Order Code RL33232
CRS Report for Congress
Received through the CRS Web
Constitutionality of Proposals to Prohibit the Sale
or Rental to Minors of Video Games with Violent
or Sexual Content or “Strong Language”
Updated January 18, 2006
Henry Cohen
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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Constitutionality of Proposals to Prohibit the Sale or
Rental to Minors of Video Games with Violent or Sexual
Content or “Strong Language”
Summary
It has been proposed that Congress prohibit the sale or rental to minors of video
games that are rated “M” (mature) or “AO” (adults-only) by the Entertainment
Software Ratings Board. This board is a non-governmental entity established by the
Interactive Digital Software Association, and its ratings currently have no legal
effect. The Board’s website sets forth the criteria for its “M” and “AO” ratings:
Titles rated M (Mature) have content that may be suitable for persons ages 17
and older. Titles in this category may contain intense violence, blood and gore,
sexual content, and/or strong language.
Titles rated AO (Adults Only) have content that should only be played by
persons 18 years and older. Titles in this category may include prolonged scenes
of intense violence and/or graphic sexual content and nudity.
The Supreme Court has never ruled on the constitutionality of a statute that
restricted minors’ access to violent or sexually oriented video games, but every lower
federal court that has ruled on such a statute has found it unconstitutional, or issued
a preliminary injunction after finding that the law was likely to be found
unconstitutional. Based on the holdings of these courts, it appears that, for a
prohibition of the sale or rental to minors of video games with violent content to be
upheld, the government would have to present empirical evidence that these games
harm minors or cause them to become violent. The prohibition of the sale or rental
to minors of video games containing sexual content, however, would seem more
likely to be upheld without empirical evidence that such games harm minors.
Nevertheless, the apparent vagueness and broad scope of the current criteria for
“M” and “AO” ratings might cause a statutory prohibition on the sale or rental to
minors of video games that incorporates those ratings to be found unconstitutional
on its face, even if the sale or rental to minors of some of the video games to which
the “M” or “AO” rating apply could constitutionally be prohibited by more narrowly
tailored legislation.

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Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
First Amendment Principles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Violent and sexual material . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Overbreadth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Violent Video Game Decisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Sexually Explicit Video Games Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Application of the Decisions to the Proposal . . . . . . . . . . . . . . . . . . . . . . . . . 8
Violent content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Sexual content . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Application to “M”- and “AO”-rated video games . . . . . . . . . . . . . . . 11
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

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Constitutionality of Proposals to Prohibit the
Sale or Rental to Minors of Video Games
with Violent or Sexual Content or “Strong
Language”
Introduction
It has been proposed that Congress prohibit the sale or rental to minors of video
games that are rated “M” (mature) or “AO” (adults-only) by the Entertainment
Software Ratings Board. This board is a non-governmental entity established by the
Interactive Digital Software Association, and its ratings currently have no legal
effect. The Board’s website sets forth the criteria for its “M” and “AO” ratings:
Titles rated M (Mature) have content that may be suitable for persons ages 17
and older. Titles in this category may contain intense violence, blood and gore,
sexual content, and/or strong language.
Titles rated AO (Adults Only) have content that should only be played by
persons 18 years and older. Titles in this category may include prolonged scenes
of intense violence and/or graphic sexual content and nudity.1
The primary constitutional issue that a proposal to prohibit the sale or rental to
minors of video games with “M” or “AO” ratings raises is whether it would violate
the First Amendment’s guarantee of freedom of speech. If it would not violate the
First Amendment, then it would constitute a valid regulation of interstate commerce
within Congress’s power to enact under the Commerce Clause.2 Congress would
also apparently have the power to delegate the promulgation of video game standards
to a private entity, as the Supreme Court has upheld Congress’s power to delegate
regulatory power to private entities in other contexts.3
1 [http://www.esrb.org/esrbratings_guide.asp] (bold in original). We will refer to “minors”
throughout this report, as it seems unlikely that it would make a difference from a
constitutional standpoint whether a proposal applied to 17- or 18-year olds.
2 “The Congress shall have Power . . . To regulate Commerce . . . among the several States
. . . .” Art. I, § 8, cl. 3.
3 See, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND
INTERPRETATION (2004), at 88-90; [http://www.crs.gov/products/conan/Article01/
topic_S1_4_4_2.html].

