Entertainment Softwa v. Blagojevich, Rod

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 06-1012, 06-1048 & 06-1161
ENTERTAINMENT SOFTWARE ASSOCIATION, et al.,
Plaintiffs-Appellees,
v.
ROD R. BLAGOJEVICH., GOVERNOR, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 C 4265—Matthew F. Kennelly, Judge.
ARGUED JUNE 5, 2006—DECIDED NOVEMBER 27, 2006
Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. In this appeal, we must deter-
mine whether the State of Illinois has gone too far in its
attempt to protect minors from the allegedly dangerous
impact of certain video games. The plaintiffs, associations
representing video game manufacturers and retailers,
successfully challenged the constitutionality of the Illinois
Sexually Explicit Video Game Law in the district court. The
State now appeals the district court’s imposition of a
permanent injunction against enforcement of the law.
Primarily because we conclude that the Sexually Explicit
Video Game Law is not sufficiently narrowly tailored, we
affirm the judgment of the district court.
2 Nos. 06-1012, 06-1048 & 06-1161
I. BACKGROUND
On July 25, 2005, the State of Illinois enacted Public Act
94-0315. The Act is comprised primarily of the Violent
Video Game Law (“VVGL”) and the Sexually Explicit Video
Game Law (“SEVGL”). The SEVGL requires video game
retailers to place a four square-inch label with the numerals
“18” on any “sexually explicit” video game. See 720 ILCS
§ 5/12B-25(a). It also requires them to place a sign in their
stores explaining the video game rating system and to
provide customers with brochures about the video game
rating system. See 720 ILCS §§ 5/12B-30(a), 35(a). Most
significantly, the SEVGL criminalizes the sale or rental of
sexually explicit video games to minors. See 720 ILCS
§ 5/12B-15. The statute imposes criminal penalties on any
“person who sells, rents, or permits to be sold or rented, any
sexually explicit video game to any minor . . . .” Id.
The SEVGL defines “sexually explicit” video games as:
[T]hose that the average person, applying con-
temporary community standards would find,
with respect to minors, is designed to appeal or
pander to the prurient interest and depict or
represent in a manner patently offensive with
respect to minors, an actual or simulated sexual
act or sexual contact, an actual or simulated
normal or perverted sexual act or a lewd exhibi-
tion of the genitals or post-pubescent female
breast.
720 ILCS 5/12B-10(e).
The day after enactment, the plaintiffs filed suit in the
United States District Court for the Northern District of
Illinois, facially challenging the constitutionality of both the
VVGL and the SEVGL. The plaintiffs are associations
representing video game manufacturers and retailers. The
defendants are the Governor of Illinois, the Illinois Attorney
General, and the State’s Attorney for Cook County (collec-
Nos. 06-1012, 06-1048 & 06-1161 3
tively, “the State”).1 The plaintiffs are all participants in the
video game industry’s ratings system—the Entertainment
Software Rating Board (“ESRB”), which rates games on the
basis of the maturity/age for which the game is
appropriate.2 At the outset of the litigation the plaintiffs
moved for a preliminary injunction and the defendants
moved to dismiss. The motion to dismiss was denied. The
district court stayed consideration of the motion for a
preliminary injunction and held a three-day trial. Relevant
to the SEVGL, during the trial, the State introduced screen
shots from three games: (1) Grand Theft Auto: San Andreas,
(2) Leisure Suit Larry: Magna Cum Laude, and (3) The Guy
Game: Uncut and Uncensored. Parts of these games feature
various images that the State alleges are covered by the
law, ranging from digital drawings of exposed breasts to
digital animations of sex acts. The plaintiffs introduced the
game God of War, a game which takes place in ancient
Greece and roughly tracks Homeric themes, as evidence of
a benign game which was unconstitutionally criminalized
by the law. In God of War, a single scene depicts two bare-
chested women in Ancient Greece. The plaintiffs allege that
the scene featuring the bare-chested women is critical to the
game as it marks the point at which the character rejects
the temptations of the physical realm to focus on his
mission.
1
Although the defendants have filed separate briefs, their
arguments are identical except where noted.
2
The ratings include EC (early child), E (everyone), E10+ (for
those over age ten), T (teen), M (mature—for those over 17), and
AO (adults only). Under the ESRB video games are also labeled
with content descriptors such as “strong sexual content.” The
SEVGL includes an affirmative defense for retailers charged with
violation of the prohibition against selling to minors that bars
prosecution unless the rating of the game was M or AO.
