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Industry Files Suit To Block Indianapolis Ordinance; Outcome May Impact Video Operations Nationwide

Posted On: 8/25/2000

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INDIANAPOLIS - Believing that the constitutional rights of all of its members are at stake, the coin-op industry has decided to make a collective stand here to prevent a damaging content-restrictive ordinance from taking effect on September 1.

Together with the Indiana Amusement and Music Operators Association, the American Amusement Machine Association (AAMA) and the Amusement and Music Operators Association (AMOA) filed a lawsuit on August 21 against the prosecuting attorney of Marion County, the mayor of Indianapolis, and Indianapolis and Marion County law officials charged with enforcement of the ordinance.

Local officials have agreed to delay enforcement of the ordinance until the judge assigned to the case issues a decision on a preliminary injunction during a hearing that's likely to take place on September 15.

The eventual outcome of the situation could have major implications nationwide, as a number of other states and dozens of local communities are considering similar proposals. No fewer than 15 states, in fact have proposed some type of restrictive video content legislation in the past 19 months, but Indianapolis was the first major city to actually pass an ordinance.

In theory, a victory for the industry would set a strong precedent and deter other states from following Indianapolis's lead, as the city would be forced to pay attorney's fees. By the same token, a defeat could potentially encourage other states to move forward with similar efforts.

"All of the parties involved in the litigation believe it is necessary to protect the key constitutional rights of industry members," AAMA/AMOA industry counsel Elliott Portnoy told V/T. "They also felt it was important to fight the battle in Indianapolis in order to demonstrate both the industry's resolve and to send a signal to other communities that are considering similar legislation."

Portnoy added that the possibility still exists that the American Civil Liberties Union could join the suit, although the group was not expected to make a decision until the first week of September, at the earliest.

In a statement, industry officials said they tried to work out a compromise with newly elected Mayor Bart Peterson and the City-County Council, but were forced to take a stand in order to protect the First Amendment rights of distributors, operators and location owners.

"For months, our industry attempted to work with the mayor and the City-County Council, but rather than working with us, they passed an ordinance that is unnecessary, ineffective and unconstitutional," said AMOA president Frank Seninsky, who expressed concern over the constitutional ramifications of the ordinance and where it would lead if left unchallenged.

"What's next after banning video games depicting violence? Movies? Books? Comic books? Television news? Sporting events? We are on the edge of a slippery slope, and our industry has been forced to litigate to protect core constitutional rights."

Indianapolis, by the way, has a history with First Amendment controversy, having collaborated with feminists in 1983 to create an ordinance banning pornography due to its influence on violence against women. The ordinance was deemed unconstitutional three years later in a landmark free speech case.

The Indianapolis City-County Council originally approved the ordinance, which seeks to restrict access to violent and sexually explicit video games in arcades to those over 18 years of age, 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. 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 license being revoked.

As V/T reported last month, local arcade owners conceded that the ordinance would have left them with no other choice but to get rid of the games entirely, as it would have forced 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, as it linked 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. The end result was twofold: a much smaller number of games were potentially affected and it made the legislation more difficult to challenge on constitutional grounds.

Even the scaled-down ordinance, it appears, was too damaging for the industry to accept, especially with operators talking about getting rid of red label games entirely. The fact that other states will be watching closely also appeared to play a major role in the decision to challenge the ordinance on constitutional grounds.

"We do not believe that it is appropriate for government to pronounce what type of expression is acceptable and what kind of expression is prohibited," said AAMA president Ron Carrara. "That is the role of each individual and each family. The protective shield of the First Amendment prohibits this type of government intrusion and extends to speech and images, even where minors are at issue. As the Supreme Court has held, even if society finds certain forms of expression depicting violence objectionable, the government may not merely for convenience or public appeasement take steps to prevent their existence. And, the courts have held specifically that speech that contains expressions or depictions of violence cannot be suppressed. The proper response to unfavorable speech is more speech, not less."

Following the filing of the lawsuit, a spokesman for Mayor Peterson told the Associated Press that he is confident that the revised ordinance will stand up to judicial scrutiny, noting that officials "did our homework on this one."

Portnoy, who emphasized that he would not be waging a battle in the press, expressed similar confidence, saying "we believe the law is on our side."

While only time will tell who will prevail, it's clear that coin-op industry officials decided that the ordinance was too important to ignore. They will be watching closely, as will state legislators across the country, to see how it unfolds.