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CRS-2
First Amendment Principles
The First Amendment provides that “Congress shall make no law . . . abridging
the freedom of speech,” but the Supreme Court allows various exceptions to this
prohibition. Obscenity, for example, is not protected by the First Amendment, but
most sexually oriented material has not been judged to be obscene and is protected
by the First Amendment.4 Even a statute that restricts protected speech on the basis
of its content may be constitutional, but the Supreme Court generally will uphold
such a statute only if it passes “strict scrutiny.” This means that, to be found
constitutional, the statute must be necessary “to promote a compelling interest” and
be “the least restrictive means to further the articulated interest.”5 The Supreme
Court has “recognized that there is a compelling interest in protecting the physical
and psychological well-being of minors. This interest extends to shielding minors
from the influence of literature that is not obscene by adult standards.”6
Violent and sexual material. By “literature that is not obscene by adult
standards,” the Court was referring to “[s]exual expression which is indecent but not
obscene.”7 It was not referring to material with violent content, and the courts tend
to treat restrictions on sexual material differently from restrictions on violent and
other non-sexual material. With respect to non-sexual material, the Supreme Court
requires that, “[w]hen the Government defends a regulation on speech as a means to
redress past harms or prevent anticipated harms, it must . . . demonstrate that the
recited harms are real, not merely conjectural, and that the regulation will in fact
alleviate these harms in a direct and material way.”8 This is true even with respect
to governmental restrictions on speech to which, unlike “indecent” speech, the
Supreme Court accords less than full First Amendment protection and therefore
applies less than strict scrutiny.9
With respect to sexually explicit material, by contrast, the courts generally
assume, without requiring evidence, that it is harmful to minors, or to consider it
“obscene as to minors,”10 even if it is not obscene as to adults. They therefore find
it not entitled to First Amendment protection with respect to minors, whether it is
harmful to them or not. A federal district court wrote:
4 See, CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal
Statutes, by Henry Cohen.
5 Sable Communications of California, Inc. v. Federal Communications Commission, 492
U.S. 115, 126 (1989).
6 Id.
7 Id.
8 Turner Broadcasting System v. Federal Communications Commission, 512 U.S. 622, 664
(1994) (incidental restriction on speech).
9 Id. See also, Edenfield v. Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial
speech); Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 392 (2000) (restriction
on campaign contributions).
10 Interactive Digital Software Association v. St. Louis County, Missouri, 329 F.3d 954, 959
(8th Cir. 2003); citing Ginsberg v. New York, 390 U.S. 629 (1968).

