In the
United States Court of Appeals
For the Seventh Circuit

No. 00-3643

American Amusement Machine Association, et al.,

Plaintiffs-Appellants,

v.

Teri Kendrick, et al.,

Defendants-Appellees.



Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. IP00-1321-C H/G--David F. Hamilton, Judge.


Argued December 1, 2000--Decided March 23, 2001



 Before Posner, Diane P. Wood, and Williams, Circuit
Judges.

 Posner, Circuit Judge. The manufacturers of video
games and their trade association seek to enjoin,
as a violation of freedom of expression, the
enforcement of an Indianapolis ordinance that
seeks to limit the access of minors to video
games that depict violence. Denial of a
preliminary injunction has precipitated this
appeal.

 The ordinance defines the term "harmful to
minors" to mean "an amusement machine that
predominantly appeals to minors’ morbid interest
in violence or minors’ prurient interest in sex,
is patently offensive to prevailing standards in
the adult community as a whole with respect to
what is suitable material for persons under the
age of eighteen (18) years, lacks serious
literary, artistic, political or scientific value
as a whole for persons under" that age, and
contains either "graphic violence" or "strong
sexual content." "Graphic violence," which is all
that is involved in this case (so far as appears,
the plaintiffs do not manufacture, at least for
exhibition in game arcades and other public
places, video games that have "strong sexual
content"), is defined to mean "an amusement
machine’s visual depiction or representation of
realistic serious injury to a human or human-like
being where such serious injury includes
amputation, decapitation, dismemberment,
bloodshed, mutilation, maiming or disfiguration
[disfigurement]."

 The ordinance forbids any operator of five or
more video-game machines in one place to allow a
minor unaccompanied by a parent, guardian, or
other custodian to use "an amusement machine that
is harmful to minors," requires appropriate
warning signs, and requires that such machines be
separated by a partition from the other machines
in the location and that their viewing areas be
concealed from persons who are on the other side
of the partition. Operators of fewer than five
games in one location are subject to all but the
partitioning restriction. Monetary penalties, as
well as suspension and revocation of the right to
operate the machines, are specified as remedies
for violations of the ordinance.

 The ordinance was enacted in 2000, but has not
yet gone into effect, in part because we stayed
it pending the decision of the appeal. The
legislative history indicates that the City
believes that participation in violent video
games engenders violence on the part of the
players, at least when they are minors. The City
placed in evidence videotapes of several of the
games that it believes violate the ordinance.

 Although the district judge agreed with the
plaintiffs that video games, possibly including
some that would violate the ordinance, are
"speech" within the meaning of the First
Amendment and that children have rights under the
free-speech clause, he held that the ordinance
would violate the amendment only if the City
lacked "a reasonable basis for believing the
Ordinance would protect children from harm." He
found a reasonable basis in a pair of empirical
studies by psychologists which found that playing
a violent video game tends to make young persons
more aggressive in their attitudes and behavior,
and also in a larger literature finding that
violence in the media engenders aggressive
feelings. The judge also ruled that the
ordinance’s tracking of the conventional standard
for obscenity eliminated any concern that the
ordinance might be excessively vague.

 Having decided that the ordinance did not
violate the plaintiffs’ constitutional rights,
the district judge did not consider the other
criteria that might bear on the decision to grant
or deny a preliminary injunction. In this appeal
too, the parties argue only over whether the
ordinance is legal, tempting us to treat this as
if it were an appeal from a final judgment in
favor of the defendants. We shall consider at the
end of the opinion whether there is any occasion
for further proceedings in the district court.

 The ordinance brackets violence with sex, and
the City asks us to squeeze the provision on
violence into a familiar legal pigeonhole, that
of obscenity, which is normally concerned with
sex and is not protected by the First Amendment,
while the plaintiffs insist that since their
games are not obscene in the conventional sense
they must receive the full protection of the
First Amendment. Neither position is compelling.
Violence and obscenity are distinct categories of
objectionable depiction, Winters v. New York, 333
U.S. 507, 518-20 (1948); United States v. Thoma,
726 F.2d 1191, 1200 (7th Cir. 1984) ("depictions
of torture and deformation are not inherently
sexual and, absent some expert guidance as to how
such violence appeals to the prurient interest of
a deviant group, there is no basis upon which a
trier of fact could deem such material obscene");
State v. Johnson, 343 So. 2d 705, 709-10 (La.
1977), and so the fact that obscenity is excluded
from the protection of the principle that
government may not regulate the content of
expressive activity (as distinct from the time,
place, or manner of the activity) neither compels
nor forecloses a like exclusion of violent
imagery. This would be obvious if a pornographer
were to argue that because violence is "like"
obscenity yet has not yet been placed on the list
of expressive forms that can be regulated on the
basis of their content, see, e.g., R.A.V. v. City
of St. Paul, 505 U.S. 377, 382-84 (1992); DiMa
Corp. v. Town of Hallie, 185 F.3d 823, 827 (7th
Cir. 1999), obscenity should be struck from the
list.

