ORDER GRANTING PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION
[Re Docket No. 5, 27, 28, 41, 48]
Plaintiffs move for a preliminary injunction prohibiting California state and local officials from enforcing a recently passed law, effective January 1, 2006, which requires violent video games to be labeled and prohibits the rental or sale of those games to minors (“Act”). The Act includes a narrow definition of “violent video games,” requires specified labeling of such games and imposes a civil penalty of up to $1,000 for violations. For the reasons given below, the court grants the plaintiffs’ motion for a preliminary injunction.
I. BACKGROUND
The plaintiffs are the Video Software Dealers Association (“VSDA”) and the Entertainment Software Association (“ESA”), two groups whо describe themselves as associations of companies in the video game industry. The defendants are California Governor Arnold Schwarzenegger, California Attorney General Bill Lockyer, Santa Clara County District Attorney George Kennedy, Santa Clara County *1038 Counsel Ann Ravel, and San José City-Attorney Richard Doyle. Kennedy and Ravel (“County defendants”) joined the opposition filed by Schwarzenegger and Lockyer (“State defendants”), so the court can generally consider the defendants as a group for the purposes of the plaintiffs’ motion for a preliminary injunction. 1
On October 7, 2005, Schwarzenegger signed into law Assembly Bill 1179, which is to take effect on January 1, 2006, as new California Civil Code §§ 1746-1746.5. The Act will restrict the sale and rental of certain violent video games to minors. Id. § 1746.1(a). The Act contains a two-part definition of a “violent video game”:
(d)(1) “Violent video game” means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following:
(A) Comes within all of the following descriptions:
(i) A reasonable person, considering the game as a whole, would find appeals to a deviant or morbid interest of minors.
(ii) It is patently offensive to prevailing standards in the community as tо what is suitable for minors.
(iii) It causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors.
(B) Enables the player to virtually inflict serious injury upon images of human beings or characters with substantially human characteristics in a manner which is especially heinous, cruel, or depraved in that it involves torture or serious physical abuse to the victim.
(2) For purposes of this subdivision, the following definitions apply:
(A) “Cruel” means that the player intends to virtually inflict a high degree of pain by torture or serious physical abuse of the victim in addition to killing the victim.
(B) “Depraved” means that the player relishes the virtual killing or shows indifferеnce to the suffering of the victim, as evidenced by torture or serious physical abuse of the victim.
(C) “Heinous” means shockingly atrocious. For the killing depicted in a video game to be heinous, it must involve additional acts of torture or serious physical abuse of the victim as set apart from other killings.
(D) “Serious physical abuse” means a significant or considerable amount of injury or damage to the victim’s body which involves a substantial risk of death, unconsciousness, extreme physical pain, substantial disfigurement, or substantial impairment of the function of a bodily member, organ, or mental faculty. Serious physical abuse, unlike torture, does not require that thе victim be conscious of the abuse at the time it is inflicted. However, the player must specifically intend the abuse apart from the killing.
(E) “Torture” includes mental as well as physical abuse of the victim. In either ease, the virtual victim must be conscious of the abuse at the time it is inflicted; and the player must specifically intend to virtually inflict severe mental or physical pain or suffering upon the victim, apart from killing the victim.
(3) Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or de~ *1039 praved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needlеss mutilation of the victim’s body, and helplessness of the victim.
Id. § 1746(d).
On October 17, 2005, the plaintiffs filed a complaint, and two days later, a motion for a preliminary injunction, seeking to prevent enforcement of this new law. The plaintiffs claim the Act is unconstitutional and specifically assert that: (1) video games are a form of expression protected by the First Amendment of the U.S. Constitution, even for minors, (2) the Act’s definition of “violent video game” is unconstitutionally vague, and (3) the labeling provisions of the Act run afoul of the First Amendment. The State and County defendants assert that the Act is narrowly tailored to further a compelling state interest, and that it is neither impermissibly vaguе nor violative of the First Amendment.
California is not the first state to attempt to limit minors’ access to violent video games. While the Ninth Circuit has yet to consider the the legislature’s ability to implement such regulation, the Seventh and Eighth Circuits have found specific ordinances on the subject run afoul of the First Amendment.
See Am. Amusement Mach. Ass’n v. Kendrick,
II. ANALYSIS
A. Standard for Preliminary Injunction
The decision to grant a preliminary injunction is within the discretion of a district court.
