 95

McCarthyism, threatening them with boycott or discriminatory

enforcement of Village regulations .... [T]he Chamber member who
had been "in charge of the [paper] testified ... he had actually lost
business and had been harassed by the Village.

295

The court found summary judgment improper because the above statements
raised genuine issues of fact.

296

The question again arises whether effect is sufficient or whether there must
be a threat of negative official action of some sort. The court points to both as
alleged; that is, there was a claim of perceived threat, and there was an effect.

297

Is the threat necessary, or will the effect suffice? Here, the case was remanded

for further proceedings because "there are genuine issues of fact to be tried."
298

If effect was sufficient, there would be no real issue of fact to be tried. It was

undisputed that, after Netburn's letter, the paper ceased publication and avoided

any material from Rattner in its last issue scheduled. What remained unclear was
the nature of Netburn's comments: Could they be taken as a threat of some
retaliatory official action? That governmental coercion remains the hallmark of

any violation of the First Amendment to be found in government speech seems
clear.

That is not the end of the Second Circuit's analysis of this field. Eight years

later the issue arose again in X-Men Security, Inc. v. Pataki.299 X-Men Security
had been providing security at Ocean Towers, a privately owned housing
complex that received financial support from the federal and state government.

300

Ocean Towers had been quite dangerous, but when X-Men received the contract
for security, safety improved rapidly.

301 A majority of the employees of X-Men
were adherents of the Nation of Islam, the religious organization with which

Louis Farrakan is affiliated.
302 A state legislator and U.S. Congressman criticized

the award of the contract to X-Men because of their perceptions of the teachings
of the Nation of Islam.

303 When the contract period expired Ocean Towers did
not renew the contract with X-Men. X-Men brought a legal action claiming that
the failure to renew was the result of racially and religiously biased statements by
the legislators.

304

The court refused to find the legislators liable. 305 The court noted that the
legislators did not make the decision, did not have authority to supervise the

295. Id. at 210 (citations omitted)

296. Id.

297. Id.

298. Id.

299. 196F.3d56(2dCir. 1999).

300. Id. at 60.

301. Mat 61.
302. Id. at 60.

303. Id. at 61-62.

304. Id. at 62.

305. Id. at 72.



96 INDIANA LAW REVIEW [Vol. 41 :55

contracting process, and had no control over awarding or renewing the contract.
306

Although the legislators made accusations, asked for government investigations,
questioned X-Men's eligibility, and advocated that the company not be retained,
the court said:

We are aware of no constitutional right on the part of plaintiffs to
require legislators to refrain from such speech or advocacy.

The First Amendment guarantees all persons freedom to express
their views. . . .

One does not lose one's right to speak upon becoming a
legislator. . . .

. . . The manifest function of the First Amendment in a
representative government requires that legislators be given the widest

latitude to express their views on issues of policy.
307

The court could find no cases providing a right on the part of an individual to
prevent a legislator from expressing his or her views.

308
While the expression of

views together with threats or coercion could be a violation of the First

Amendment, critical speech, even by a government speaker, is protected. Here,
the critical speech was coupled with an effect, so coercion, the necessary factor

in finding a violation of the First Amendment, was missing.
309

306. Id. at 68.

307. Id. at 69-70.

308. Id. at 70.

309. Id. at 7 1 . In a more recent case, the Second Circuit made it clear that "a public-official

defendant who threatens to employ coercive state power to stifle protected speech violates a

plaintiffs First Amendment rights even if the public-official defendant lacks direct regulatory or

decisionmaking authority over the plaintiff or a third party that facilitates the plaintiffs speech."

Okwedy v. Molinari, 333 F.3d 339, 340-41 (2d Cir. 2003). The court held it error to have

dismissed the plaintiffs' free speech claim where a jury could find that the official's statements to

a third party could be construed as threats to use official power to retaliate against the owner of

billboards on which plaintiffs' messages were posted unless the owner removed the signs. Id. at

344. The court distinguished X-Men by noting that in X-Men there was no allegation of pressure

other than disapproving speech with no allegations of threats to actual decisionmakers of any

coercive or intimidating conduct. Id. at 343-44.

