Entertainment Software Ass’n v. Granholm

Citation: Entertainment Software Ass’n v. Granholm, 2005 WL 3008584 (E.D. Mich. 2005); later decision, 2006 WL 901711 (E.D. Mich. 2006).

Factual Background
Members of the Entertainment Software Association (ESA) manufacture and distribute videogames. In September 2005, Michigan enacted a law that made it illegal to distribute “ultra-violent” videogames that are harmful to children without parental consent. The Act defined ultra-violent as “continual and repetitive depictions of physical violence against human beings.” And whether a videogame harmed children was to be determined under an indecency-like standard. Violators of the Act were subject to civil and criminal penalties.

The ESA, along with the Video Software Dealers Association and the Michigan’s Retailers Association, filed suit to enjoin the enforcement of the Act alleging that it violated the First Amendment.

Preliminary Injunction Proceedings
In response to ESA’s motion for a preliminary injunction, Judge George Caram Steeth concluded that the loss of First Amendment freedoms “unquestionably constitutes” irreparable injury and that ESA’s success on the merits was likely. The Act was a content-based speech regulation, and the judge reviewed it under First Amendment strict scrutiny. Legislative findings did not justify “the singling out of video games from other media,” and the judge was doubtful that the Legislative findings demonstrated a compelling state interest in the prevention of the perceived harm caused by violent videogames. Nor was Judge Steeth persuaded that the Act was narrowly tailored, since it would have had a chilling effect both on “adults’ expression as well as expression that is fully protected as to minors.”

As a result Judge Steeth granted ESA’s motion for preliminary injunction and enjoined enforcement of the Act.

Motion for Summary Judgment
In response to the Association’ motion for summary judgment, federal District Judge George Steeh held that the Michigan statute violates the First Amendment. So he converted his earlier preliminary injunction into a permanent injunction.