United States v. Peninsula Communications, Inc.,
B. Analysis of Preliminary Injunction Factors
1. Likelihood of Success on the Merits
First, the court considers the plaintiffs’ claim that the Act is unconstitutionally *1040 vague, as an impermissibly vague definition of “violеnt video game” would leave nothing for the defendants to enforce and render the Act unconstitutional as a whole.
a. Vagueness
The plaintiffs claim the Act is unconstitutional because it is impermissibly vague. The Act’s definition of “violent video game” is a unique amalgam, but this alone does not make it unconstitutionally vague. Section 1746(d)(1)(A) is essentially the obscenity standard from
Ginsberg v. New York,
Although “we can never expect mathematical certainty from our language,” a restriction must be particularly clear if it “abuts upon sensitive areas of basic First Amendment freedoms.”
Grayned v. City of Rockford,
It is essential that legislation aimed at protecting children from allegedly harmful expression—no less than legislation enacted with respect to adults—be clearly drawn and that the standards adopted be reasonably precise sо that those who are governed by the law and those that administer it will understand its meaning and application.
Interstate Circuit, Inc. v. City of Dallas,
The plaintiffs’ primary argument here is that the Act’s definitions are ill-suited to a medium divorced from everyday reality. Video game characters can deviate from human norms to greater or lesser degrees, and the plaintiffs claim this makes the second prong of the definition, which refers to “images of human bеings or characters with substantially human characteristics,” impossible for a reasonable person to apply. However, the plaintiffs overlook the limitation contained in § 1746(d)(1) of the Act, which applies to both prongs of the definition: ‘“Violent video, game’ means a video game in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted in the game in a manner that does either of the following.” (emphasis added). The language with which plaintiffs take issue, “images of human beings or characters with substantially human characteristics,” thus only comes into play once the acts depicted have already been determined to be “killing, maiming, dismembering, or sexually assaulting an image of a human being.” *1041 This does make the phrase “upon images of human beings or characters with substantially human characteristics” in the second prong superfluous, but “assaulting an image of a human being” appears, nevertheless, to be the express requirement of the statute as written. Thus, the Act restricts only certain forms of violence against “an image of a human being;” there are no restrictions on violence against non-humans.
The plaintiffs also complain that “the Act generally uses the word ‘includes’ to modify the specifiс examples of behavior covered by the definition. This open-ended definition, say plaintiffs, does not confine the range of depictions that trigger the ‘violent video game label.’ ” Mot. at 17. Contrary to plaintiffs’ assertion, the Act uses “includes” only once, in § 1746(d)(2)(E): “ ‘Torture’ includes mental as well as physical abuse of the victim. In either case .... ” “Either,” according to WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY, means “being the one or the other of two.” Any open-end-edness introduced by “includes” is immediately limited by “either” in the next sentence. Torture, for the purposes of the Act, is either mental or physical abuse of a victim.
The Act also uses “include” once, in § 1746(d)(3): “Pertinent factors in determining whether a killing depicted in a video game is especially heinous, cruel, or depraved include infliction of gratuitous violence upon the victim beyond that necessary to commit the killing, needless mutilation of the victim’s body, and helplessness of the victim.” (emphasis added). While this does not limit what may be considered to determine whether a killing is “especially heinous, cruel, or depraved,” “heinous,” “cruel,” and “depraved” are each cabined by the definitions of those terms in § 1746(d)(2)(A)-(C).
The plaintiffs further object that other parts of the definition, such as “virtually inflict,” “consciousness” of the “virtual victim,” and “high degree of pain,” have no readily-ascertainable meaning in the context of a video game. While such semantic considerations do show the difficulty of using language with “mathematical certainty,” they do not show the Act is unconstitutionally vague. It should be readily apparent to an ordinary person that with such language the Act was intended to cover games in which it looks like a player can harm people in the ways described.
The parties submitted to the court video games and videotapes of video games being played. • See Jimenez Deck, Exs. A, B; Waldman Deck, Exs. A, B; Chan Deck, Exs. A, B; Carraway Deck, Exs. A, B; Borasi Deck, Exs. A, B; Rosen Deck, Exs. A, B; Morazzini Deck, Ex. A. Before oral argument, the court asked the parties to attempt to apply each prong of the Act’s definition of “violent video game” to seven of the games included in the parties’ submissions. The plaintiffs, somewhat predictably, claimed that the Act was too vague to hazard a guess as to which games were covered and which games were not. The defendants were not much more helpful. The State defendants asserted that Postal II would be covered by the Act. They also pointed out that another of the games was discussed in a declaration the plaintiffs submitted; one of the plaintiffs’ witnesses stated that Medal of Honor: Frontline “may” be covered by the Act. See Price Decl. ¶ 19.