In an older billboard case, the Third Circuit refused to find a violation of speech rights in a

similar request to remove billboards. R.C. Maxwell Co. v. Borough of New Hope, 735 F.2d 85,
86 (3d Cir. 1984). R.C. Maxwell Co. involved a historic town that had tried for several years to

pass an ordinance barring billboards. Id. The Borough then made an informal request to the

billboard owner that the billboards be removed. Id. The letter mentioned the proposed ordinance

and the possibility of legal proceedings if the billboards remained. Id. The owner removed the

billboards, and the entity that had been advertising on the billboards sued the Borough for violation

of its First Amendment rights. Id. at 87. It was noted that the owner had plans to develop land in

the Borough, and that while denying any quid pro quo, the owner did want to stay in the Borough's

good graces. Id. The court, noting the owner's statements that it did not feel coerced or

intimidated, found no violation. Id. at 87.



2008] SHIELDING CHILDREN 97

A web site listing stores selling games to children younger than the ratings
for the game and malls with arcades allowing similar play would not contain the
sort of threat or coercion required by the courts before a violation of the game
makers', store owners', malls', or arcade operators' First Amendment rights may
be found. The web site would be informative. If stores or malls decided that they
did not like the information being disseminated and chose to change their sales

policies or rental agreements, that would not violate game makers' expression
rights. If the owners or operators did so, because they would have done so all

along, but only now are aware of the problem, there is certainly no issue. If they
change policies and practices because of concern over public reaction, that too is

not a violation. The only potential violation from government speech, such as an
informative web site, is if the speech contains threats or is otherwise coercive.
There is no such threat or coercion to be found in the simple posting of

information.

C. Due Process Issues

Assuming that the courts find no infringement of First Amendment rights in
posting the results of violent video game stings on a web site, the second line of
attack on the proposal is likely to be a claim that it violates due process. The
program proposes simply to attempt purchases by underage buyers or attempt to

play such games in arcades and then post the results. The suggested program
does not include hearings or even notice to the merchant with a chance to

respond. The increased costs and delays in providing such procedure might make
the system too expensive to implement and the web notice could be significantly
delayed.

The basis for the due process claim would be that the merchants' reputations
are affected by the stigma of being listed on the web site. Fortunately, for the
proposed program, such stigmatization is usually not sufficient to invoke the Due
Process Clause of the Fourteenth Amendment. That result was made clear by the
Supreme Court in Paul v. Davis.

310
Prior to that decision, however, it might have

seemed that stigmatization was sufficient to invoke the Constitution's procedural

guarantees.

In the earlier case, Wisconsin v. Constantineau
311

the Court found

unconstitutional a Wisconsin law that authorized, without notice and the

opportunity to be heard, the posting of the names of persons determined to be

The two cases might be distinguished by the fact that in the first the cause of concern was the

message against homosexuals, while in the second the concern was over the billboards generally.

In the second case, however, there was also a concern expressed that the ads on the billboard had

nothing to do with the historic town and advertised businesses outside the community. Id. at 86.

It was the lack of coercion in the second case that made the difference. Id. at 87. The court refused

to find private actions that conform to civic sentiment to be coercive for purposes of finding a First

Amendment violation. Id. at 89.

310. 424 U.S. 693, 712(1976).

311. 400 U.S. 433 (1971).



98 INDIANA LAW REVIEW [Vol. 41 :55

hazardous to themselves, their families, or the community due to excessive
drinking.

312
Those whose names were posted could not buy liquor or receive it

as a gift, with criminal penalties possible against the seller or donor.
313

There was
language in that opinion indicating that the injury to reputation caused by posting

the name required the safeguards of due process. For example, the Court stated
that "[w]here a person's good name, reputation, honor, or integrity is at stake

because of what the government is doing to him, notice and an opportunity to be

heard are essential."
314

Paul v. Davis, at first blush, seems similar to Constantineau. In Paul v.

Davis, law enforcement authorities in Kentucky sent to some 800 local merchants
a flyer with the names and photos of active shoplifters.

315
Davis was included on

the list, with his photo, on the basis of a shoplifting arrest and a charge that was
later dismissed.

316
Davis felt that he had been stigmatized and argued that doing

so without adjudicating the charge was a violation of due process.
317 The Court

denied the claim and held that injury to reputation alone is never sufficient to

invoke the Constitution's procedural protections.
318

The Court distinguished
Constantineau by noting that the individual in that case also lost a right protected

by state law, the right of adults to purchase or be given alcohol.
319

In Paul v.