 We shall discover some possible intersections
between the concerns that animate obscenity laws
and the concerns that animate the Indianapolis
ordinance as we proceed, but in general the
concerns are different. The main worry about
obscenity, the main reason for its proscription,
is not that it is harmful, which is the worry
behind the Indianapolis ordinance, but that it is
offensive. A work is classified as obscene not
upon proof that it is likely to affect anyone’s
conduct, but upon proof that it violates
community norms regarding the permissible scope
of depictions of sexual or sex-related activity.
Miller v. California, 413 U.S. 15, 24 (1973);
United States v. Moore, 215 F.3d 681, 686 (7th
Cir. 2000); United States v. Langford, 688 F.2d
1088, 1091 (7th Cir. 1982); United States v. Loy,
237 F.3d 251, 262 (3d Cir. 2001). Obscenity is to
many people disgusting, embarrassing, degrading,
disturbing, outrageous, and insulting, but it
generally is not believed to inflict temporal (as
distinct from spiritual) harm; or at least the
evidence that it does is not generally considered
as persuasive as the evidence that other speech
that can be regulated on the basis of its
content, such as threats of physical harm,
conspiratorial communications, incitements,
frauds, and libels and slanders, inflicts such
harm. There are people who believe that some
forms of graphically sexual expression, not
necessarily obscene in the conventional legal
sense, may incite men to commit rape, or to
disvalue women in the workplace or elsewhere,
see, e.g., Catharine A. MacKinnon, Only Words
(1993); but that is not the basis on which
obscenity has traditionally been punished. No
proof that obscenity is harmful is required
either to defend an obscenity statute against
being invalidated on constitutional grounds or to
uphold a prosecution for obscenity. Offensiveness
is the offense.

 One can imagine an ordinance directed at
depictions of violence because they, too, were
offensive. Maybe violent photographs of a person
being drawn and quartered could be suppressed as
disgusting, embarrassing, degrading, or
disturbing without proof that they are likely to
cause any of the viewers to commit a violent act.
They might even be described as "obscene," in the
same way that photographs of people defecating
might be, and in many obscenity statutes are,
included within the legal category of the
obscene, Miller v. California, supra, 413 U.S. at
25; Pope v. Illinois, 481 U.S. 497, 501 n. 4
(1987); United States v. Langford, supra, 688
F.2d at 1091 n. 3, even if they have nothing to
do with sex. In common speech, indeed, "obscene"
is often just a synonym for repulsive, with no
sexual overtones at all.

 But offensiveness is not the basis on which
Indianapolis seeks to regulate violent video
games. Nor could the ordinance be defended on
that basis. The most violent game in the record,
"The House of the Dead," depicts zombies being
killed flamboyantly, with much severing of limbs
and effusion of blood; but so stylized and
patently fictitious is the cartoon-like depiction
that no one would suppose it "obscene" in the
sense in which a photograph of a person being
decapitated might be described as "obscene." It
will not turn anyone’s stomach. The basis of the
ordinance, rather, is a belief that violent video
games cause temporal harm by engendering
aggressive attitudes and behavior, which might
lead to violence.

 This is a different concern from that which
animates the obscenity laws, though it does not
follow from this that government is helpless to
respond to the concern by regulating such games.
Protecting people from violence is at least as
hallowed a role for government as protecting
people from graphic sexual imagery. Chaplinsky v.
New Hampshire, 315 U.S. 568, 572-73 (1942),
permits punishment of "fighting words," that is,
words likely to cause a breach of the peace--
violence. See also R.A.V. v. City of St. Paul,
supra, 505 U.S. at 386, 391-92. Such punishment
is permissible "content based" regulation, and in
effect Indianapolis is arguing that violent video
games incite youthful players to breaches of the
peace. But this is to use the word "incitement"
metaphorically. As we’ll see, no showing has been
made that games of the sort found in the record
of this case have such an effect. Nor can such a
showing be dispensed with on the ground that
preventing violence is as canonical a role of
government as shielding people from graphic
sexual imagery. The issue in this case is not
violence as such, or directly; it is violent
images; and here the symmetry with obscenity
breaks down. Classic literature and art, and not
merely today’s popular culture, are saturated
with graphic scenes of violence, whether narrated
or pictorial. The notion of forbidding not
violence itself, but pictures of violence, is a
novelty, whereas concern with pictures of graphic
sexual conduct is of the essence of the
traditional concern with obscenity.