Despite the parties’ reluctance to attempt to apply the Act’s definition of “violent video game” to the games submitted, the court will nonetheless analyze two of the games as part of its inquiry into whether the Act is impermissibly vague. As the following analyses show, the Act *1042 should be simple enough for an ordinary-person to apply to the games submitted to the court. 4
Postal II involves a character who has apparently “gone postal” and decided to kill everyone he encounters. Morazzini Deck, Ex. A. The game involves shooting both armed opponents, such as police officers, and unarmed people, such as schoolgirls. Id. Girls attacked with a shovel will beg for mercy; the player can be mercilеss and decapitate them. Id. People shot in the leg will fall down and crawl; the player can then pour gasoline over them, set them on fire, and urinate on them. Id- The player’s character makes sardonic comments during all this; for example, urinating on someone elicits the comment “Now the flowers will grow.” Id.
The court agrees with the State defendants that
Postal II
would fall within the Act’s definition of “violent video game”. First, “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” as required by § 1746(d). The game also meets both prongs of the definition (though either alone is sufficient). Shooting schoolgirls in the knee and then setting them afire appeаls to the deviant interests of minors, satisfying § 1746(d)(1)(A)(i). Whether something is “patently offensive” under community standards is a question of fact,
see Reno v. ACLU,
Conversely, Full Spectrum Warrior would not be a “violent video game” under thе Act. The player controls two four-man U.S. Army squads fighting in an Afghanistan-like urban environment. Carraway Decl., Exs. A, B. The squad members have personalities; they complain about their mission and use profanity when they come under heavy fire. Id. Careful planning is necessary to succeed; much of the game is spent using one squad to distract an enemy while the other squad circles around him to get a good shot.' Id. Enemies are usually shot at a distance, and they fall down bloodlessly when shot or killed with grenades. Id.
In Full Spectrum Warrior, “the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being,” as required by § 1746(d). However, it would be hard to say thаt U.S. military operations appeal to the deviant or morbid interests of minors. Also, the game has some political value. It thus does not satisfy the first part of the Act’s definition, § 1746(d)(1)(A). Also, there is no way to kill enemies that is especially heinous, cruel, or depraved; killings are generally at a distance and fairly impersonal. This does not satisfy the second part of the Act’s definition, § 1746(d)(1)(B).
The plaintiffs have not shown they are likely to succeed on them claim that the Act is unconstitutionally vague.
*1043 b. First Amendment
The court next considers the plaintiffs’ claim that the Act runs afoul of the First Amendment. Because the statutes and ordinances at issue in Kendrick, Interactive Digital, Blagojevich, and Granholm are not materially distinguishable frоm the Act, the court finds that the plaintiffs are likely to succeed on the merits or at least that serious questions are raised in this portion of their case.
i. Survey of Prior Cases
As several courts have recently considered to what extent the First Amendment allows governments to limit minors’ access to video game violence, the court will summarize the relevant cases.
In
Kendrick,
the Seventh Circuit reversed a district court’s denial of a preliminary injunction against enforcement of a city ordinance.
In
Interactive Digital,
the Eighth Circuit reversed a district court and ordered a permanent injunction against enforcement of a county ordinance that forbade anyone to “sell, rent, or make available graphically violent video games to minors.”
In
Maleng,
Chief Judge Robert S. Las-nik of the Western District of Washington ruled on cross-motions for summary judgment that a Washington state statute violated the First Amendment.
In
Granholm,
a district court preliminarily enjoined enforcement of a statute
*1044
that would prohibit distribution of certain violent video games to minors.
Finally, in
Blagojevich,
a district court permanently enjоined enforcement of an Illinois statute criminalizing the sale or rental of certain violent video games to minors, at 1057-58,
The court in
Blagojevich
also considered the constitutionality of a provision requiring violent games covered by the statute to bear a two-square-inch label stating “18”. Id. at 1057, 1081,
ii. The California Statute
The Act will regulate video games, which, even though mere entertainment, are nonetheless protected by the First Amendment.
See Interactive Digital,
*1045
As an initial matter, the parties dispute what analytical framework the court should use to evaluate the Act. The plaintiffs suggest that of
Brandenburg v. Ohio,
The defendants claim the Act should be analyzed using the Supreme Court’s decision in
Ginsberg v. New York,
“[h]armful to minors” [as] any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sadomasochistic abuse, when it:
(i) predominantly appeals to the prurient, shameful or morbid interest of minors, and
(ii) is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and
(iii) is utterly without redeeming social importance for minors.