4 Nos. 06-1012, 06-1048 & 06-1161
At the conclusion of the trial, Judge Kennelly applied
strict scrutiny to the statutes and found for the plaintiffs,
concluding that both the VVGL and the SEVGL were
unconstitutional.3 Specifically, the court concluded that the
SEVGL was not narrowly tailored and that the SEVGL’s
brochure, labeling and signage provisions constituted
“compelled speech” in violation of the First Amendment.
The court also found that sovereign immunity did not bar
suit against the Attorney General in this case.4 The State
now appeals only the district court’s rulings pertaining to
the SEVGL.
II. DISCUSSION
A. Standard of Review
We review de novo the district court’s legal determina-
tions that the Attorney General is not entitled to dismissal
on the basis of sovereign immunity and that the SEVGL is
unconstitutional. See Anderson v. Milwaukee County, 433
F.3d 975, 978 (7th Cir. 2006); Nelson v. La Crosse County
Dist. Atty., 301 F.3d 820, 825 (7th Cir. 2002). We defer to
the district court’s factual findings after a full bench trial
unless they are clearly erroneous. See Gaffney v. Riverboat
Servs. of Ind., 451 F.3d 424, 447 (7th Cir. 2006).
3
Although the State argues that the trial implicated only the
VVGL, it seems plain to us that the trial implicated both the
VVGL and the SEVGL.
4
The district court also rejected the argument of the State’s
Attorney of Cook County, appellant Richard A. Devine, that he
was immune from suit. It appears that the State’s Attorney has
now abandoned this argument as his brief only adopts the
arguments of Governor Rod Blagojevich’s brief.
Nos. 06-1012, 06-1048 & 06-1161 5
B. Sovereign Immunity
The Attorney General challenges the district court’s
ruling that she is not immune from suit pursuant to the
Eleventh Amendment of the United States Constitution.
The Supreme Court has authorized suits against state
officials in their official capacities when plaintiffs seek to
enjoin allegedly unconstitutionally statutes. See Ex parte
Young, 209 U.S. 123, 157 (1908). The Court held in Ex parte
Young that:
In making an officer of the state a party defen-
dant in a suit to enjoin the enforcement of an
act alleged to be unconstitutional, it is plain
that such officer must have some connection
with the enforcement of the act, or else it is
merely making him a party as a representative
of the state, and thereby attempting to make the
state a party.
Id. The Attorney General argues that the plaintiffs have
only established a “general connection” between her duties
and powers and the SEVGL but not the specific connection
necessary to overcome sovereign immunity. She argues that
her primary duties do not involve the prosecution of
ordinary criminal cases (as a prosecution under the SEVGL
would be), but only in criminal appeals.
We are unconvinced by this argument. The Attorney
General concedes that she has the power to enforce the
SEVGL; the power is simply concurrent with that of the
State’s Attorney. This satisfies the “some connection”
requirement of Ex parte Young. See In re Dairy Mart
Convenience Stores, Inc., 411 F.3d 367, 373 (2d Cir. 2005)
(“Under Ex parte Young, the state officer against whom a
suit is brought must have some connection with the enforce-
ment of the act . . . . [i]t is not necessary that the officer’s
enforcement duties be noted in the act.”) (internal quotation
6 Nos. 06-1012, 06-1048 & 06-1161
marks and citation omitted); Planned Parenthood of Idaho,
Inc. v. Wasden, 376 F.3d 908, 919-20 (9th Cir. 2004) (“some
connection” requirement satisfied where Attorney General
had concurrent power with county prosecutors to enforce
abortion-related parental notification statute); cf. Citizens
for Equal Protection v. Bruning, 455 F.3d 859, 864 (8th Cir.
2006) (no Eleventh Amendment immunity where the
Attorney General had “some connection” to enforcement of
Nebraska Constitution Amendment that prohibited same
sex marriage).
The Attorney General’s reliance on our decision in
Sherman v. Community Consolidated School District 21 of
Wheeling Township5 is misplaced. In Sherman, we con-
cluded that the Attorney General was immune from suit in
a challenge to an Illinois statute which required recitation
of the Pledge of Allegiance. See id. at 441. But the statute
in Sherman had no enforcement provisions or penalty
clauses. Id. Involvement of the Attorney General was highly
improbable because he had no authority to prosecute the
plaintiff under the statute. That is not the situation in this
case.
