Far more extensive in the protection it offers speech, and perhaps at the limit of protection while still allowing restrictions on obscenity, is Professor Schauer's "Free Speech Principle."  See Frederick F. Schauer, Free Speech: A Philosophical Enquiry (1982).  While levels of protection may vary in Schauer's approach, to merit protection there must be communication.  Sufficiently hard-core obscenity does not merit protection because, in his view, it is not even speech.  He argues that a film with nothing but close ups of sexual organs engaged in intercourse, with no dialogue, no music and no attempt at artistic depiction is not the sort of communication addressed by the First Amendment.

 

[A]ny definition of "speech" . . . that included this film . . . is being bizarrely literal or formalistic.  Here the vendor is selling a product for the purpose of inducing immediate sexual stimulation.  There are virtually no differences in intent and effect from the sale of a plastic or vibrating sex aid, the sale of a body through prostitution, or the sex act itself.  At its most extreme, hard core pornography is a sex aid, no more and no less, and the fact that there is no physical contact is only fortuitous.

 

Id. at 182.  What Schauer emphasizes is the lack of higher order mental processing of the images presented.  The effects are hormonal rather than cerebral.  But, the argument carries over equally well to images of violence, if they too contain no real communication and produce only hormonal effects.

While there are first amendment theories that speak against the existence of a sexual obscenity exception and would also speak against an exception for violent obscenity, the obscenity exception is a part of the law.  As long as it is a part of the law, the relevant theories are those that justify it, and those theories also justify an exception for violent obscenity. 

 

D. Offense as an Element of Obscenity Does Not

  Distinguish Violence from Sex

 

The Seventh Circuit's Kendrick opinion rejected the argument that depictions may be obscene based solely on violence at least in part because the court believed that bans on obscenity are based on offense, while "harmful to minors" statutes aimed at violence are motivated by concerns over harmful effects.  See Kendrick, 244 F.3d at 574; see also James v. Meow Media, Inc.,  300 F.3d 683, 698 (6th Cir. 2002)(making a similar point but in a tort context in which the complaint clearly reflected concern over effects).  While Indianapolis and St. Louis may have expressed concerns over the effects of violence, it is unclear why the government must be motivated by offensiveness.  Certainly, if material is protected, a regulation aimed at effect would be seen as content based and would face strict scrutiny.  But, the claim that violence can be obscene is a claim that the material is not always protected, and if the material is not protected a concern over effects should not raise a constitutional concern.

If a city passed an ordinance barring the distribution of sexually obscene materials to minors, it should not matter that the council was motivated by a concern over teenage pregnancy.  The material is not protected, so the legislation need not meet the test of strict scrutiny but need only be rationally related to the clearly permissible purpose of reducing pregnancy among minors.   Miller does make it clear that to be found obscene material must be patently offensive, see 413 U.S. at 24, and any extension to violence would require a similar finding of offensiveness, but the St. Louis ordinance does require that the material be "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors."  St. Louis Revised Ordinances ' 602.425(c).

 

The Seventh Circuit did seem to allow that some depictions of violence may be offensive, perhaps even to the point of being obscene.

 

One can imagine an ordinance directed at depictions of violence because they, too, were offensive.  Maybe violent photographs of a person being drawn and quartered could be suppressed as disgusting, embarrassing, degrading, or disturbing without proof that they were likely to cause any of the viewers to commit a violent act.  They might even be described as "obscene," in the same way that photographs of people defecating might be, and in many obscenity statutes are, included in the legal category of the obscene....

244 F.3d at 575.  While video games may not reach this level of realistic depiction and while such a level may be required to find material obscene for an adult audience,^[1] the standards for  access by minors should not require the same level of explicitness.  If a video game involved even stylized and patently fictitious but explicit sex, that would not necessarily keep it from being found obscene for an audience of children, if it violated community standards of offensiveness as to what is suitable for children.

 

Despite the Seventh Circuit's stated recognition that violence might be sufficiently offensive as to be obscene, the distinction drawn between obscenity, as offensive, and violence, as of concern only because of the harm it is seen to cause, seems to indicate a belief in the unlikelihood of finding such offense.  If that is what is behind the Seventh Circuit opinion, the conclusion may be simply incorrect.  A study of community reaction to sexual and to violent films asked participants to assess the films in terms of whether they found the films acceptable as well as whether they thought their community found them acceptable.  See Daniel Linz, Edward Donnerstein, Bradley J. Shafer, Kenneth C. Land, Patricia L. McCall & Arthur C. Graesser, Discrepancies Between the Legal Code and Community Standards for Sex and Violence: An Empirical Challenge to Traditional Assumptions in Obscenity Law, 29 Law & Soc'y Rev. 127 (1995).  The scientists concluded that the adults found the sexual films not to be patently offensive, while the violent films were seen as exceeding their standards for offensiveness.  See id. at 155-56.  Depictions of violence can be, indeed have been, found offensive under community standards, and the study that establishes that was based on an adult audience. 

