A visually impaired gamer has brought a lawsuit against Sony Entertainment claiming violations of the Americans with Disabilities Act (ADA) for failure to make its video games and online video games accessible to differently-abled players. Regardless of the merits of this claim, Sony is seeking the enforcement of an arbitration clause in the Terms of Service of its game to bar this claim from being brought to court. The plaintiff argues that this clause is unenforceable and that his motion for a jury trial should be granted.

Under the Sony Terms of Service all claims against the company by users must be submitted to binding arbitration. A similar clause was challenged for the virtual world Second Life in Bragg v. Linden Research in 2007. A contract clause is generally upheld regardless of whether the parties have had an opportunity to discuss or negotiate the language as long as the clause is not so one-sided as to be oppressive. While not held to be oppressive,the clause in Second Life’s Terms of Service was stricken as unenforceable because while there were other virtual worlds for Bragg to play, the court agreed with him that they were not “reasonable” alternatives.The reason for this determination is that Second Life allows its users to retain intellectual property ownership in their online creations, which at the time was a policy completely unique to Second Life. In the present case the plaintiff did not present an argument that he didn’t have any reesonable alternatives to Sony’s game(s), to the contrary, his complaint lists several games and virtual worlds that offer accommodations similar to the ones he is seeking. For this reason, and because his complaint does not sufficiently allege unenforceability, it is unlikely that the court will grant plaintiff’s motion for a jury trial.

Video Software Dealers Association v. Schwarzenegger, 2009 U.S. App. LEXIS 3598 (February 20, 2009).

California Civil Code §§ 1746-1746.5 states that “[a] person may not sell or rent a video game that has been labeled as a violent video game to a minor,” and carries a civil penalty of up to $1000.  The Act also imposes a labeling requirement that all “violent video games” imported into or distributed in California be “labeled with a solid white ‘18’ outlined in black,” which shall appear on the front face of the game’s package and be “no less than 2 inches by 2 inches” in size.

In 2005, before the Act took effect, the plaintiffs filed suit for declaratory relief on the grounds that the Act violated the First and Fourteenth Amendments, and the District Court granted a preliminary injunction.  In 2007 the court granted plaintiffs’ motion for summary judgment invalidating the Act under strict scrutiny.  Most recently in February 2009, the United States Court of Appeals for the Ninth Circuit affirmed the District Court’s grant of summary judgment finding the Act to be invalid, lacking the support of a compelling state interest and not narrowly tailored to the stated interest of the legislature.  The labeling requirement was similarly struck down as constitutionally invalid compelled speech.

Severability

The State conceded on appeal that the definition of “violent video game” provided by the Act is unconstitutional because “it does not provide an exception for material that might have some redeeming value to minors,” but argued the continued validity of the Act based on a severability clause.  The court agreed with the State and held that the invalid definition could be stricken as grammatically and functionally separable.

Level of Scrutiny

Content-based regulations are presumptively invalid and subject to strict scrutiny.  If less restrictive means for achieving a state’s compelling interest are available, they must be used.  While the State did not argue with the classification of the Act as content based, it argued that under the circumstances the court should apply the Ginsberg[1] “variable obscenity” or “obscenity as to minors” standard.

The Supreme Court has stated that “minors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them.”[2] The court in the present case declined to expand the Ginsberg standard to regulations concerning violence.  The Ginsberg Court’s own limiting language restricted its holding to cases involving sexually explicit material, which it held to be a sub-category of obscenity rather than a new category of non-protected material.  Obscenity jurisprudence deals almost exclusively with sexually explicit material and has not previously been expanded to violent materials.

Ultimately the court held that the proper standard of review was strict scrutiny and called upon the State to justify the Act with its compelling state interest(s).

Compelling Interest

The stated compelling interests of the State in passing the Act were (1) preventing violent, aggressive, and antisocial behavior; and (2) preventing psychological or neurological harm to minors who play violent video games.  The State later confined its interest to the well-being of the players; however, it was still unable to present persuasive authority showing a causal connection between violent video games and the harm contemplated in passing the Act.  The studies cited by the State to support its argument showed only corollary relationships at best and admitted to their own insufficient sample size.  Several of the studies were not even conducted for the proposition for which they were offered by the State.  Based on a lack of support the Court deemed that the Act did not serve the interest provided by the State.

Narrowly Tailored

Even if the Act were shown to be motivated by a compelling State interest it would still be required to be proven to be narrowly tailored and the least restrictive means of effecting the State’s purpose.  The Court did not believe the Act was narrowly tailored to the State’s interest and cited the possibility of less restrictive programs, namely expansions of the current voluntary industry rating system and increased educations of players and their parents.

Labeling Requirement

While the Court has upheld commercially compelled speech where the state required inclusion of “purely factual and uncontroversial information”[3] in advertising, the ruling that the Act was constitutionally invalid negated the argument that the contents of the label were purely factual information.

[2] Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975).

[3] Zanderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)