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