Moreover, the Supreme Court has instructed us that, “[i]n
determining whether the doctrine of Ex parte Young avoids
an Eleventh Amendment bar to suit, a court need only
conduct a ‘straightforward inquiry into whether the com-
plaint alleges an ongoing violation of federal law and seeks
relief properly characterized as prospective.’ ” Verizon Md.,
Inc. v. Public Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)
(quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S.
261, 296 (1997)) (brackets omitted). Such an inquiry leads
us to the conclusion that the Attorney General is not
immune. We therefore affirm the district court’s sovereign
immunity ruling.
5
980 F.2d 437 (7th Cir. 1992).
Nos. 06-1012, 06-1048 & 06-1161 7
C. Constitutionality of the SEVGL’s Sale and Rental
Provisions
The plaintiffs argue that the sale and rental provisions of
the SEVGL facially violate the First and Fourteenth
Amendments of the United States Constitution. As the
State concedes, the SEVGL is a content-based restriction on
speech, and we must employ strict scrutiny in assessing its
constitutionality.6 See United States v. Playboy Entm’t.
Group, 529 U.S. 803, 813 (2000); FCC v. Pacifica, 438 U.S.
726, 751 (1978). To survive strict scrutiny, the SEVGL
“must be narrowly tailored to promote a compelling Govern-
ment interest.” Playboy, 529 U.S. at 811. Generally, “a
statute is narrowly tailored only if it targets and eliminates
no more than the exact source of the ‘evil’ it seeks to rem-
edy.” See Ward v. Rock Against Racism, 491 U.S. 781, 804
(1989) (quoting Frisby v. Schultz, 487 U.S. 474, 485 (1988))
(internal quotation marks omitted). Put another way, a
statute is not narrowly tailored if “a less restrictive alterna-
tive would serve the Government’s purpose.” See Playboy,
529 U.S. at 813. We must assure that the State does not
“burn the house to roast the pig.” See Butler v. Michigan,
352 U.S. 380, 383 (1957) (Frankfurter, J.).
Here, the State’s identified purpose is “shielding children
from indecent sexual material and in assisting parents in
protecting their children from that material.” Governor’s Br.
at 16. We need not spend time determining whether this is
a compelling interest; it clearly is.7 See Ashcroft v. ACLU,
6
In the district court the State argued that rational basis
scrutiny was applicable, but it has abandoned this argument on
appeal.
7
The plaintiffs’ compelling interest argument seems to conflate
the narrow tailoring and compelling interest inquiries. Their brief
argues that “to withstand strict scrutiny, the State must demon-
(continued...)
8 Nos. 06-1012, 06-1048 & 06-1161
542 U.S. 656, 675 (2004) (“To be sure, our cases have
recognized a compelling interest in protecting minors from
exposure to sexually explicit materials.”); Sable Commc’ns
of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989) (“We have
recognized that there is a compelling interest in protecting
the physical and psychological well-being of minors.”). The
burden is on the State to demonstrate that the SEVGL is
narrowly tailored to achieving this purpose. See Weinberg
v. City of Chicago, 310 F.3d 1029, 1038 (7th Cir. 2002). One
line from the Governor’s brief encapsulates the State’s
narrow tailoring argument: “The SEVGL is narrowly
tailored because its effect is perfectly drawn to impact only
the subject group—minors—while leaving fully intact the
First Amendment rights of adults.”
We think it important first to reaffirm our observation in
American Amusement Machine Association v. Kendrick,8 244
F.3d 572, 576 (7th Cir. 2001), that “[c]hildren have First
Amendment Rights.” The implication of this observation is
that our narrow tailoring inquiry must be broader than the
question of whether adults will be affected by the chal-
lenged legislation. The Constitution also requires us to ask
whether legislation unduly burdens the First Amendment
rights of minors. And for good reason — as we observed in
AAMA, history has shown the dangers of giving too much
censorship power to the State over materials intended for
young persons. See AAMA, 244 F.3d at 577 (“The murderous
fanaticism displayed by young German soldiers in World
War II, alumni of the Hitler Jugend, illustrates the danger
7
(...continued)
strate that it has a compelling interest in attaching criminal
penalties to video game expression that has such serious value for
minors.” The State has articulated its purpose in enacting the
statute—our compelling interest inquiry would focus on whether
that articulated purpose is “compelling,” but this question has
already been answered in the affirmative by the Supreme Court.
8
Hereinafter, “AAMA.”
Nos. 06-1012, 06-1048 & 06-1161 9
of allowing government to control the access of children to
information and opinion.”); see also Cinecom Theaters
Midwest States v. City of Ft. Wayne, 473 F.2d 1297, 1302
(7th Cir. 1973) (“[A] city may not, consonant with the First
Amendment, go beyond the limitations inherent in the
concept of variable obscenity in regulating the dissemina-
tion to juveniles of ‘objectionable’ material.”).
