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Gamers 1; Illinois 0 -- Illinois Video Game Legislation Is Unconstitutional; Pool Table Manufacturer Scratches On Arbitration Argument
March 13, 2007
GAMERS 1; ILLINOIS 0 -- ILLINOIS VIDEO GAME LEGISLATION IS UNCONSTITUTIONALThe United States Court of Appeals for the Seventh Circuit recently struck down an Illinois law that would make it a crime to distribute "sexually explicit" video games to minors. The Court considered the law “overly broad”, because the law would sweep under its provisions games that have social value.
The Seventh Circuit case considered the Illinois Sexually Explicit Video Game Law. That law required retailers to place a four square inch label marked "18" on any "sexually explicit" game. Retailers that sold or rented a labeled game to a minor could be prosecuted under the law.
Under the statute, "sexually explicit" video games are those that appeal to the "prurient interest" and depict actual or simulated sexual contact in a "patently offensive" manner as evaluated through the lens of "contemporary community standards." (this is the legal way of saying “dirty”).
The problem that the appellate court identified with the statute, was that it failed to consider the overall context of the game. Obscenity law generally requires that the court determine if the work, as a whole, is “utterly without redeeming social importance for minors." The appellate court felt that, without this analysis, otherwise appropriate games could be swept under the statute improperly. As an example, the court pointed to the game God of War. That game tracks the adventures of Homer's Odyssey. It includes one scene that features bare-chested women in ancient Greece, a scene that the video game industry argued was essential to the story because it marks the point where the character rejects the temptations of the physical world. By failing to consider the game "as a whole," the law restricts games that might otherwise have artistic, political, educational, literary, or scientific value for minors in violation of their First Amendment rights, the court concluded. It noted, "Illinois has gone too far in its attempt to protect minors from the allegedly dangerous impact of certain video games."
Illinois joins a number of states that have failed to pass video game laws that meet constitutional review. Apparently, the risk that these games will turn our kids’ brains into a collective pile of mush is an insufficient rationale for legislation. Too bad!
POOL TABLE MANUFACTURER SCRATCHES ON ARBITRATION ARGUMENT
When two parties agree to a binding arbitration provision in connection with a contract for e-commerce merchandising, that arbitration provision does not apply to prior dealings between the same parties related to a separate transaction.
As a result, the United States Court of Appeals for the Eighth Circuit upheld the trial court, which had refused to compel arbitration for a dispute arising wholly out of the previous transaction.
AMF, the pool table manufacturer, originally entered an oral agreement with Suburban, an entertainment furniture distributor, granting Suburban the right to use the AMF mark and logo in Suburban's St. Louis area franchise stores.
Some time later, AMF and Suburban entered a written contract providing that Suburban would deliver and install AMF products sold through the AMF Web site. The written agreement included an arbitration provision that required all disputes be heard in Richmond, Virginia.
Some time after that, AMF terminated the oral trademark agreement, and Suburban cued up a lawsuit (you had to see that coming). Relying on the written agreement, AMF sought an order compelling arbitration in Virginia. It contended that the written agreement controlled all dealings between AMF and Suburban, due to “merger” language in the written agreement, which stated that the written agreement superseded all prior agreements between the parties. Neither the trial court nor the appellate court bought that argument.
The court found that the previous oral contract addressed a completely separate aspect of the parties’ relationship, and did not seek to contradict or supplement the subsequent written agreement. As a result, under the "collateral contract" doctrine, the oral agreement was an “independent agreement” and not subject to the written “merger” provision.
In short, chalk one up for the oral agreement.
This Newsletter is a periodic publication of Graydon Head & Ritchey LLP and should not be construed as legal advice or legal opinion on any specific facts or circumstances. The contents are intended for general information purposes only, and you are urged to consult your own advisor concerning your situation and any specific legal question you may have.