Davis, there was no accompanying loss, only the damage to reputation. That
damage was normally the subject of a defamation action under state law, and the
plaintiff was to be left to that remedy.

In Block v. Meese,
320

the District of Columbia Circuit recognized this rule

when considering the propaganda label put on the films from the National Film
Board of Canada.

321
The court said that the word "propaganda" was not

312. Id. at 436-39.

313. Id. at439n.2.

314. Id. at 437. The Court also referred to reputation in other cases. Id. (citing Wisconsin v.

Constantineau, 400 U.S. 433 (1971); Peters v. Hobby, 349 U.S. 331 (1955) (Douglas, J.,

concurring); Wieman v. Updegraff, 344 U.S. 183 (1952); Joint Anti-Fascist Refugee Comm. v.

McGrath, 341 U.S. 123 (1951); United States v. Lovett, 328 U.S. 303 (1946)). In Board ofRegents

v. Roth, 408 U.S. 564, 573-75 (1972), the Court refused to find a right to due process in the failure

to rehire a teacher on a one year contract. The Court noted that

[t]he State, in declining to rehire the respondent, did not make any charge against him

that might seriously damage his standing and associations in his community.

. . . Similarly, there is no suggestion that the State, in declining to re-employ the

respondent, imposed on him a stigma or other disability that foreclosed his freedom to

take advantage of other employment opportunities.

Id. at 573.

315. Paul, 424 U.S. at 699-95.

316. Id. at 695-96.

317. Mat 697-98.
318. Id. at 706.

319. Id. at 708-09.

320. 793 F.2d 1303 (D.C. Cir. 1986).

321. Id. at 1314.



2008] SHIELDING CHILDREN 99

necessarily stigmatizing, but instead had a neutral reading.
322 The court went on,

however, to say that even if "propaganda" were stigmatizing, "'stigmatization'

alone, 'divorced from . . . effect on the legal status of an organization or person,

such as the loss of a tax exemption or loss of government employment,' does not

constitute a deprivation of liberty for due process purposes."
323

Doe v. Department ofPublic Safety ex rel. Lee,
324

a particularly enlightening

case on this issue also involving a web based list, was a challenge to
Connecticut's sex offender list. Under Connecticut law, those convicted of
certain offenses were required to register with the state annually, provide any

changes of address, provide DNA and fingerprints, and submit to having his
photo taken at least once every five years.

325
The names and addresses of

registrants were placed on a web site searchable by zip code or town name.326

Doe had been convicted of a crime that came within the scope of the statute and
was required to register, but he claimed that he was not a dangerous sexual

offender and posed no threat.
327

Since his name's presence on the list would

indicate dangerousness, Doe argued that he had a due process right to contest in
some manner his individual dangerousness.328 The court recognized the validity
of his claim, and in doing so, the court explained the requirements of due process

in this area.
329

The court in Doe explained the requirements that result from Paul v. Davis.
A plaintiff complaining of defamation by the government must show

(1) the utterance of a statement about him or her that is sufficiently
derogatory to injure his or her reputation, that is capable of being proved

false, and that he or she claims is false, and (2) some tangible and
material state-imposed burden or alteration of his or her status or of a

right in addition to the stigmatizing statement.
330

The test was characterized as a "stigma plus" test; that is, not only must there be
stigma, there must also be some other loss.

331

Oddly, the court devoted some time to whether or not the plaintiff had been
stigmatized, a seemingly easy question.

332
This is best explained by the existence

of a disclaimer on the web site that the list included both dangerous and
nondangerous offenders, but the court determined that the inference likely to be

drawn from the list is that those listed are more likely to be dangerous than those

322. Id. at 1311-12.

323. Id. at 1314 (quoting Paul, 424 U.S. at 705).

324. 271 F.3d 38 (2d Cir. 2001), rev'd, 538 U.S. 1 (2003).

325. Id. at 42-44.

326. Id. at 44.

327. Id. at 45.

328. Id. at 45-46.

329. Id. at 47.

330. Id.

331. Id.

332. Id. at 47-50.



100 INDIANA LAW REVIEW [Vol. 41:55

in the general population.
333

Turning to the "plus" factor, the court first noted that the additional burden

must be independent of the alleged defamation.

Most defamation plaintiffs attempt to show some sort of special damage
and out-of-pocket loss which flows from the injury to their reputation.