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We are troubled by the absence of evidence of harm presented both before
Congress and before us that the viewing of signal bleed of sexually explicit
programming causes harm to children and that the avoidance of this harm can be
recognized as a compelling State interest. We recognize that the Supreme
Court’s jurisprudence does not require empirical evidence. Only some minimal
amount of evidence is required when sexually explicit programming and children
are involved.11
The court therefore found that the statute, which required cable operators to
prevent “signal bleed” to customers who had not subscribed to channels primarily
dedicated to sexually oriented programming, served a compelling governmental
interest. It held the statute unconstitutional, however, because it found that it did not
constitute the least restrictive means to advance the interest. The Supreme Court
affirmed on the same ground, apparently assuming the existence of a compelling
governmental interest, but agreeing that a less restrictive means could have been
used.
In another case, a federal court of appeals, upholding the statute that bans
“indecent” radio and television broadcasts from 6 a.m. to 10 p.m., noted “that the
Supreme Court has recognized that the Government’s interest in protecting children
extends beyond shielding them from physical and psychological harm. The statute
that the Court found constitutional in Ginsberg sought to protect children from
exposure to materials that would ‘impair[ ] [their] ethical and moral
development. . . . Congress does not need the testimony of psychiatrists and social
scientists in order to take note of the coarsening of impressionable minds that can
result from a persistent exposure to sexually explicit material. . . .”12 A dissenting
judge in the case noted that, “[t]here is not one iota of evidence in the record . . . to
support the claim that exposure to indecency is harmful — indeed, the nature of the
alleged ‘harm’ is never explained.”13
Despite the above rulings, it has been noted that —
The Court seems to be becoming less absolute in viewing the protection of all
minors (regardless of age) from all indecent material (regardless of its
educational value and parental approval) to be a compelling governmental
interest. In striking down the Communications Decency Act of 1996, the Court
would “neither accept nor reject the Government’s submission that the First
Amendment does not forbid a blanket prohibition on all ‘indecent’ and ‘patently
offensive’ messages communicated to a 17-year-old — no matter how much
value the message may have and regardless of parental approval. It is at least
clear that the strength of the Government’s interest in protecting minors is not
equally strong throughout the coverage of this broad statute.” Reno v. American
11 Playboy Entertainment Group, Inc. v. United States, 30 F. Supp.2d 702, 716 (D. Del.
1998); aff’d, 529 U.S. 803 (2000).
12 Action for Children’s Television v. Federal Communications Commission, 58 F.3d 654,
662 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996) (brackets and italics
supplied by the court). Ginsberg, supra note 10, upheld a New York statute that prohibited
the sale to minors of what the Court called “‘girlie’ picture magazines.”
13 Id. at 671 (D.C. Cir. 1995) (Edwards, C.J., dissenting).

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Civil Liberties Union, 521 U.S. 844, 878 (1997). In Playboy Entertainment
Group, 529 U.S. at 825, the Court wrote: “Even upon the assumption that the
Government has an interest in substituting itself for informed and empowered
parents, its interest is not sufficiently compelling to justify this widespread
restriction on speech.” The Court also would “not discount the possibility that
a graphic image could have a negative impact on a young child” (id. at 826),
thereby suggesting again that it may take age into account when applying strict
scrutiny.14
Overbreadth. The Supreme Court has written:
The First Amendment doctrine of substantial overbreadth is an exception to the
general rule that a person to whom a statute may be constitutionally applied
cannot challenge the statute on the ground that it may be unconstitutionally
applied to others. The doctrine is predicated on the danger that an overly broad
statute, if left in place, may cause persons whose expression is constitutionally
protected to refrain from exercising their rights for fear of criminal sanctions.
Overbreadth doctrine has wide-ranging effects, for a statute found to be
substantially overbroad is subject to facial invalidation.15
What this means in the present context is that, if a retailer affected by the
proposal under consideration were to challenge it as violating the First Amendment,
then it would not matter whether the sale or rental to minors of a particular video
game by that retailer could constitutionally be proscribed. Even if the sale or rental
to minors of that particular video game could constitutionally be proscribed, the court
would strike down the law on its face if it applied to a substantial number of other
video games whose sale to minors could not constitutionally be proscribed. Put
another way, the overbreadth doctrine renders a statute “invalid in all its applications
(i.e., facially invalid) if it is invalid in any of them.”16
Violent Video Game Decisions
The Supreme Court has never ruled on the constitutionality of a statute that
restricted minors’ access to violent video games, but every lower federal court that
14 See, THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND
INTERPRETATION (2004), at 1233, n.1146 (n.1174 in the Web version at
[http://www.crs.gov/products/conan/Amendment01/topic_3_12_12.html]).
15 Massachusetts v. Oakes, 491 U.S. 576, 581 (1989). The same reasoning would seem to
apply if a speech restriction imposed only civil sanctions, as civil as well as criminal
penalties can chill speech, as the court of appeals noted in Federal Election Commission v.
Lance, 635 F.2d 1132, 1141 (5th Cir. 1981) (“It is reasonable to suppose that even if section
441b were overbroad it would not have a ‘chilling effect’ substantial enough to justify
invoking the overbreadth exception to the standing rule, since no one need risk criminal or
civil penalties to test the statute’s constitutionality.”).
16 Ada, Governor of Guam v. Guam Society of Obstetricians & Gynecologists, 506 U.S.
1011 (Scalia, J, dissenting to denial of certioriari). This is apparently an overstatement, in
that the doctrine, as noted above, is one of substantial overbreadth. The Supreme Court has
“insisted that a law’s application to protected speech be substantial . . . before applying the
‘strong medicine’ of overbreadth invalidation.” Virginia v. Hicks, 539 U.S. 113, 119-120
(2003) (citation omitted).