In AAMA, we concluded that the plaintiffs were entitled
to a preliminary injunction against a city ordinance that
restricted minors’ access to violent video games because the
city had failed to demonstrate a compelling interest. AAMA,
244 F.3d at 575-76. Here, the inquiry is different because
“violence and obscenity are distinct categories of objection-
able depiction,” subject to different constitutional inquiries.
Id. at 574. But the central holding of AAMA is an important
backdrop for this case. The State must recognize that the
question of a statute’s compliance with the First Amend-
ment does not end once it is determined that the free speech
rights of adults are unaffected.
None of the parties allege that the games affected by the
SEVGL are “obscene,” as that term is understood in the
parlance of constitutional law; the State rather contends
that the games are “indecent” and subject to appropriate
legislation limiting their distribution to minors. As in
Playboy, it is undisputed that the State has no power to
limit the sale of the games in question to adults. See
Playboy, 529 U.S. at 811. But the Supreme Court has
determined that, “because of its strong and abiding interest
in youth, a State may regulate the dissemination to juve-
niles of, and their access to, material objectionable as to
them, but which a State clearly could not regulate as to
adults.” Interstate Circuit, Inc. v. City of Dallas, 390 U.S.
676, 690 (1968). Thus, the State may regulate sexual
material that is “indecent” with respect to minors, even if
such material is not “obscene” under the Court’s formula-
tion for adults, if the State can demonstrate that the
10 Nos. 06-1012, 06-1048 & 06-1161
regulation in question is narrowly tailored to serve a
compelling government interest. See Sable, 492 U.S. at 126
(“The Government may, however, regulate the content of
constitutionally protected speech in order to promote a
compelling interest if it chooses the least restrictive
means.”).
In Ginsberg v. New York, 390 U.S. 629, 632-33 (1968), the
Court began to define the boundaries of the State’s ability
to regulate material intended for minors, as it upheld a
New York statute that criminalized the sale of certain
obscene materials to persons under the age of seventeen.
The language of the statute upheld in Ginsberg made
distribution criminal if the material “(i) predominantly
appeal[ed] to the prurient, shameful or morbid interest of
minors, and (ii) [wa]s patently offensive to prevailing
standards in the adult community as a whole with respect
to what is suitable material for minors, and (iii) [wa]s
utterly without redeeming social importance for minors.” Id.
The Court concluded that the protection of children’s
psychological health was a permissible basis for restricting
minors’ access to non-obscene, sexually-oriented material.
Id. at 633.
Five years after Ginsberg, the Court revisited the ques-
tion of the appropriate obscenity standard with regard to
material for adults. The Court held that a state’s ability to
criminalize the distribution of obscene materials only
extends to those which “taken as a whole, do not have
serious literary, artistic, political, or scientific value.” See
Miller v. California, 413 U.S. 15, 24 (1973).9 In so ruling,
9
The two other prongs of the Miller test for obscenity did not
substantially alter the Court’s prior jurisprudence, providing
specifically that material was obscene if “the average person,
applying contemporary community standards would find that the
work, taken as a whole, appeals to the prurient interest” and “the
work depicts or describes, in a patently offensive way, sexual
(continued...)
Nos. 06-1012, 06-1048 & 06-1161 11
the Court explicitly rejected and replaced the “utterly
without redeeming social importance” formulation that had
first been articulated in Memoirs v. Massachusetts, 383 U.S.
413 (1966). The Memoirs Court had articulated two other
prongs to its definition of obscenity—material was obscene
if “(a) the dominant theme of the material taken as a whole
appeals to a prurient interest in sex; [and] (b) the material
is patently offensive because it affronts contemporary
community standards relating to the description or repre-
sentation of sexual matters . . . .” Id. at 418. As is obvious,
the statute upheld in Ginsberg succeeded by appropriating
the exact language of Memoirs and appending the words
“for minors” to each prong of the test. Seemingly implicit
then in the Miller Court’s amendment of the Memoirs test
was that the test of “obscenity for minors,” or indecency,
was amended to include the requirement that the material
regulated “taken as a whole, do[es] not have serious
literary, artistic, political, or scientific value” for minors.
See Miller, 413 U.S. at 24.