But so long as such damage flows from injury caused by the defendant
to a plaintiff s reputation, it may be recoverable under state tort law but
it is not recoverable in a [constitutional] action.

334

The imposition of the plaintiffs additional burden must be "governmental in
nature" in order to distinguish the case from the ordinary defamation action.

335

In Doe, the registration requirements constituted an adequate "plus" factor

because they altered the legal status of the plaintiff and were governmental in

nature since they could not be imposed by a private actor.
336

Therefore, the

plaintiff was due a hearing before being placed on the list.
337

While the Supreme

Court reversed the holding that a hearing was required, it did not contradict the

"stigma plus" analysis. Instead, the Court noted that the statute did not require

dangerousness, so a hearing was not relevant to placement on the list. It would

be a "bootless exercise."
338

The web site list proposed here would not impose anything approaching the
degree of stigmatization present in Doe, especially if the site notes that it is not

illegal for the stores to sell the games to those below the rated age or for arcades

to allow similar play. Even more important, there is no "plus" factor. There is

no imposition of a burden that is governmental in nature. There is no burden in

the sense that no legal rights are altered. Whatever effect on legal rights may
result from the posted web list is not uniquely governmental in its genesis.
Although only a government actor could have required Doe to register with the
State of Connecticut, anyone may run the same sort of sting suggested and post
the results on a web site.

Any resulting injury to the stores or arcades listed is the sort of injury that,
if the statements were false, would be the proper subject of a state law defamation

action. The stigma, if there is any, is pure defamation. Any burden on business
from consumers who may choose not to shop at stores that sell violent video
games to those younger than the games' ratings or who choose not to frequent
malls with arcades allowing such play is exactly the same sort of burden that

would grow out of statements by private individuals. If a store, arcade, or mall

wishes to contest its inclusion on the list, the defamation suit is the proper route;

however, if the compilation is accurate, that route will be of no avail.

With regard to any defamation suit, it is important to note that the X-Men

333. Id. at 49.

334. Id. at 54 (quoting Siegert v. Gilley, 500 U.S. 226, 234 (1991)).

335. Id. at 56.

336. Mat 56-57.
337. Id. at 57-60.

338. Conn. Dep't of Pub. Safety v. Doe, 538 U.S. 1, 8 (2003).



2008] SHIELDING CHILDREN 101

court addressed the standard to be applied and held that the New York Times
actual malice standard must be met.

339 As the Court in New York Times
recognized, an uninhibited, robust, and open debate requires the breathing space,

and the New York Times standard affords even erroneous statements. 340 The court
in X-Men saw no reason not to extend this protection to statements by
government officials, saying "[t]he interest of the public in hearing all sides of a

public issue is hardly advanced by extending more protection to citizen-critics

than to legislators."
341

IV. Lessons from the Cases

A. Content of the Web Site

It is clear from the cases that a governmental entity may constitutionally
maintain the proposed web site listing stores and arcades, or the malls containing
them, that make violent video games rated beyond the age of the children
available to children. The most important aspect of the web site, other than the
information on child access, is carefully to avoid any threat, explicit or implied,

of state coercion. That is, there can be no hint of the imposition of governmental

sanction. While there is likely to be, and indeed the aim of the list is to bring

about, public pressure, that is a far cry from government sanction. The list
provides information that individuals may use to focus their concerns over
children and violent video games. It is not a list of merchants who may be
brought into court on any sort of charges to face criminal or civil sanction.

To assure that there is no perceived threat of governmental sanction, the site
should make it clear that it is legal to allow children access to the games in
question. That statement of legality may, however, be accompanied by a variety

of other statements. Among those statements should probably be a recount of the
video games industry's ESRB rating system, noting that the ratings are not legally
enforceable, and that the stores, arcades, and malls on the list are allowing

children access to games the industry itself says are inappropriate.

The web site should also contain a summary of the research on the effects of
violent video games on children, perhaps with links to further resources on the

issue. It is true that the research has thus far not been sufficient to meet the strict

scrutiny test necessary to justify legal restrictions on access by minors, but that

does not mean the research is in any sense false. Even if the research were to turn
out to be false, this is a matter of great public concern, and as long as the

governmental unit does not know the material posted is false or have reckless
disregard for its falsity, the statements are protected from any recovery for

339. X-Men Sec, Inc. v. Pataki, 196 F.3d 56, 69-70 (2d Cir. 1999) (citing New York Times

Co. v. Sullivan, 376 U.S. 254, 271-72 (1964) (requiring that public official plaintiffs in a libel suit

demonstrate actual malice on the part of the defendants, meaning that the defendants knew the

statements made were false or had a reckless disregard for truth or falsity)).