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has ruled on such law has found it unconstitutional, or has issued a preliminary
injunction after finding that the law was likely to be found unconstitutional.
Two federal courts of appeals have considered the constitutionality of local
ordinances (St. Louis County’s and Indianapolis’) prohibiting making violent video
games accessible to minors, and both refused to treat violent material like sexual
material or to find it “obscene as to minors.”17 Both courts, rather, held the
ordinances unconstitutional on the ground that the government had failed to present
adequate evidence that violent video games are harmful to minors.
What sort of evidence would be adequate to persuade a court that there was a
compelling interest in denying minors access to violent video games? In the St.
Louis County case, the Eighth Circuit held:
Before the County may constitutionally restrict the speech at issue here, the
County must come forward with empirical support for its belief that “violent”
video games cause psychological harm to minors. In this case, as we have
already explained, the County has failed to present the “substantial supporting
evidence” of harm required before an ordinance that threatens protected speech
can be upheld. We note, moreover . . . that the County may not simply surmise
that it is serving a compelling state interest because “society in general believes
that continued exposure to violence can be harmful to children.” Where first
amendment rights are at stake, “the Government must present more than
anecdote and supposition.”18
St. Louis County also asserted that it has a compelling interest in “assisting
parents to be the guardians of their children’s well-being.” As to this the Eighth
Circuit said that in no case “does the Supreme Court suggest that the government’s
role in helping parents to be the guardians of their children’s well-being is an
unbridled license to governments to regulate what minors read and view.”19
In the Indianapolis case, Judge Richard Posner, holding for the Seventh Circuit
that a preliminary injunction against enforcement of the Indianapolis ordinance was
warranted, wrote:
The City rightly does not rest on “what everyone knows” about the harm inflicted
by violent video games. These games with their cartoon characters and stylized
mayhem are continuous with an age-old children’s literature on violent
themes. . . . The City instead appeals to social science to establish that games
such as “The House of the Dead” and “Ultimate Mortal Kombat 3,” games
culturally isomorphic with (and often derivative from) movies aimed at the same
under 18 crowd, are dangerous to public safety. The social science evidence on
17 Interactive Digital Software Association, supra note 10; American Amusement Machine
Association v. 244 F.3d 572 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001). The St.
Louis “ordinance also restricts minors’ access to video games with strong sexual content,
but plaintiffs do not challenge those provisions of the ordinance.” Interactive Digital
Software Association, supra, 329 F.3d at 956 n.1.
18 Interactive Digital Software Association, supra note 10 at 959 (citations omitted).
19 Id. at 959-960.

