January 23, 200

Re: House Bill 2363

Dear Representative,

The members of Media Coalition believe that Washington House Bill 2363 violates First Amendment rights of minors. 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 Washington and the rest of the United States. They have asked me to explain their concern.

H.B. 2363 would make it a misdemeanor to sell or rent any "violent video" to anyone under 18 years old. A "violent video" is defined as any video that contains realistic or photographic-like depictions of aggressive conflict in which the player kills, injures or otherwise causes violence to a human form, depicted, by dress or other recognizable symbols, as a public law enforcement officer and is rated "mature" or "adults only" by a video game manufacturer or industry.

While voluntary ratings exist to help parents determine what is appropriate for their children, government enforcement of an existing rating system is impermissible. Courts in nine different states have ruled it unconstitutional either to enforce the Motion Picture Association of America’s rating system or financially punish a movie that carries specific rating designations. MPAA v. Specter, 315 F.Supp. 824 (E.D. Pa. 1970), enjoined enforcement of Pennsylvania statute that penalized exhibitors showing movies unsuitable for family or children viewing, as determined by CARA ratings. In Eastern Federal Corporation v. Wasson, 316 S.E. 2d 373 (S.C. 1984), the court ruled that a tax of 20% on all admissions to view movies rated either "X" or unrated was an unconstitutional delegation of legislative power to a private trade association. See also, Swope v. Lubbers, 560 F.Supp.1328 (W.B. Mich, S.D. 1983) (use of M.P.A.A. ratings was improper as a criteria for determination of constitutional protection), Drive-In Theater v. Huskey, 435 F.Sd 228 (4^th Cir. 1970) (sheriff enjoined from prosecuting exhibitors for obscenity based on "R" or "X" rating).

Further, when these ratings are applied to violent content the problem created by government ratings is compounded. Violent content in otherwise constitutionally protected material is not a permissible subject of government regulation. Every court that has addressed this issue has held that violent content, 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." 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 to minors. The mere presence of an "adult" rating alerting parents that a video game might be inappropriate for minors is no basis for assuming that the material meets the Ginsberg test. In fact, it is likely that most rated material would not meet the Ginsberg test for harmfulness. Therefore, a law imposing a fine for the sale or rental of such material would inevitably prevent minors from purchasing works that they have a First Amendment right to possess.

Passage of H.B. 2363 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 case the state agreed to pay more than $300,000 in attorneys' fees.

Please protect the First Amendment and reject H.B. 2363.

Sincerely yours,

David Horowitz

Executive Director