But the Court has not made it so clear—none of its
subsequent decisions have explicitly stated that Miller’s
amendment of the Memoirs test also affected Ginsberg. See
Pacifica, 438 U.S. at 767 (“It is true that the obscenity
standard the Ginsberg Court adopted for such materials
was based on the then-applicable obscenity standard of
Roth . . . and Memoirs . . . and that ‘[w]e have not had
occasion to decide what effect Miller . . . will have on the
Ginsberg formulation.’ ”) (Brennan, J., dissenting) (quoting
Erznoznick, infra); Erznoznick v. City of Jacksonville, 422
U.S. 205, 214 n. 10 (1975) (“In Miller . . . we abandoned the
Roth-Memoirs test for judging obscenity with respect to
adults. We have not had occasion to decide what effect
9
(...continued)
conduct specifically defined by the applicable state law.” See
Miller, 413 U.S. at 24 (internal citation and quotation marks
omitted).
12 Nos. 06-1012, 06-1048 & 06-1161
Miller will have on the Ginsberg formulation.”); see also
ACLU v. Ashcroft, 322 F.3d 240, 246 (3d Cir. 2003) (explain-
ing that the legislative history of the Child Online Protec-
tion Act reveals that the Act’s “definition of the harmful to
minors test constitutes an attempt to fuse the standards
upheld by the Supreme Court in Ginsberg . . . and Miller”)
(internal quotation marks omitted), aff’d, 542 U.S. 656
(2004); cf. Virginia v. Am. Booksellers Ass’n, 484 U.S. 383,
387 (1988) (declining to invalidate a Virginia statute that
included a “harmful to minors” definition that was “a
modification of the Miller definition of obscenity, adapted
for juveniles” and certifying question of reach of statute to
Virginia Supreme Court).
It ultimately does not matter. Either Ginsberg or Miller
provides us with the third prong in an appropriate standard
for what material can be regulated in the manner of the
SEVGL. That is to say, somewhere between Ginsberg and
Miller we arrive at the basement for constitutionality of a
statute criminalizing the distribution of sexually oriented
materials to minors. Inexplicably, the State of Illinois chose
to ignore both Ginsberg’s and Miller’s third prongs in
creating the SEVGL’s definition of “sexually explicit.” The
State thereby simultaneously failed to narrowly tailor the
statute and created a statute that is unconstitutionally
overbroad. See Grayned v. City of Rockford, 408 U.S. 104,
114 (1972) (“A clear and precise enactment may neverthe-
less be ‘overbroad’ if in its reach it prohibits constitutionally
protected conduct.”).
The SEVGL’s “sexually explicit” definition is evidently
modeled after the first two prongs of the Ginsberg/Miller
test, but includes neither the “utterly without redeeming
social importance for minors” language of Ginsberg or the
“taken as a whole, do not have serious literary, artistic,
political, or scientific value” language of Miller. After Miller,
a number of statutes have been found unconstitutional that
included the Miller language or some hybrid of Miller and
Nos. 06-1012, 06-1048 & 06-1161 13
Ginsberg. See, e.g., Ashcroft v. ACLU, 542 U.S. 656, 662, 673
(2004) (finding federal statute that included language
“taken as a whole, lacks serious literary, artistic, political,
or scientific value for minors” insufficiently narrowly
tailored because less restrictive alternatives were avail-
able); see also Entm’t Software Ass’n v. Granholm,
404 F. Supp. 2d 978, 981 (E.D. Mich. 2005) (imposing
preliminary injunction against statute that included
language “[c]onsidered as a whole, lacks serious literary,
artistic, political, education, or scientific value for minors”
in its definition of implicated content because statute was
unlikely to survive strict scrutiny). But we are aware of no
criminal statutes that have been found to be narrowly
tailored in this context that did not at least attempt to
include some version of the third prong.10 Cf. Ashcroft, 542
U.S. at 679 (Breyer, J., dissenting) (describing the words
“lacks serious literary, artistic, political, or scientific value”
as “critical terms”).
10
The State cites Denver Area Educational Telecommunications
Consortium v. FCC as a case in which a regulation survived
constitutional inquiry despite lacking the third Miller prong. 518
U.S. 727, 752 (1996). But the regulation upheld in Denver Area
was not a penal statute; its function was simply to “permit a cable
system operator to prohibit the broadcasting of ‘programming’
that the ‘operator reasonably believes describes or depicts sexual
or excretory activities or organs in a patently offensive manner.’”