 There is a hint, though, that the City is also
concerned with the welfare of the game-playing
children themselves, and not just the welfare of
their potential victims. This concern is implicit
in the City’s citation of Ginsberg v. New York,
390 U.S. 629, 639-43 (1968), which holds that
potential harm to children’s ethical and
psychological development is a permissible ground
for trying to shield them from forms of sexual
expression that fall short of obscenity. See also
FCC v. Pacifica Foundation, 438 U.S. 726, 749-50
(1978). Ginsberg upheld a statute that forbade
any representation of nudity that "(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." 390 U.S. at 633. In the present setting,
concern with the welfare of the child might take
two forms. One is a concern with the potential
psychological harm to children of being exposed
to violent images, and would be unrelated to the
broader societal concern with violence that was
the primary motivation for the ordinance.
Another, subtler concern would be with the
consequences for the child incited or predisposed
to commit violent acts by exposure to violent
images. In Hoctor v. U.S. Dept. of Agriculture,
82 F.3d 165, 168 (7th Cir. 1996), we noted that
the Animal Welfare Act requires secure
containment of dangerous animals in part because
if they escape and injure a human being they are
likely to be killed. A child who is caught and
punished for committing a violent act suffers,
much as his victim does--indeed, one purpose of
punishment is to inflict on the criminal
suffering commensurate with that of his victims,
either to deter him or others from committing
such crimes or (in retributive theory) because it
is considered just that he should suffer as his
victims do. Obscenity statutes, too, might be
thought concerned not just with offensiveness, or
with third-party effects (the thrust of the
Indianapolis pornography ordinance, a precursor
of the present ordinance, invalidated in American
Booksellers Association, Inc. v. Hudnut, 771 F.2d
323 (7th Cir. 1985), aff’d without opinion, 475
U.S. 1001 (1986)), but also with the potential
harm to the consumer of obscenity, especially a
child who might be disturbed by graphic sexual
images or suffer psychological harm--and thus
Ginsberg. See also Osborne v. Ohio, 495 U.S.103,
111 (1990).
 If the community ceased to find obscenity
offensive, yet sought to retain the prohibition
of it on the ground that it incited its consumers
to commit crimes or to engage in sexual
discrimination, or that it interfered with the
normal sexual development of its underage
consumers, a state would have to present a
compelling basis for believing that these were
harms actually caused by obscenity and not
pretexts for regulation on grounds not authorized
by the First Amendment. The Court in Ginsberg was
satisfied that New York had sufficient grounds
for thinking that representations of nudity that
would not constitute obscenity if the consumers
were adults were harmful to children. We must
consider whether the City of Indianapolis has
equivalent grounds for thinking that violent
video games cause harm either to the game players
or (the point the City stresses) the public at
large.

 The grounds must be compelling and not merely
plausible. Children have First Amendment rights.
Erznoznik v. City of Jacksonville, 422 U.S. 205,
212-14 (1975); Tinker v. Des Moines Independent
School District, 393 U.S. 503, 511-14 (1969).
This is not merely a matter of pressing the First
Amendment to a dryly logical extreme. The
murderous fanaticism displayed by young German
soldiers in World War II, alumni of the Hitler
Jugend, illustrates the danger of allowing
government to control the access of children to
information and opinion. Now that eighteen-year-
olds have the right to vote, it is obvious that
they must be allowed the freedom to form their
political views on the basis of uncensored speech
before they turn eighteen, so that their minds
are not a blank when they first exercise the
franchise. And since an eighteen-year-old’s right
to vote is a right personal to him rather than a
right to be exercised on his behalf by his
parents, the right of parents to enlist the aid
of the state to shield their children from ideas
of which the parents disapprove cannot be plenary
either. People are unlikely to become well-
functioning, independent-minded adults and
responsible citizens if they are raised in an
intellectual bubble.

 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, killing the
suitors, and hanging the treacherous
maidservants; or The Divine Comedy with its
graphic descriptions of the tortures of the
damned; or War and Peace with its graphic
descriptions of execution by firing squad, death
in childbirth, and death from war wounds. Or if
the question were whether to ban the stories of
Edgar Allen Poe, or the famous horror movies made
from the classic novels of Mary Wollstonecraft
Shelley (Frankenstein) and Bram Stoker (Dracula).
Violence has always been and remains a central
interest of humankind and a recurrent, even
obsessive theme of culture both high and low. It
engages the interest of children from an early
age, as anyone familiar with the classic fairy
tales collected by Grimm, Andersen, and Perrault
are aware. To shield children right up to the age
of 18 from exposure to violent descriptions and
images would not only be quixotic, but deforming;
it would leave them unequipped to cope with the
world as we know it.

