Judge: Subway system can't ban violent-game ads

Is a public-transportation system allowed to turn away ads for all "mature" and "adult" video games? An Illinois court that has been grappling with that question says no--at least for now.

Since July, the Entertainment Software Association, an organization that represents the video game industry, has been embroiled in a lawsuit with the Chicago Transit Authority over the display of ads for violent video games on buses, subways, and other places where the CTA operates. The CTA contends that those ads have no business near its patrons. The ESA says the ban is unconstitutional.

Judge Rebecca R. Pallmeyer of the Northern District Court of Illinois granted the game group a preliminary injunction on Thursday, allowing violent ads to be placed within the CTA's operational control. Judge Pallmeyer said her concerns were rooted in the U.S. Constitution.

"The advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns," Pallmeyer wrote in her ruling.

"In an effort to avoid public controversy and to protect its riders from the effects of their own private choices, 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 forms of protected speech and which are legal for people of all ages to purchase," Judge Pallmeyer continued. "While the CTA would likely be entitled to enforce such a ban, were it serving solely as the proprietor of its own non-public-forum property, it cannot do so in a forum that this circuit has explicitly found to be a designated public forum for free expression."

A similar issue between the CTA and Grand Theft Auto publisher Take-Two Interactive erupted in 2008, when the CTA removed all GTA IV ads from its buses and display places. The parties eventually settled, resulting in Take-Two being allowed to display GTA ads for six weeks.

The ESA's battle with the CTA started in January of last year, when the transportation authority's Ordinance 008-147 took effect. That ordinance prohibited advertising that "markets or identifies a video or computer game rated 'Mature 17+' (M) or 'Adults Only 18+' (AO)." It was a direct response to the aforementioned GTA IV ads.

For its part, the ESA has said the ordinance "restricts speech in a public forum that is otherwise open to all speakers without a compelling interest for doing so." The ESA is also concerned that the ordinance "discriminates on the basis of viewpoint and ignores less restrictive means of achieving the supposed ends of the ordinance."

"This ruling is a win for Chicago's citizens, the video game industry and, above all, the First Amendment," Michael D. Gallagher, president and CEO of the ESA, said in a statement. "It is our hope that the CTA sees the futility of pursuing this case further. To do so will waste taxpayer money and government resources. Chicago deserves better, and we look forward to bringing this matter to an end."

The CTA disagrees. A spokesperson wrote in an e-mail that "the CTA disagrees with the decision to issue a preliminary injunction against the enforcement of CTA's ordinance barring the advertisement of "M-" and "AO-" rated video games. The CTA is currently reviewing the court's analysis, as well as its options for moving forward."