340. New York Times, 376 U.S. at 271-72.

341. X-Men Sec, Inc., 196 F.3d at 70 (quoting Bond v. Floyd, 385 U.S. 1 16, 135-36 (1966)).



1 02 INDIANA LAW REVIEW [Vol. 41:55

libel.
342 Nor is there any need for an exaggerated sense of fairness to the other

side of the debate.
343

Not only is the health and psychological community rather

united in its position on the issue; it is clear that a governmental entity may state
its own position on an issue without providing a vehicle for presentation of
alternative views as long as it employs a communication channel that is restricted

solely to government use rather than a public forum.
344

The government may state its belief based on scientific research that playing
these games is harmful to children. Such a message would be similar to public

health messages that the government conveys in a variety of contexts, such as the

effects of high fat or high sugar foods on children or lack of exercise and sleep.

Again, the government must be careful to avoid any perceived threat to parents.

Not only do parents have a constitutional right to determine the material to which

their children are exposed, at least in certain contexts,
345

any threat to parents

resulting in pressure on stores, arcades, and malls could be construed as

governmental pressure and a potential violation of the First Amendment rights of
the providers. That is, although the government may constitutionally provide
information from which parents and others may select the targets for their
concerns over children and violent video games, any state coercion behind the

public pressure can be a constitutional problem.

B. Concerns Over a "Ratings Creep
"

There are already those who are unhappy with the industry ratings and
believe that some teen rated games should be rated for mature players.

346
The use

of ratings suggested here may lead to a "ratings creep" in which games that
formerly would have been rated M would be rated T, allowing the games to be
bought or played without the retailer or arcade operator being placed on the

offender list. Alternatively, the ESRB could simply go out of business. The
ESRB could take the position that it provided ratings as a tool for parents, but if
government is going to use the ratings to bring public pressure against those who
provide the games to children, it would simply prefer not to provide the

government the standard to be used.

In this regard, it is important to note that there is nothing in the case law

examined, or in the analyses of those cases, requiring that the industry's own
rating system provide the basis for inclusion on the web site list. A third party
system or even a government rating could instead be used. A public interest

342. See supra notes 339-41 and accompanying text.

343. See, e.g., supra notes 44-51, 55 and accompanying text.

344. See Kidwell v. City of Union, 462 F.3d 620, 624 (6th Cir. 2006) (finding no First

Amendment violation in City's expenditure of funds to oppose citizen initiative), cert, denied, 127

S. Ct. 2258 (2007).

345. See, e.g., Pierce v. Soc'y of the Sisters of the Holy Names of Jesus and Mary, 268 U.S.

510, 534-35 (1925) (recognizing "liberty of parents and guardians to direct the upbringing and

education of children") (citing Meyer v. Nebraska, 262 U.S. 390 (1923))).

346. See supra notes 112-14 and accompanying text.



2008] SHIELDING CHILDREN 103

group could enlist psychologists to rate games. The government could not
require that publishers submit the games prior to their release, but there is no

prohibition against any entity, government or private, buying the game, playing

it, and providing its own rating as to suitability for various ages.
To be fair to retailers, arcades, and mall operators, it should be clear to all

what ages are seen as proper for each game under any nonindustry rating system.
The best solution may be to invite the publishers of games rated as appropriate
for a particular age to display the rating symbol of the group doing the rating.

The public could then be informed when a retailer or arcade operator made
available to children games rated by the alternative system as inappropriate for

the children's ages. The effect would place the same public pressure on game
producers to submit their games by the nonindustry evaluators for rating; but

again, rating would not be legally mandated, and public pressure would not

constitute a constitutional violation.

Presumably, the industry would prefer to maintain control of the rating

system. Although the industry or a still existent ESRB might choose to stretch
the categories, it would likely not want to do so to the point of breaking. If

industry did stretch or abandon the system, the sting and web site list approach
advocated here can continue to operate without the industry's cooperation.