 Maybe video games are different. They are, after
all, interactive. But this point is superficial,
in fact erroneous. All literature (here broadly
defined to include movies, television, and the
other photographic media, and popular as well as
highbrow literature) is interactive; the better
it is, the more interactive. Literature when it
is successful draws the reader into the story,
makes him identify with the characters, invites
him to judge them and quarrel with them, to
experience their joys and sufferings as the
reader’s own. Protests from readers caused
Dickens to revise Great Expectations to give it a
happy ending, and tourists visit sites in Dublin
and its environs in which the fictitious events
of Ulysses are imagined to have occurred. The
cult of Sherlock Holmes is well known.

Most of the video games in the record of this
case, games that the City believes violate its
ordinances, are stories. Take once again "The
House of the Dead." The player is armed with a
gun--most fortunately, because he is being
assailed by a seemingly unending succession of
hideous axe-wielding zombies, the living dead
conjured back to life by voodoo. The zombies have
already knocked down and wounded several people,
who are pleading pitiably for help; and one of
the player’s duties is to protect those
unfortunates from renewed assaults by the
zombies. His main task, however, is self-defense.
Zombies are supernatural beings, therefore
difficult to kill. Repeated shots are necessary
to stop them as they rush headlong toward the
player. He must not only be alert to the
appearance of zombies from any quarter; he must
be assiduous about reloading his gun
periodically, lest he be overwhelmed by the rush
of the zombies when his gun is empty.

 Self-defense, protection of others, dread of the
"undead," fighting against overwhelming odds--
these are all age-old themes of literature, and
ones particularly appealing to the young. "The
House of the Dead" is not distinguished
literature. Neither, perhaps, is "The Night of
the Living Dead," George A. Romero’s famous
zombie movie that was doubtless the inspiration
for "The House of the Dead." Some games, such as
"Dungeons and Dragons," have achieved cult
status; although it seems unlikely, some of these
games, perhaps including some that are as violent
as those in the record, will become cultural
icons. We are in the world of kids’ popular
culture. But it is not lightly to be suppressed.

 Although violent video games appeal primarily to
boys, the record contains, surprisingly, a
feminist violent video game, "Ultimate Mortal
Kombat 3." A man and a woman are dressed in
vaguely medieval costumes, and wield huge swords.
The woman is very tall, very fierce, and wields
her sword effortlessly. The man and the woman
duel, and the man is killed. Another man appears-
-he is killed too. The woman wins all the duels.
She is as strong as the men, she is more
skillful, more determined, and she does not
flinch at the sight of blood. Of course, her
success depends on the player’s skill, and the
fact that the player, whether male or female, has
chosen to be the female fighter. (The player
chooses which fighter to be.) But the game is
feminist in depicting a woman as fully capable of
holding her own in violent combat with heavily
armed men. It thus has a message, even an
"ideology," just as books and movies do.

 We are not persuaded by the City’s argument that
whatever contribution to the marketplace of ideas
and expression the games in the record may have
the potential to make is secured by the right of
the parent (or guardian, or custodian--and does
that include a babysitter?) to permit his or her
child or ward to play these games. The right is
to a considerable extent illusory. The parent is
not permitted to give blanket consent, but must
accompany the child to the game room. Many
parents are too busy to accompany their child to
a game room; most teenagers would be deterred
from playing these games if they had to be
accompanied by mom; even parents who think
violent video games harmful or even edifying
(some parents want their kids to develop a
shooter’s reflexes) may rather prevent their
children from playing these games than incur the
time and other costs of accompanying the children
to the game room; and conditioning a minor’s
First Amendment rights on parental consent of
this nature is a curtailment of those rights.