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which the City relies consists primarily of the pair of psychological studies that
we mentioned earlier . . . . These studies do not support the ordinance. There is
no indication that the games used in the studies are similar to those in the record
of this case or to other games likely to be marketed in game arcades in
Indianapolis. The 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. And they do not suggest that it
is the interactive character of the games, as opposed to the violence of the images
in them, that is the cause of the aggressive feelings. The studies thus are not
evidence that violent video games are any more harmful to the consumer or to the
public safety than violent movies or other violent, but passive entertainments.20
Two federal district courts have also struck down statutes that denied minors
access to violent video games. In 2004, a district court struck down a statute enacted
by the state of Washington, finding that “there has been no showing that exposure to
video games that ‘trivialize violence against law enforcement officers’ is likely to
lead to actual violence against such officers.”21 In 2005, a district court struck down
an Illinois statute that prohibited both violent and sexually explicit video games,
finding, with respect to the prohibition of violent video games, that “defendants have
failed to present substantial evidence showing that playing violent video games
causes minors to have aggressive feelings or engage in aggressive behavior.”22
Two other federal district courts granted motions for preliminary injunctions,
pending a trial on the merits, against the enforcement of video game statutes. One
case concerned a 2005 Michigan statute that the court described as “designed to
prohibit the dissemination, exhibiting, or display of certain sexually explicit and
ultra-violent explicit video games to minors without the consent of their parents or
guardians.”23 The plaintiffs challenged only the portion of the statute that related to
violent video games, and the court found that “[a] cursory review of the research
relied upon by the state shows that it is unlikely that the State can demonstrate a
compelling interest in preventing a perceived ‘harm,’” and that, even if the state
could demonstrate a compelling state interest, the statute was not narrowly tailored.
As for the research upon which the state relied, the court noted that a study that
“concluded that both video game and television media violence exposure are related
20 American Amusement Machine Association, supra note 17, 244 F.3d at 578-579 (emphasis
in original). Judge Posner also cited great literature with graphic descriptions of violence,
including the Odyssey, The Divine Comedy, and War and Peace, as well as “the classic fairy
tales collected by Grimm, Andersen, and Perrault,” and commented: “To shield children
right up to the age of 18 from exposure to violent descriptions and images would not only
be quixotic, but deforming; it would leave them unequipped to cope with the world as we
know it.” Id. at 577.
21 Video Software Dealers Association v. Maleng, 325 F. Supp.2d 1180, 1188 (W.D. Wash.
2004).
22 Entertainment Software Association v. Blagojevich, No. 05 C 4265, 2005 U.S. Dist.
LEXIS 31100 (N.D. Ill., Dec. 2, 2005). The holding with respect to sexually explicit video
games is discussed below.
23 Entertainment Software Association v. Granholm, No. 05-CV-73634, 2005 U.S. Dist.
LEXIS 28318 (E.D. Mich., Nov. 9, 2005).

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to aggression in adolescents . . . did not evaluate the independent effect of violent
video games.”
The second case in which a district court granted a preliminary injunction
concerned a California statute that, but for the injunction, would have taken effect on
January 1, 2006. It requires, in the court’s description, “violent video games to be
labeled and prohibits the rental or sale of those games to minors.” The court, as in
the other cases, found the research “insufficient to show . . . a compelling interest.”24

Sexually Explicit Video Games Decision
As noted above, in 2005, a federal district court struck down an Illinois statute
that prohibited both violent and sexually explicit video games. With respect to the
prohibition of sexually explicit video games, the district court found:
The Supreme Court has applied a lower standard of review to regulations of non-
obscene speech to protect children, but only in the limited context of television
and radio broadcasting. . . . In evaluating regulations of non-obscene, sexually
explicit material in the fields of cable broadcasting and the Internet, the Court
found them to be content-based and subject to strict scrutiny. Defendants have
failed to show that video games are sufficiently similar to broadcast radio and
television, to justify applying a lower standard of review in the instant case. . . .
Rather, sexually-explicit video games, which almost always have ESRB content-
descriptors, and which individuals must decide to obtain and play, are more
analogous to sexually-explicit images on the Internet, which usually bear
warnings and are not encountered unwillingly.25
The court, therefore, applied strict scrutiny rather than a lower standard of
review. It assumed that the state had a compelling interest in prohibiting sexually
explicit video games, but struck down the statute as not sufficiently narrowly
tailored. The court wrote:
Assuming that the state has a compelling interest that justifies regulating the
material prohibited by the SEVGL [Sexually Explicit Video Games Law], the
statute is not narrowly tailored to achieve those interests. Defendants cite
Denver Area Educ. Telecommunic. Consortium v. FCC, 518 U.S. 727 (1996) and
Pacifica [FCC v. Pacifica Foundation, 438 U.S. 726 (1978)] for the proposition
that restrictions on non-obscene sexually explicit material are narrowly tailored
24 Video Software Dealers Association v. Schwarzenegger, No. C-05-04188 RMW (N.D.
Cal., Dec. 21, 2005).
25 Blagojevich, supra note 22 (citations omitted). The Supreme Court also applied a lower
standard of review to a New York statute that prohibited the sale to minors of what the
Court called “‘girlie’ picture magazines.” See, Ginsberg, supra note 10. The statute applied
to material that was “harmful to minors,” which it defined so as to parallel the Supreme
Court’s Miller test for obscenity, although the statute applied not only to material that was
obscene under the Miller test. (See text accompanying notes 27-28, infra.) This may
explain the district court’s statement that the Supreme Court has applied a lower standard
of review to regulations of non-obscene speech to protect children, but only in the context
of broadcasting; i.e., the district court may have been referring to the New York statute
loosely as applying to obscene material.

