The members of Media Coalition believe that Florida Senate Bill 730 violates First Amendment rights of adults and minors for numerous reasons. The members of The Media Coalition represent most of the publishers, booksellers, librarians, periodical distributors, recording, movie and video game manufacturers, and recording and video retailers in Florida and the rest of the United States. They have asked me to explain their concern.

S.B. 730 would make it a felony to sell or rent an "adult video game" to anyone under the age of 21. An "adult video game" is defined as any game that contains representations or images of criminal activity or excessive violence, nudity or sexual conduct that is harmful to persons younger than 21. Anyone selling or renting an "adult video game" must request proof of age from any buyer or renter.

The Supreme Court has clearly stated that an adult’s access to First Amendment protected speech may be restricted only in very specific, narrow circumstances. In Miller v. California, 413 U.S. 15 (1973), the court established a three-part test to determine if material is legally obscene and, therefore, does not merit First Amendment protection. The Supreme Court limited the application of the Miller test to a very limited amount of sexually explicit material. S.B. 730 would restrict adults’ access to a great deal of material without the application of any part of the test promulgated in Miller Certainly this will prevent adults from buying or renting material they have a First Amendment right to possess.

While sexually explicit material is subject to the Miller test for obscenity, S.B. 730 would define many video games as "adult video games" solely for criminal activity or violent content. However, violent content or criminal activity in otherwise constitutionally protected material is not a permissible subject of government regulation with respect to adults or minors. Every court that has addressed this issue has held that violent content, including criminal activity, without exception, is constitutionally protected speech. American Amusement Machine Ass’n v. Kendrick, 244 F.3d 572 (7^th Cir. 2001), cert. den. 70 USLW 3162 (Oct. 29, 2001) enjoined enforcement of a city ordinance that limited minors’ access to violent video games. Davis-Kidd Booksellers, Inc. v. McWherter, 886 S.W. 2d 705 (Tenn. 1993) struck down a restriction on the sale to minors of material containing "excess violence." Video Software Dealers Assn. v. Webster, 968 F.2d 684 (8^th Cir. 1992) held that "unlike obscenity, violent expression is protected by the First Amendment." Eclipse Enterprise, Inc. v. Gulotta, 134 F.3d 63 (2d Cir. 1997) found unconstitutional a county ordinance barring the sale to minors of trading cards that depict or describe "heinous crimes" in Nassau County, New York. State

v. Johnson, 343 So. 2d 705, 710 (La. 1977) declared that prohibiting the sale of violent materials to minors exceeded the limits placed on regulation of obscene materials by the U.S. Supreme Court. Sovereign News Co. v. Falke, 448 F. Supp. 306, 400 (N.D. Ohio 1977), while remanded on other grounds, overturned a statute defining as "harmful to minors" material describing or representing "extreme or bizarre violence."

Finally, while minors do not enjoy the protection of the First Amendment to the same extent as adults, the U.S. Supreme Court has ruled 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 material to them." Erznoznick v. City of Jacksonville, 422 U.S. 212-13 (1975). In the case of Ginsberg v. New York, 390 U.S. 629 (1968), the U.S. Supreme Court established a three-part test for determining whether material is "harmful to minors" and may, therefore, be banned for sale or rental to minors. A statute deeming a video game to be an "adult video game" is not an inappropriate basis for assuming that it meets the Ginsberg test. In fact, it is likely that none of the violent or criminal activity content and that very little of the sexually explicit content would be deemed an "adult video game," would not meet the Ginsberg test for harmfulness. Therefore, a law imposing a fine or prison sentence for the sale or rental of such material would inevitably prevent minors from purchasing or renting games that they have a First Amendment right to possess.

Passage of S.B. 730 could prove costly. If a court declares it unconstitutional, there is a good possibility that the state will be ordered to pay the attorneys' fees of the parties who challenged the law. In the above mentioned A.A.M.A. v. Kendrick, the state payed more than $315,000 in legal fees to plaintiffs’ counsel and another $400,000 to their own lawyers to bring the case.