Id. at 732. Moreover, the portion of Denver Area that affirmed this
particular provision did not command a majority. See id. at 752
(plurality opinion). The Denver Area majority opinion found that
the “statute’s second provision significantly differs from the first,
for it does not simply permit, but rather requires, cable system
operators to restrict speech.” Id. at 753. The Court found this
second, restrictive provision to be unconstitutional since it was not
narrowly tailored to the recognized compelling interest of
“protection of children.” Id. at 755-56.
14 Nos. 06-1012, 06-1048 & 06-1161
Importantly, in failing to consider Miller, the drafters of
the SEVGL also neglected to include a requirement that
any work in question be considered “as a whole” in deter-
mining whether a defendant should be subject to criminal
penalties. While the Court has yet to explicitly fuse Miller
and Ginsberg, it seems clear to us that in so amending the
adult test for obscenity, the Court also intended to require
that the work be considered “as a whole” in the context of
statutes applicable to juveniles. See Miller, 413 U.S. at 24.
As Judge Kennelly correctly observed, this deficiency,
combined with the SEVGL’s lack of the third
Ginsberg/Miller prong, makes likely the prospect of criminal
prosecutions for the sale of games that are beyond the scope
of the State’s compelling interest—games that have “social
importance for minors.” Cf. Reno v. ACLU, 521 U.S. 844,
865-66 (1997).
The game God of War, discussed above and cited by the
district court, is illustrative of this point. Because the
SEVGL potentially criminalizes the sale of any game that
features exposed breasts, without concern for the game
considered in its entirety or for the game’s social value for
minors, distribution of God of War is potentially illegal, in
spite of the fact that the game tracks the Homeric epics in
content and theme. As we have suggested in the past, there
is serious reason to believe that a statute sweeps too
broadly when it prohibits a game that is essentially an
interactive, digital version of the Odyssey. Cf. AAM, 244
F.3d at 577 (“No doubt the City would concede this point if
the question were whether to forbid children to read
without the presence of an adult the Odyssey, with its
graphic descriptions of Odysseus’s grinding out the eye of
Polyphemus with a heated, sharpened stake. . .”). Similarly,
it seems unlikely that a statute is narrowly tailored to
achieving the stated compelling interest when it potentially
criminalizes distribution of works featuring only brief
flashes of nudity. See Erznoznick, 422 U.S. at 214 n. 10 (“It
Nos. 06-1012, 06-1048 & 06-1161 15
is clear, however, that under any test of obscenity as to
minors not all nudity would be proscribed. Rather, to be
obscene ‘such expression must be, in some significant way,
erotic.’ ”) (quoting Cohen v. California, 403 U.S. 15, 20
(1971)).
The possibility of such prosecution is far from illusory.
Illinois has created a statute which allows prosecution in
any of its counties solely on the basis of “contemporary
community standards” with regard to the lasciviousness of
any depiction of “post-pubescent female breasts.” 720 ILCS
5/12B-10(e). While Miller reaffirmed the “contemporary
community standards” test, the entire point of the Miller
third prong is to free individuals from the possibility of
prosecution solely on the basis of widely divergent local
standards. See Ashcroft, 535 U.S. at 579 (“[T]he serious
value requirement ‘allows appellate courts to impose some
limitations and regularity on the definition by setting, as a
matter of law, a national floor for socially redeeming value.’”)
(quoting Reno, 521 U.S. at 873). Indeed, in Reno, the
Supreme Court concluded that a significant deficiency of the
Communications Decency Act was its failure to include the
third Miller prong. See Reno, 521 U.S. at 873 (finding the
Miller third prong “particularly important because, unlike
the ‘patently offensive’ and ‘prurient interest’ criteria, it is
not judged by contemporary community standards”).11
These deficiencies are sufficient for this court to conclude
that the statute is not narrowly tailored and is overbroad.
It is unnecessary for the State to ban access to material
that has serious social value for minors to achieve its stated
purpose.
11
This portion of Reno addressed the ACLU’s argument that the
statute was unconstitutionally vague. The reasoning is equally
applicable to the narrow tailoring analysis.
16 Nos. 06-1012, 06-1048 & 06-1161
But even if we found no inherent problems in the
SEVGL’s “sexually explicit” definition, the statute could still
not survive strict scrutiny because the plaintiffs have
identified other less restrictive alternatives to the SEVGL.