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so long as adults could still access such speech. In large part, however, the
holdings in these cases were also based on the fact that they arose in the
broadcasting context. See Denver Area, 518 U.S. at 744-45; Pacifica, 438 U.S.
at 750-51.26
The district court also distinguished the Illinois statute from the New York
statute that the Supreme Court upheld in Ginsberg27 because the Illinois statute,
unlike the New York statute, applied to a broader class of sexually explicit material
than was covered New York statute’s definition of “harmful to minors.” The New
York statute’s definition of “harmful to minors” paralleled the Supreme Court’s
Miller test definition of “obscenity”; whereas the Miller test defines “obscenity” as
material that appeals to the prurient interest, is patently offensive, and lacks serious
literary, artistic, political, or scientific value, the New York statute defined “harmful
to minors” as material that appeals to the prurient interest of minors, is patently
offensive with respect to minors, and lacks social importance for minors.28 The
district court applied the law of the Seventh Circuit, which is that the state “may not,
consonant with the First Amendment, go beyond the limitations inherent in the
concept of variable obscenity in regulating the dissemination to juveniles of
‘objectionable’ material.”29
Application of the Decisions to the Proposal
Violent content. With respect to a First Amendment challenge to the
prohibition of the sale or rental to minors of video games with violent content, a
court following the relevant precedents would apply strict scrutiny, which means that
it would uphold the provision only if it finds that it serves a compelling governmental
interest by the least restrictive means. The determinative question with respect to
whether the prohibition serves a compelling interest would apparently be whether the
government can “demonstrate that the recited harms are real, not merely conjectural,
and that the regulation will in fact alleviate these harms in a direct and material
way.”30 All five cases cited above found inadequate the government’s evidence as
to the harm caused by violent video games, but one cannot know whether a court in
26 Id. Denver Area involved cable television, but the pages the district court cites suggest
that cable and broadcast television are similarly accessible to children and pervasive; that
seems to be what the court means when it writes Denver Area “arose in the broadcasting
context.” Subsequent to Denver Area, however, the Supreme Court indicated that it would
apply strict scrutiny to cable television, and cited with approval Pacifica, which applied less
than strict scrutiny to broadcast media. United States v. Playboy Entertainment Group, Inc.,
supra note 11, 529 U.S. at 813-815 (2000).
27 Ginsberg, supra note 10.
28 Miller v. California, 413 U.S. 15, 27 (1973).
29 Granholm, supra note 23, quoting Cinecom Theaters Midwest States, Inc. v. City of Fort
Wayne, 473 F.2d 1297, 1302 (7th Cir. 1973). Justice Breyer has written that another
“harmful to minors” statute, also with a definition that parallels the Miller test, covers
obscenity “and very little more.” and expands the definition of “obscenity” “only slightly.”
Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 678, 679 (Breyer, J. dissenting).
30 Turner Broadcasting System, supra note 8.