 The City rightly does not rest on "what everyone
knows" about the harm inflicted by violent video
games. These games with their cartoon characters
and stylized mayhem are continuous with an age-
old children’s literature on violent themes. The
exposure of children to the "girlie" magazines
involved in the Ginsberg case was not. It seemed
obvious to the Supreme Court that these magazines
were an adult invasion of children’s culture and
parental prerogatives. No such argument is
available here. The City instead appeals to
social science to establish that games such as
"The House of the Dead" and "Ultimate Mortal
Kombat 3," games culturally isomorphic with (and
often derivative from) movies aimed at the same
under-18 crowd, are dangerous to public safety.
The social science evidence on which the City
relies consists primarily of the pair of
psychological studies that we mentioned earlier,
which are reported in Craig A. Anderson & Karen
E. Dill, "Personality Processes and Individual
Differences--Video Games and Aggressive Thoughts,
Feelings, and Behavior in the Laboratory and in
Life," 78 J. Personality & Soc. Psych. 772
(2000). Those studies do not support the
ordinance. There is no indication that the games
used in the studies are similar to those in the
record of this case or to other games likely to
be marketed in game arcades in Indianapolis. The
studies do not find that video games have ever
caused anyone to commit a violent act, as opposed
to feeling aggressive, or have caused the average
level of violence to increase anywhere. And they
do not suggest that it is the interactive
character of the games, as opposed to the
violence of the images in them, that is the cause
of the aggressive feelings. The studies thus are
not evidence that violent video games are any
more harmful to the consumer or to the public
safety than violent movies or other violent, but
passive, entertainments. It is highly unlikely
that they are more harmful, because "passive"
entertainment aspires to be interactive too and
often succeeds. When Dirty Harry or some other
avenging hero kills off a string of villains, the
audience is expected to identify with him, to
revel in his success, to feel their own finger on
the trigger. It is conceivable that pushing a
button or manipulating a toggle stick engenders
an even deeper surge of aggressive joy, but of
that there is no evidence at all.

 We can imagine the City’s arguing that it would
like to ban violent movies too, but that either
this is infeasible or the City has to start
somewhere and should not be discouraged from
experimenting. Experimentation should indeed not
be discouraged. But the City makes neither
argument. Its only expressed concern is with
video games, in fact only video games in game
arcades, movie-theater lobbies, and hotel game
rooms. It doesn’t even argue that the addition of
violent video games to violent movies and
television in the cultural menu of Indianapolis
youth significantly increases whatever dangers
media depictions of violence pose to healthy
character formation or peaceable, law-abiding
behavior. Violent video games played in public
places are a tiny fraction of the media violence
to which modern American children are exposed.
Tiny--and judging from the record of this case
not very violent compared to what is available to
children on television and in movie theaters
today. The characters in the video games in the
record are cartoon characters, that is, animated
drawings. No one would mistake them for
photographs of real people--another difference
between this case and Ginsberg. The idea that a
child’s interest in such fantasy mayhem is
"morbid"--that any kid who enjoys playing "The
House of the Dead" or "Ultimate Mortal Kombat 3"
should be dragged off to a psychiatrist--gains no
support from anything that has been cited to us
in defense of the ordinance.

 Ginsberg did not insist on social scientific
evidence that quasi-obscene images are harmful to
children. The Court, as we have noted, thought
this a matter of common sense. It was in 1968; it
may not be today; but that is not our case. We
are not concerned with the part of the
Indianapolis ordinance that concerns sexually
graphic expression. The video games at issue in
this case do not involve sex, but instead a
children’s world of violent adventures. Common
sense says that the City’s claim of harm to its
citizens from these games is implausible, at best
wildly speculative. Common sense is sometimes
another word for prejudice, and the common sense
reaction to the Indianapolis ordinance could be
overcome by social scientific evidence, but has
not been. The ordinance curtails freedom of
expression significantly and, on this record,
without any offsetting justification,
"compelling" or otherwise.

 It is conceivable though unlikely that in a
plenary trial the City can establish the legality
of the ordinance. We need not speculate on what
evidence might be offered, or, if none is offered
(in which event a permanent injunction should
promptly be entered), what amendments might bring
the ordinance into conformity with First
Amendment principles. We have emphasized the
"literary" character of the games in the record
and the unrealistic appearance of their "graphic"
violence. If the games used actors and simulated
real death and mutilation convincingly, or if the
games lacked any story line and were merely
animated shooting galleries (as several of the
games in the record appear to be), a more
narrowly drawn ordinance might survive a
constitutional challenge.

 That we need not decide today. The plaintiffs
are entitled to a preliminary injunction. Not
only have they shown a strong likelihood of
ultimate victory should the City persist with the
case; they will suffer irreparable harm if the
ordinance is permitted to go into effect, because
compliance with it will impose costs on them of
altering their facilities and will also cause
them to lose revenue. And given the entirely
conjectural nature of the benefits of the
ordinance to the people of Indianapolis, the harm
of a preliminary injunction to the City must be
reckoned slight, and outweighed by the harm that
denying the injunction would impose on the
plaintiffs. The judgment is therefore reversed,
and the case remanded with instructions to enter
a preliminary injunction.

Reversed and Remanded, with Instructions.