Id.
at 646,
The defendants have been unable to explain why the deferential standard of Ginsberg should also be used to analyze California’s attempt to limit minors’ access to violent video games. At oral argument, the County defendants expressed the view that there are few constitutional boundaries to a state’s power to limit minors’ access to expression that the State can establish is harmful to minors. As examples, the County defеndants suggested that a state could regulate a minor’s access to games about embezzling, bomb building, and shoplifting, without violating the First Amendment, if a causal connection with harm to children could be established. No court has previously endorsed such a limited view- of minors’ First Amendment right. The prevailing -view, and the one this court will follow, is that limitations on a minor’s access to violent expression are subject to strict scrutiny. However, even under strict scrutiny analysis, a court must consider the potential harm to a child that is being addressed by any legislation that limits a child’s access to expression.
“Content-based regulations are presumptively invalid.”
R.A.V. v. City of St. Paul,
Also, a state “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”
Turner Broadcasting Sys., Inc. v. F.C.C.,
To be valid, the Act must pass muster under strict scrutiny. Whether, as the court in Kendrick indicated, the First Amendment may prevent a state from having a legitimate compelling interest in restricting the access of minors to violent video games, or, as the court in Blagoje-vich ruled, Anderson’s research is insufficient to show such a compelling interest, the plaintiffs have shown they are likely to succeed on the merits of their claim that the Act violates the First Amendment, or at least that serious questions are raised.
c. Labeling Requirement
In Central Hudson Gas & Electric v. Public Service Commission of *1047 New York, the Supreme Court explained the strength of the First Amendment in the commercial context:
For commercial speech [to be protected by the First Amendment,] it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.
The Act requires video games that meet its definition of “violent” to be labeled, on the front of the package, with a white “18” outlined in black and at least two inches square. § 1746.2. This provision is not unconstitutional, dеspite plaintiffs’ suggestion otherwise, merely because it conflicts with the industry’s voluntary ratings system. However, the Supreme Court has stated that “[a] court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act.”
United States v. Playboy Entm’t Group, Inc.,
2. Threat of Irreparable Injury
The Supreme Court has stated that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”
Elrod v. Burns,
3. Balance of Hardships
If this court does not preliminarily enjoin enforcement of the Act, the plaintiffs’ members will have to institute labeling and monitoring as mandated by the Act, which plаintiffs claim will infringe upon their members’ First Amendment rights, as well as the First Amendment rights of minors in California. It will also involve considerable expense to implement. If the court does preliminarily enjoin en *1048 forcement of the Act, the defendants will merely be delayed a short time in implementing the Act, if it is ultimately found to be constitutional. The court finds that the balance of hardships weighs in favor of the plaintiffs.
4. Public interest
There is a definite public interest in First Amendment freedoms, but this has been discussed already in the section on the plaintiffs’ likelihood of success on the merits. The defendants claim there is a substantial public interest in protecting minors from the psychological harms they clаim violent video games inflict. The public interest also would favor allowing the public’s elected officials legislate, as the public elected them to do. The public also has a strong interest in enjoying its First Amendment freedoms. This factor does not significantly weigh in favor of either side.
C. Conclusion
The plaintiffs have shown at least that serious questions are raised concerning the States’ ability to restrict minors’ First Amendment rights in connection with exposure to violent video games, including the question of whether there is a causal connection between access to such games and psychological or other harm to children. The balance of hardshiрs tips sharply in the plaintiffs’ favor as the potential infringement of First Amendment rights and the costs in time and expense of implementing the Act outweigh the potential harm of a short delay in the implementation of the Act, if ultimately held constitutional.
III. ORDER
For the foregoing reasons, the court grants the plaintiffs’ motion for a preliminary injunction. The defendants and their agents are hereby preliminarily enjoined from enforcing any provision of the Act (future California Civil Code §§ 1746-1746.5) until further order of this court.
Notes
. Two weeks late, City Attorney Doyle filed a motion joining in the State and County defendants’ oppositions. Doyle raises no new arguments and plaintiffs have not objectеd to his untimely joinder.
. The court notes that, as in the instant case, VSDA and ESA were plaintiffs in
Maleng, Blagojevich,
and
Granholm. Maleng,
. That there is case law on the meanings of these phrases, albeit in other contexts, makes it more likely that they define a standard that an ordinary person can understand and apply-
. The court has generally only considered the videotape evidence. However, two of the games, Jade Empire and Full Spectrum Warrior, were also played.
. Vikram David Amar, Alan Brownstein, Can States Constitutionally Regulate Video Games, As California Is Considering Doing?:The First Amendment Framework That Would. Probably Apply, FindLaw (Apr. 30, 2004) at http:// writ.news. findlaw.com/comment aiy/ 20040430 -brownstein. html.
.
Maleng,
. Mothers Against Violence in America, http://www.mavia.org.
. National Institute on Media and the Family, http://www.mediafamily.org.