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the future will consider the same research rejected by courts in the past, or, if it does,
whether it will find it more persuasive than have courts in the past.
If a court were to find a compelling governmental interest in the prohibition of
the sale or rental of video games with violent content, then it would have to decide
whether the prohibition constituted the least restrictive means to advance the interest.
A point in favor of the proposal’s constitutionality with respect to this question is that
video game stores would know from the “M” or “AO” rating exactly which videos
they could not legally sell or rent to minors. They would not, therefore, face the
situation that the court found that stores could face in one of the cases discussed
above, namely that, “[w]ithout wholesale, indiscriminate refusals to sell video games
to minors by store operators it appears impossible to protect sellers from
prosecution. . . . Nor is it reasonable to expect store clerks to play each level of each
game to determine if it falls within the act’s definition of ultra-violent explicit.”31
Under the proposal, however, although retailers would know which video games
they were prohibited from selling or renting to minors, they could nevertheless argue
that the proposal prevented them from selling or renting to minors some video games
that are constitutionally protected with respect to minors. In addition, producers of
video games could argue that the proposal’s vagueness would prevent them from
knowing which video games would be rated “M” or “AO” and therefore prohibited
from being sold or rented to minors, and that the proposal’s overbreadth would
prohibit from being sold or rented to minors some video games that were
constitutionally protected with respect to minors. In other words, producers of video
games could argue that the proposal would chill their speech because it might deter
them, for market reasons, from producing video games that were constitutionally
protected with respect to minors. Producers, that is, might fear that some video
games that were constitutionally protected with respect to minors would be rated “M”
or “AO” and therefore would not be sold or rented to minors, and that there was not
a sufficient adult market for such games to make it worthwhile for them to produce
them, or that, even if there were, the producers would make less money because
minors would not be allowed to purchase or rent video games that were
constitutionally protected.
A person challenging the prohibition of the sale or rental of video games with
violent content as overly restrictive might argue that the language that defines the
“M” and “AO” ratings is vague and overbroad. Specifically, such a person might
argue that the phrases “intense violence,” “sexual content,” “strong language,” and
“nudity” are unconstitutionally vague, and that a video game’s having one or more
of these features does not necessarily cause it to lose First Amendment protection as
to minors, and therefore the prohibition on renting or selling to minors video games
with one or more of these features would render the proposal unconstitutionally
overbroad.
Note that the use of “and/or” in the “M” and the “AO” ratings means that
“intense” violence under the “M” rating need not include blood and gore (nor be
“prolonged,” as under the AO rating), and that “strong language” is sufficient for an
31 Granholm, supra note 23.

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“M” rating, even if it is unrelated to violence or sex. The breadth of the ban on the
sale or rental to minors of video with “strong language” might be especially
problematic. The Supreme Court has written:
[M]inors are entitled to a significant measure of First Amendment protection, and
only in relatively narrow and well-defined circumstances may government bar
public dissemination of protected materials to them. . . . Speech that is neither
obscene as to youths nor subject to some other legitimate proscription cannot be
suppressed solely to protect the young from ideas or images that a legislative
body thinks unsuitable for them.32
Furthermore, the Court has also found that the First Amendment applies “not
only [to] ideas capable of relatively precise, detached explication, but [to] otherwise
inexpressible emotions as well. In fact, words are often chosen as much for their
emotive as their cognitive force. We cannot sanction the view that the Constitution,
while solicitous of the cognitive content of individual speech, has little or no regard
for that emotive function which, practically speaking, may often be the more
important element of the overall message sought to be communicated.”33 “Strong
language,” therefore, is protected speech, including generally for minors; the only
exception the Supreme Court has found is with respect to the use of “indecent”
language on broadcast radio and television during hours — but not all 24 — when
children are likely to be in the audience.34
Sexual content. Because the courts generally assume, without requiring
evidence, that sexually explicit material is harmful to minors, the proposal’s
prohibition of the sale or rental of video games with sexual content might more easily
pass the “compelling governmental interest” prong of the strict scrutiny test than
would the proposal’s prohibition of the sale or rental of video games with violent
content. Even here, however, the “M” rating refers merely to “sexual content,” by
contrast with the “AO” rating’s reference to “graphic sexual content.” Sexual
content, especially if it is not graphic, does not necessarily constitute pornography,
but may concern such subjects as birth control and sexually transmitted diseases.
(Video games may not typically address such matters, but, under the substantial
overbreadth doctrine discussed above, it might not be necessary that they do for a
court to find the proposal facially invalid.) It might be impossible for the government
to demonstrate a compelling interest in denying minors access to all material with
sexual content.35 If a court did not rule on this question and instead applied the “least
restrictive means” prong of strict scrutiny, then it might find the proposal overbroad
32 Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-214 (1975) (citations omitted).
33 Cohen v. California, 403 U.S. 15, 26 (1971).
34 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978).
35 See, text accompanying note 14, supra, especially the Supreme Court’s comment in Reno
that it would “neither accept nor reject the Government’s submission that the First
Amendment does not forbid a blanket prohibition on all ‘indecent’ and ‘patently offensive’
messages communicated to a 17-year-old — no matter how much value the message may
have and regardless of parental approval. It is at least clear that the strength of the
Government’s interest in protecting minors is not equally strong throughout the coverage
of this broad statute.”