There is no reason why the finding should not carry over to exposure of a youthful audience.  Certainly, the possibility is not so remote as to justify striking down the ordinance on its face on the theory that violence cannot be offensive.  Offensiveness is a requirement for obscenity.  It is also an element required by the ordinance.  While a court or jury may find a particular game not to be offensive, the ordinance should withstand a facial challenge.

 

III. THE OBSCENITY AS TO CHILDREN DOCTRINE JUSTIFIES THE ST. LOUIS ORDINANCE

 

                A. "Harmful to Minors" Statutes Focusing on Violence Fit Within the Framework Established by Ginsberg v. New York

 

The New York statute upheld in Ginsberg prohibited the distribution of material  depicting nudity that is "harmful to minors" and went on to define material "harmful to minors" as that which "(i) predominantly appeals to the prurient, shameful or morbid interests of minors, and (ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, and (iii) is utterly without redeeming social importance for minors."  390 U.S. at 633 (quoting N.Y. Penal L. ' 484-h(f)(1)).  The effect of the Court's holding was to allow prosecution for the distribution to minors of material that was obscene for such an audience, even though the material would not be nonobscene and would be protected for an adult audience.

The St. Louis ordinance takes a very similar approach.  The ordinance, with regard to violent games, also bans play by or sale to those under seventeen of games "harmful to minors."  "Harmful to minors" is defined with variation from the definition in Ginsberg to account for a focus on violence and a change in the "serious value" prong to reflect the Miller test for obscenity.  The ordinance addresses material that ">predominantly appeals to minors' morbid interest in violence', >is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors, lacks serious literary, artistic, political or scientific value for minors, and contains . . .  graphic violence.'" 200 F. Supp.2d at 1130 (quoting St. Louis Revised Ordinances ' 602.425(c)).  If violence can, as a result solely of that violence, be obscene, then the St. Louis ordinance recognizes, as did the statute in Ginsberg, that standards of obscenity vary depending on the audience.  The St. Louis ordinance is addressed to distribution to or play by youth and tailors its definition so as to apply only to material that is obscene as to that audience.  If violent depictions that are sufficiently explicit, offensive and lacking in value are recognized as obscene,^[2] then Ginsberg provides the basis for the constitutionality of the sort of ordinance at issue here.

 

B. The Ordinance is Not Unconstitutionally Vague

 

While obscene material is unprotected by the First Amendment, obscenity statutes still may raise vagueness concerns.  The vendor or arcade operator must have reasonable notice as to the material included within the scope of the ordinance.  The St. Louis ordinance defines "graphic violence" so as to provide that notice.  "Graphic violence" is defined as "the visual depiction or representation of realistic serious injury to a human or human-like being where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfiguration."  St. Louis Revised Ordinances ' 602.425(d).  This should be found to meet the Miller requirement that the conduct addressed be specifically defined by law.  See Miller, 423 U.S. at 24.

The court below examined the vagueness issue and found the ordinance acceptable and far more precise than the statute held unconstitutional in Webster.  See  Interactive Digital Software, 200 F. Supp.2d at 1139-40.  Certainly, the ordinance provides at least as much notice as is given magazine vendors as to what is sexually obscene for minors.  The use in the definition of the industry's own terms was seen as  making the ordinance sufficiently clear.  "When measured by common understanding and practice, especially by the industry, the language . . . sufficiently conveys a definite warning as to the proscribed conduct."  Id. at 1140.
 

The vagueness concern is further diminished by the inclusion in the ordinance of a presumption that games rated as suitable for those under seventeen are not harmful to minors.  The video arcade operator or retailer of video games is given far more notice than was enjoyed by the operator of the lunch counter who sold the magazines at issue in Ginsberg.  With regard to obscenity, the Supreme Court has said that the only scienter requirement is that the vendor knew of the nature of the material involved and not that the depictions would be found obscene.  See, e.g., Hamling v. United States, 418 U.S. 87, 123-24 (1974).  The video game arcade operator or seller is provided better notice than the magazine dealer, since the video game industry provides that notice through its ratings.

