CTA loses fight to ban ads for violent video games

By Melissa Birks

The Chicago Transit Authority must now accept advertisements for mature and adult-only rated video games. The change comes as a result of a preliminary injunction won last month on behalf of the Entertainment Software Association.

The issue was borne of a flap a couple of years ago when the CTA, in response to public complaints, took down advertisements for the game “Grand Theft Auto,” according to Paul M. Smith of Jenner & Block’s Washington D.C. office. Smith led the team that represented the Entertainment Software Association, the trade group for the video game industry.

After the CTA took down the “Grand Theft Auto” advertisements, the game’s manufacturers sued; there was a settlement that allowed the game to be advertised for an additional period of time, Smith said. That prompted the CTA to institute a policy prohibiting advertisements for games rated mature (M), described as suitable for ages 17 and older, and adult only (AO). “Grand Theft Auto” includes a series of popular games rated M due to their violence and sexual content.

In January 2009, the Entertainment Software Association filed a complaint, arguing that the CTA policy violated its members’ First Amendment rights.

“[The CTA] said it was because these games cause people to become violent. We’ve litigated this issue over and over, and the evidence is extremely weak on that,” said Smith, who added that the CTA policy on advertising is the first in the nation that the entertainment group has challenged.

Last month, the U.S. District Court for the Northern District of Illinois held that the CTA’s advertising guidelines likely restrict speech in a public forum that is otherwise open to all speakers. According to the order, “the CTA singled out for prohibition all advertising references to a solitary class of product — mature and adult video games — which (unlike alcohol and tobacco) are themselves protected speech and which are legal for people of all ages to purchase.”

The entertainment group’s argument was strengthened by  precedent set some 25 years ago, when the CTA and Planned Parenthood battled over Planned Parenthood’s request to advertise. The 7th US Circuit Court of Appeals determined then that the CTA is a “public forum.”

“They take ads from everybody else. Since there’s almost no other product they won’t advertise, it’s a public forum. You can’t just make exceptions…Video games have been held to be the equivalent of books and movies,” Smith said. “The only thing they won’t advertise are alcohol and cigarettes, which are illegal for some percentage of people, whereas M-rated games, people have a perfect constitutional right to buy.”

The CTA could still fight the injunction, Smith said, although “the judge’s opinion is pretty strong. There’s not a lot of leeway.”

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