Most obviously, the State could have simply passed legisla-
tion increasing awareness among parents of the voluntary
ESRB ratings system. Cf. 44 Liquormart, Inc. v. Rhode
Island, 517 U.S. 484, 507 (1996) (“It is perfectly obvious
that alternative forms of regulation that would not involve
any restriction on speech would be more likely to achieve
the State’s goal of promoting temperance . . . . educational
campaigns focused on the problems of excessive, or even
moderate, drinking might prove to be more effective.”);
Linmark Assocs., Inc. v. Willingboro Twp., 431 U.S. 85, 97
(1977) (suggesting that municipality, as an alternative to
speech restrictions, “continue ‘the process of education’ it
has already begun” through municipality-sponsored speech
targeted at raising awareness of municipality’s views on the
local housing market).
The Supreme Court has indicated that “[w]hen plaintiffs
challenge a content-based speech restriction, the burden is
on the Government to prove that the proposed alternatives
will not be as effective as the challenged statute.” Ashcroft,
542 U.S. at 665. The Government has not met this burden
with regard to this proposal. The district court relied on
evidence introduced at trial that, under the current volun-
tary ratings regime, parents are involved in eighty-three
percent of video game purchases for minors. The State has
not pointed to evidence to the contrary. If Illinois passed
legislation which increased awareness of the ESRB system,
perhaps through a wide media campaign, the already-high
rate of parental involvement could only rise. Nothing in the
record convinces us that this proposal would not be at least
as effective as the proposed speech restrictions. In short, the
SEVGL is overbroad, it is not narrowly tailored, and it
Nos. 06-1012, 06-1048 & 06-1161 17
cannot survive strict scrutiny.12
D. Constitutionality of the SEVGL’s Labeling, Bro-
chure and Signage Provisions
The State also appeals the district court’s ruling that the
SEVGL’s labeling, brochure and signage provisions consti-
tute compelled speech in violation of the First Amendment.
As the Supreme Court recently observed, some of its
“leading First Amendment precedents have established the
principle that freedom of speech prohibits the government
from telling people what they must say.” Rumsfeld v. Forum
for Academic and Institutional Rights, Inc., ___ U.S. ___,
126 S. Ct. 1297 (2006) (citing W. Va. Bd. of Educ. v.
Barnette, 319 U.S. 624, 642 (1943) and Wooley v. Maynard,
430 U.S. 705, 717 (1977)). The Court has stated that where
a statute “[m]andat[es] speech that a speaker would not
otherwise make,” that statute “necessarily alters the
content of the speech.” See Riley v. Nat’l Fed’n of the Blind
of N.C., Inc., 487 U.S. 781, 795 (1988). Moreover, “speech
does not lose its protection because of the corporate identity
of the speaker.” See Pacific Gas and Elec. Co. v. Pub. Util.
Comm’n, 475 U.S. 1, 16 (1986) (plurality opinion).
However, the First Amendment’s guarantee of freedom
from “compelled speech” is not absolute. Particularly in the
commercial arena, the Constitution permits the State to
require speakers to express certain messages without their
consent, the most prominent examples being warning and
nutritional information labels. See, e.g., Nat’l Elec. Mfrs.
Ass’n v. Sorrell, 272 F.3d 104, 114-16 (2d Cir. 2001) (reject-
ing First Amendment challenge to state requirement that
manufacturers include labeling warning consumers of
12
The district court included a discussion of whether the SEVGL
was unconstitutionally vague in its strict scrutiny discussion. We
feel it unnecessary to reach the vagueness question in this appeal.
18 Nos. 06-1012, 06-1048 & 06-1161
mercury content). The Court has allowed states to require
the inclusion of “purely factual and uncontroversial infor-
mation . . . . as long as disclosure requirements are reason-
ably related to the State’s interest in preventing deception
of consumers.” See Zauderer v. Office of Disciplinary
Counsel for Sup. Ct. of Ohio, 471 U.S. 626, 651 (1985)
(upholding State’s requirement that attorney include in
advertisements a disclosure that clients may be responsible
for costs of litigation).
The question that we must answer is whether the
SEVGL’s labeling and signage requirements are compelled
speech in violation of the Constitution or simply require-
ments of purely factual disclosures. The State argues that
all of these provisions are like the mercury disclosure
requirements in Sorrell. See Sorrell, 272 F.3d at 114. With
regard to the “18” sticker requirement, this argument seems
to be plainly unsound. The SEVGL requires that the “18”
sticker be placed on games that meet the statute’s definition
of “sexually explicit.” The State’s definition of this term is
far more opinion-based than the question of whether a
particular chemical is within any given product. Even if one
assumes that the State’s definition of “sexually explicit” is
precise, it is the State’s definition—the video game manu-
facturer or retailer may have an entirely different definition
of this term. Yet the requirement that the “18” sticker be
attached to all games meeting the State’s definition forces
the game-seller to include this non-factual information in
its message that is the game’s packaging. The sticker
ultimately communicates a subjective and highly controver-
sial message—that the game’s content is sexually explicit.
