INDIANAPOLIS - The Court of Appeals of the 7th Circuit granted the coin-op industry a last-minute reprieve this month, delaying enforcement of a damaging, content-based ordinance here until a final decision is handed down.
The ordinance, the first of its kind to be enacted in a U.S. city, seeks to prohibit children 17 and under from playing Red-label video games under coin-op's Parental Advisory System. Each violation would lead to $200 per day in fines; those penalized more than three times a year would face the possibility of their operating licenses being revoked.
With a number of cities and local communities considering similar proposals, coin-op officials have indicated that the eventual outcome of the situation could have major implications nationwide. A victory for the industry would set a strong precedent and deter other states from following Indianapolis's lead; a defeat would encourage other states to move forward with similar efforts.
Since passing the measure, Indianapolis Mayor Bart Peterson has reportedly received calls and inquiries from numerous states and cities across the country, all asking for information on how to draft similar ordinances in their own communities. In the last month alone, copycat measures have popped up in Chicago, San Diego and St. Louis, as well as New Jersey. Those communities, and others, will surely be watching closely as the situation in Indianapolis continues to unfold.
Developments in the case have heated up considerably in recent months.
The ordinance was signed into law on July 17 and was set to take effect on Sept. 1. However, attorneys representing the coin-op industry filed a suit against the city in August, effectively delaying enforcement pending a ruling on a preliminary injunction.
That ruling came down on October 12, when U.S. District Court Judge David Hamilton denied the industry's request in a 74-page decision, paving the way for the ordinance to be enforced until a final decision is reached.
"It would be an odd conception of the First Amendment and 'variable obscenity' that would allow a state to prevent a boy from purchasing a magazine containing pictures of topless women in provocative poses'but give that same boy a constitutional right to train to become a sniper at the local arcade without his parents permission," Hamilton said in his decision.
In reaction to the ruling, industry counsel Elliott Portnoy told V/T that he was both shocked and disappointed, given the record before Judge Hamilton.
"He has done something that no judge or court has ever done, which is expand the definition of obscenity to include violence and violent content as it relates to children," he said. "It's a decision that is unsupported by any precedent, that we believe is flawed and that we intend to challenge."
In a last-ditch effort to prevent enforcement of the ordinance, coin-op officials filed an emergency motion for an injunction pending appeal with the Court of Appeals for the 7th Circuit in Chicago. On October 18, the Court of Appeals granted the motion, preventing city officials from enforcing the ordinance until the court rules on the industry's appeal.
"More importantly, this order suggests that the Court of Appeals believes there is a substantial likelihood that it will reverse the District Court's order that we have challenged," Portnoy said, noting the court has expedited the schedule for the appeal.
The industry's brief, he explained, is due on November 2, while the city's brief is due November 16. Oral arguments are scheduled in Chicago for the week of November 27. Portnoy indicated that the expedited schedule means that the Court of Appeals will likely make a final decision by the end of the year.
It's interesting to note, Portnoy pointed out, that while Judge Hamilton's decision to deny the preliminary injunction was a defeat, it also contained language supporting some of the industry's key arguments.
"The judge agreed with us that video games are entitled to protection under the First Amendment, which is a very important holding in and of itself," he said. "It's actually the first time a federal judge has ever reached that conclusion. He also agreed with us that this is a content-based statute and that there is really no way to distinguish between video games and movies and comic books with respect to First Amendment protection."
Still, Portnoy fully anticipated that the preliminary injunction would be granted, and was shocked that it was denied. One possible explanation for the decision, he told V/T, was the fallout from the Federal Trade Commission's report, which criticized the entertainment industry, as well as the heavy concentration of media attention on the issue of violent video games in recent months.
"When you read the judge's decision, it seems clear that the tidal wave of media and political attention on this issue was at least taken into account," he said.
The Indianapolis City-County Council originally approved the ordinance on July 10 by a unanimous vote. It's aimed specifically at games depicting any of 11 activities: amputation, decapitation, dismemberment, mutilation, bloodshed, maiming, disfigurement, masturbation, deviate sexual conduct, and sexual intercourse or fondling of genitals.
As V/T reported in July, local arcade owners conceded that the ordinance would have left them with no choice but to get rid of the games entirely, as it would have required them to build elaborate partitions and hire additional staff to "card" customers.
The ordinance as it was originally drafted, however, would have been far more problematic, linking the access restrictions directly to the industry's voluntary Parental Advisory System (PAS). It restricted those under 13 from playing games that had a yellow or red disclosure message, and those under 18 from playing games with red disclosure messages.
As a result of intense lobbying efforts, Peterson and the City-County Council backed down and dramatically narrowed the scope of the legislation, eliminating all references to the PAS, focusing only on Red label games and changing the access age from over 13 to over 18 years. The end result was that a much smaller number of games were potentially affected, but the new proposed legislation became more difficult to challenge on constitutional grounds.