 

 

C. The Ordinance is Distinguishable from the Ordinance in American Amusement Machines Ass'n v. Kendrick Based on the Age Limits Imposed

The St. Louis ordinance is also distinguishable from the Indianapolis ordinance found lacking by the Seventh Circuit in Kendrick.  The Kendrick appellate opinion stated a concern over the eighteen year old age limit there.  "Now that eighteen-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn eighteen, so their minds are not a blank when they first exercise the franchise."  244 F.3d at 577 (emphasis in original).  This difference between an eighteen year old limitation and one set at an earlier age was also at least relevant in the Supreme Court's consideration of efforts to protect children.  In Reno v. American Civil Liberties Union, 521 U.S. 844 (1997), the Supreme Court noted that the Internet restrictions at issue there were broader than what had been found acceptable in Ginsberg in part because Ginsberg prohibited sales to those under seventeen, while the Internet regulations used eighteen as the relevant age, see 521 U.S. at 865.   The St. Louis ordinance employs a seventeen year old limit, see 200 F. Supp.2d at 1138,  and is thus distinguishable from Kendrick, although not from Webster which also involved a seventeen year old limit, see 968 F.2d at 687.

The Seventh Circuit also refused to accept, as a justification for Indianapolis' regulations, the support of parental desires to limit their children's access to violent video games.  The court said that the eighteen year old's right to vote is his or her own right independent of parental rights.  The right of the seventeen year olds to form political opinions was therefore also independent of the parents' wishes, at least to the extent of limiting the state from being enlisted in the enforcement of those wishes.  See Kendrick,  244 F. 3d at 577.  In contrast, the Supreme Court has found the right of parents to be important.  The Reno opinion noted, as another relevant difference between the statute found constitutional in Ginsberg and the statute found unconstitutional in Reno, that the Ginsberg statute did not restrict parental provision of the materials at issue there, while the Internet regulations under challenge limited everyone, including parents.   See Reno, 521 U.S. at 845.  The St. Louis ordinance does allow parents to give consent for their children to play or purchase violent video games; in fact, the court below concluded that the ordinance makes it easy for parents to do so.  See Interactive Digital Software, 200 F. Supp.2d at 1138.

The St. Louis ordinance's combination of a "below the age of seventeen" age limit and allowing parents to make the choices that ought to be theirs for those younger than seventeen protects first amendment values while also protecting children.  Below the age of seventeen, it recognizes the legitimate role parents play in decisions as to the influences their children face.  The issue of eighteen year old voting, whatever the relationship of playing violent video games to the exercise of that right, is protected by allowing the new voter a year in which the state does not impose even the parent's view as to what is suitable.

 

                D. Concerns Over the Psychological and Physical Well Being of Youth Comport With the Application of Ginsberg v. New York

The Seventh Circuit, in Kendrick, saw an inconsistency between the claim that violent video games are obscene as to minors and the recitation of concerns by Indianapolis as to the harmful effects of such material. See 244 F.3d at 575.  The statute at issue in Ginsberg included a finding that the material addressed was "a basic factor in impairing the ethical and moral development of our youth and a clear and present danger to the people of the state."  390 U.S. at 641 (quoting N.Y. Penal Law ' 484-e).  That legislative concern is also present in the St. Louis ordinance, with perhaps a bit more specificity as to the developmental and safety concerns at stake.  The legislative concern behind the statute at issue in Ginsberg did not keep the statute from being held constitutional, and concerns over the physical and psychological well being of youth should not make the St. Louis ordinance unconstitutional. 

So long as the ordinance addressed material that is obscene as to minors, and thus unprotected, the fact that the ordinance's limitations will also accomplish some good more tangible than reducing offense, does not make the effort illegitimate.  While the council may have believed that violent video games present a sufficient danger to justify the ordinance even in the face of a finding that such games are protected, that belief does not serve to make regulatory efforts against the games unconstitutional, if they are unprotected.  Indeed, even if the games are unprotected, the ordinance would still be tested for rationality, and the evidence with regard to the effects of violent games is certainly sufficient to meet that standard.  The Ginsberg court expressed doubt as to the  scientific validity of the claims against the sexual materials at issue there but said that, since the material was unprotected as to children, scientific certainty was not required.  See 390 U.S. at 641.  The scientific evidence on violence is far stronger and certainly meets the rationality standards set by Ginsberg.

 

CONCLUSION

 

Judge Hamilton concluded his district court opinion in Kendrick, later overruled by the Seventh Circuit, with the following terse summary.
 

It would be an odd conception of the First Amendment . . . that would allow a state to prevent a boy from purchasing a magazine containing topless women in provocative poses . . . but give the same boy a constitutional right to train to become a sniper at the local arcade without his parent's permission.
 

115 F. Supp. at 981.  It is difficult to conceive of a better statement of the issue.
 

For the reasons stated above, amicus curiae The Lion & Lamb Project respectfully requests that this Court affirm the district court judgment in this case.

 

Respectfully submitted,

 

 

PROF. KEVIN W. SAUNDERS