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in applying to all material with sexual content in an effort to deny minors access to
some of it. The “M” rating, like the statute that was struck down in the one federal
case that addressed a ban on video games with sexual content, is not limited to
material that is “obscene as to minors.”
An “AO” rating may be imposed on video games with “graphic sexual content
and nudity,” which suggests that nudity alone would not suffice for an “AO” rating,
though it might be considered “sexual content” and suffice for an “M” rating. This
seems problematic, because the Supreme Court has written that nudity alone “does
not place otherwise protected material outside of the First Amendment.”36 This
statement was not made with reference to minors’ First Amendment rights, but, if a
court, in applying the First Amendment, took into account the ages of minors who
typically buy or rent video games, the extent of the nudity portrayed, and the manner
in which it is portrayed, then it might find the proposal’s coverage of nudity vague
and overbroad.
Application to “M”- and “AO”-rated video games. Because the proposal
would prohibit the sale or rental to minors of video games with either “M” or “AO”
ratings, the constitutionality of each of these prohibitions should be examined
separately. Video games with “M” ratings, as noted, “may contain intense violence,
blood and gore, sexual content, and/or strong language.” If a video game contained
any one of these features, then it would be rated “M” and could not be sold or rented
to minors. If it would be unconstitutional to prohibit the sale or rental to minors of
video games simply because they contain strong language, or simply because they
contain sexual content — without regard to the particular strong language or the
particular sexual content — then the substantial overbreadth doctrine would seem
likely to render unconstitutional a prohibition on the sale or rental to minors of “M”-
rated video games, given the current criteria for an “M” rating.
Video games with “AO” ratings, as noted, “may include prolonged scenes of
intense violence and/or graphic sexual content and nudity.” Applying the same
reasoning just applied to video games with “M” ratings, if it would be
unconstitutional to prohibit the sale or rental to minors of video games simply
because they contained prolonged scenes of intense violence, without regard to their
literary value or the possibility of harm, then the substantial overbreadth doctrine
would seem likely to render unconstitutional a prohibition on the sale or rental to
minors of “AO”-rated video games, given the current criteria for an “AO” rating.
Conclusion
In conclusion, it appears that, for a prohibition of the sale or rental to minors of
video games with violent content to be upheld, the government would have to present
empirical evidence that these games harm minors or cause them to become violent.
The prohibition of the sale or rental to minors of video games containing sexual
content, however, would seem more likely to be upheld without empirical evidence
that such games harm minors.
36 Schad v. Mount Ephraim, 452 U.S. 61, 66 (1981).

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Nevertheless, the apparent vagueness and potential overbreadth of the current
criteria for “M” and “AO” ratings might cause a statutory prohibition on the sale or
rental to minors of video games that incorporates those ratings to be found
unconstitutional on its face, even if the sale or rental to minors of some of the video
games to which the “M” or “AO” rating apply could constitutionally be prohibited
by more narrowly tailored legislation.

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