CTA’s video game ad ban draws court challenge

By Jamie Loo

First Amendment reporter

The Chicago Transit Authority’s rule prohibiting advertisements for violent video games is being challenged in court for allegedly violating constitutionally protected speech.

The Entertainment Software Association (ESA), an industry trade group, is suing the CTA for its policy that specifically bans advertisements for video and computer games that are rated as “M” for “Mature 17+” and “AO” for “adults only 18+”.

The new restrictions, which took effect in January, cite the correlation between video game violence and youth violence as part of the reason for the ban. It also noted that between Sept. 2007 and August 2008, 36 Chicago public school students had been killed. The ordinance states that the CTA “has a substantial interest in ensuring that its assets and resources are not used to advertise violent video or computer games which may foster or encourage violent or aggressive behavior.”

In the lawsuit filed in U.S. District Court, the ESA says that the ordinance unconstitutionally “restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so.” The ESA argues that the CTA allows advertisements for books, magazines, movie and television shows that have similar ratings and content. The ordinance is unnecessary, the ESA said, because advertisements that are seen by the general public are reviewed by the Entertainment Software Rating Board’s Advertising Review Council. The video game’s content rating is also displayed on the ads.

This isn’t the first time that the CTA and ESA have met in a court room over video game advertisements. Last year the CTA entered a contract to display advertisements for the video game Grand Theft Auto IV. The ads were removed after a media report questioned why the ads were allowed after a wave of youth violence in Chicago. The ESA took the CTA to court for breach of contract and First Amendment violations. In the settlement, the CTA agreed to allow a replacement ad campaign in November and December 2008.

“Courts across the United States, including those in the CTA’s own backyard, have ruled consistently that video games are entitled to the same First Amendment protections as other forms of entertainment,” said ESA chief executive officer Michael D. Gallagher in a press statement. “The CTA appears unwilling to recognize this established fact, and has shown a remarkable ignorance of the dynamism, creativity and expressive nature of computer and video games. The ESA will not sit idly by when the creative freedoms of our industry are threatened.”

CTA officials did not respond to requests for comment by press time.

Protected speech

Although video games are protected by the First Amendment, some states and the federal government have attempted to regulate violent video game sales. Here are some recent cases:

-In February, the 9th U.S. Circuit Court of Appeals ruled that California’s labeling requirements and restrictions on the sale or rental of violent video games to minors was unconstitutional.

-U.S. Rep. Joe Baca, D-Calif., introduced the Video Game Health Labeling Act earlier this year which would require a “WARNING: Excessive exposure to violent video games and other violent media has been linked to aggressive behavior” label on games rated “T” for Teen or higher. It was sent to a committee but the House did not vote on this bill.

-Former Illinois Gov. Rod Blagojevich attempted to ban the sale of violent and sexually explicit videos games to children under age 18, and included heavy fines and up to one year in prison for violators. The law was challenged in the court system and was eventually struck down by the 7th U.S. Circuit Court of Appeals. Similar laws in Michigan., Louisiana and Minnesota were also found unconstitutional by courts.

-Washington tried to prohibit the sale of video games showing violence against law enforcement officers. A court struck down that law in 2004.