This is unlike a surgeon general’s warning of the carcino-
genic properties of cigarettes, the analogy the State at-
tempts to draw. For these reasons, we must apply strict
scrutiny to the SEVGL’s requirement that the “18” sticker
be placed on all covered video games.
Applying strict scrutiny, we cannot say that the “18”
sticker is narrowly tailored to the State’s goal of ensuring
Nos. 06-1012, 06-1048 & 06-1161 19
that parents are informed of the sexually explicit content in
games. As we described above, the State has not demon-
strated that it could not accomplish this goal with a broader
educational campaign about the ESRB system. Cf. Riley,
487 U.S. at 800 (requirement that professional fundraisers
disclose information about percentage of funds actually
turned over to charity in the prior year was not narrowly
tailored where “the State [could] itself publish the detailed
financial disclosure forms it requires professional
fundraisers to file”). Indeed, at four square inches, the “18”
sticker literally fails to be narrowly tailored—the sticker
covers a substantial portion of the box.13 The State has
failed to even explain why a smaller sticker would not
suffice. Certainly we would not condone a health depart-
ment’s requirement that half of the space on a restaurant
menu be consumed by the raw shellfish warning. Nor will
we condone the State’s unjustified requirement of the four
square-inch “18” sticker.
Similarly, we must conclude that the SEVGL’s signage
and brochure requirements are unconstitutional. Careful
consideration of what the signs and brochures are in fact
communicating reveals that the message is neither purely
factual nor uncontroversial. See Zauderer, 471 U.S. at 651.
The signs and the brochures are intended to commu-
nicate that any video games in the store can be properly
judged pursuant to the standards described in the ESRB
ratings. Moreover, the signs communicate endorsement of
ESRB, a non-governmental third party whose message may
be in conflict with that of any particular retailer. Requiring
a private party to give significant space to a third party
whose message potentially conflicts with the plaintiff’s was
the very Government action the Supreme Court found to be
unconstitutional in Pacific Gas and Electric. See Pacific Gas
13
The face of a standard DVD box (the most common format
for the games in question) is 7.5” by 5.5”.
20 Nos. 06-1012, 06-1048 & 06-1161
and Elec., 475 U.S. at 13-17 (invalidating a requirement
that utility company allow third party to include its news-
letter in the plaintiff utility company’s envelopes sent to
customers containing utility bill and company newsletter);
see also Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc., 515 U.S. 557, 566 (1995) (State could
not compel St. Patrick’s Day parade organizers to include
gay and lesbian group in parade because of the potential
conflict with the intended message of the protected expres-
sive activity). This is quite a different situation than the
Supreme Court’s most recent compelled speech case,
Rumsfeld v. FAIR, where the Court concluded that there
was no expressive activity threatened by simply allowing
the military equal recruiting access as other employers. See
FAIR, 126 S. Ct. at 1309-10. Here, the retailers affected by
the SEVGL have salespeople and their own information
that communicate messages about the relative value of
various games for buyers of different age groups. The State
cannot force them to potentially compromise this message
by inclusion of the ESRB ratings. The State is certainly
entitled to communicate the good news about the ESRB to
the public. Indeed, the plaintiffs’ proposed alternative to the
SEVGL, endorsed above, would involve a broad educational
campaign directed at the public about the ESRB system.
But the State goes too far in imposing criminal sanctions for
any retailer’s reticence at joining in communicating this
message.
We also note that the signage requirement is victim to the
same overreaching as the labeling requirement with regard
to the size of the prescribed sign. The SEVGL requires all
retailers to maintain three signs in the store —one within
five feet of the games, one at any existing information desk,
and one at the “point of purchase.” See ILCS 720 § 5B-30.
The signs must each have “dimensions of no less than 18 by
24 inches.” Id. Many video game stores are as small as one
room in an indoor mall. Little imagination is required to
Nos. 06-1012, 06-1048 & 06-1161 21
envision the spacing debacle that could accompany a small
retailer’s attempt to fit three signs, each roughly the size of
a large street sign, into such a space. We think that this
deficiency reflects the narrow tailoring failure of the entire
signage and brochure scheme, and we agree with the
district court that it is unconstitutional.
III. CONCLUSION
The judgment of the district court is AFFIRMED.
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—11-27-06