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Video games seem to have two purposes these days: providing entertainment and keeping attorneys busy. Very busy. The governor of Illinois recently introduced legislation that would ban the sale of violent or sexually explicit video games to minors — the latest move in a running skirmish by states across the nation to control video game sales. In the last two years several states — including Georgia, Indiana, Missouri and Washington — have made similar attempts to regulate mature-themed videos, but the courts have repeatedly quashed those efforts on First Amendment grounds. The booming video game industry also has sparked litigation across the country, including an action pending in Tennessee against the makers of the “Grand Theft Auto III” video over the shooting death of a man allegedly killed by two teenagers who said they were inspired by the video game. Hamelny v. Sony, No. 28,613 III (Cocke Co., Tenn., Cir. Ct.). “Grand Theft Auto” also was the target of a lawsuit in Florida in which a group of Haitian-Americans last December sued the maker of the game over a phrase in the video that said “Kill the Haitians.” The company has since removed the phrase from the game. Haitian American Coalition of Palm Beach Co. v. Take-Two Interactive Inc., No. 03-CV-81180 (S.D. Fla.). [NLJ, 1-12-04]. The explosive growth of the video game industry — which records $7 billion in sales annually — is one reason behind the legislation and litigation, attorneys note. “I think that as their [video game producers] business grows and their pockets grow, they become a target for litigation,” said intellectual property transactional attorney Brandon Villery of the Los Angeles office of Morrison & Foerster. FIRST AMENDMENT OBSTACLES Meanwhile, First Amendment lawyers, observing the latest Illinois proposal, believe lawmakers there will face the same legal obstacle confronting other states: The video bill won’t pass constitutional muster. “I think they’re going to run into the same problem — that violent games are entitled to free speech restrictions and attempts to restrict their sale in any way will violate their First Amendment protection,” said Lawrence Walters, a First Amendment attorney at Altamonte Springs, Fla.-based Weston, Garrou & Dewitt who represents numerous video game companies worldwide. “Any attempt to censor or regulate speech doesn’t fare too well with the courts,” Walters added. But Illinois Governor Rod Blagojevich, who has a team of lawyers working on the issue, believes that he’ll be able to get around the free speech issue. His aides say that the proposed bill doesn’t seek to ban violent video games altogether, but only to keep them out of the hands of minors. The Illinois proposal, which is to be introduced at the upcoming legislative session this month, would ban the distribution, sale, rental and availability of violent and sexually explicit video games to minors. “Violent” games would be defined as those depicting human-on-human violence including death, dismemberment, amputation, decapitation, maiming, disfigurement, mutilation of body parts or rape. Jack Thompson, a solo practitioner based in Coral Gables, Fla., is working with lawmakers in both Illinois and Michigan seeking to regulate the video industry. According to Thompson, 47 states have harmful-to-minor statutes that regulate the sale or distribution of materials deemed harmful to minors. He believes M-rated video games (for mature audiences) fall into this category. But attorneys representing the video game industry believe that the harmful-to-minor statutes are too vague. They argue that the content found in video games does not violate those laws, and that the sexual content in games is implied, not real. SUIT AGAINST BEST BUY Thompson sued retailer Best Buy Co. Inc. under a Florida statute that prohibits the sale of sexual materials deemed harmful to minors, and argued the sale of violent and sexually explicit videos to minors was a public nuisance and a public safety issue. Thompson v. Best Buy, No. 04-23568 (Miami-Dade Co., Fla., Cir. Ct.). Best Buy agreed to enforce a nationwide policy, beginning this month, whereby the company would seek the identification of any person who looks 21 or younger and tries to buy M-rated videos. Attorney Elliott Kaplan, Best Buy’s lawyer in the case, said that Best Buy agreed to the policy because it felt it had a social responsibility to ensure that M-rated games are not available to minors. He noted that Best Buy had a similar ID policy in place already, only it did not specify an age. Kaplan, a partner at Minneapolis-based Robins, Kaplan, Miller & Ciresi, said that while Best Buy has “an absolute right” to sell games like “Grand Theft Auto,” it also has a social obligation to keep M-rated videos out of the hands of minors.

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