Florida judge gets tough on 'Bully'

Game maker Take-Two faces a court review of the prerelease game to see if it violates public nuisance laws. Images: 'Bully' in action

Declan McCullagh Former Senior Writer
Declan McCullagh is the chief political correspondent for CNET. You can e-mail him or follow him on Twitter as declanm. Declan previously was a reporter for Time and the Washington bureau chief for Wired and wrote the Taking Liberties section and Other People's Money column for CBS News' Web site.
Declan McCullagh
5 min read
A Florida judge has ordered the maker of "Grand Theft Auto" to hand over an unreleased video game set in a high school, a move that raises questions about the legal protections that games enjoy.

The judge is being asked to grant a partial injunction against sales of the forthcoming Take-Two Interactive Software game, called "Bully" and set at a fictional private school named Bullworth Academy. "Bully" is scheduled for release on Tuesday.

Ever since a landmark U.S. Supreme Court decision in 1931, the law has said that injunctions placed on material before publication run afoul of constitutional protections of freedom of speech. In a subsequent 1971 ruling, for instance, the justices warned that such an injunction "constitutes an impermissible restraint on First Amendment rights."

But in the Florida lawsuit, an anti-video game attorney named Jack Thompson is asking for precisely that. He filed a motion on Wednesday asking the court "to grant some relief to stop the witless, crass release of this game in five days."

First Amendment scholars are alarmed at Thompson's request, especially since Miami-Dade County Circuit Court Judge Ronald Friedman has decided to review the game to see how violent it is instead of dismissing the request out of hand.

"If it's not on the market yet, I find it hard to imagine a basis for the prepublication review of the game," said Robert Corn-Revere, a partner at law firm Davis Wright Tremaine in Washington, D.C. who has argued before the U.S. Supreme Court.

Thompson's lawsuit likens "Bully" to a "murder simulator," alleging it will teach minors about methods of bullying and school violence. He asks the court to declare the game a "public nuisance."

That echoes the arguments the Supreme Court heard in the 1931 Near v. Minnesota case, in which the justices invalidated a state law (and injunction) regulating "scandalous" news articles as a public nuisance, Corn-Revere said.

"To extend that (argument) to speech is saying that the speech offends you," he said. "That's not a valid regulation under the First Amendment."

Is "Bully" even violent?
Take-Two declined to comment. But its Web page for "Bully" says that players will be able to "stand up to bullies, get picked on by teachers, play pranks, win or lose the girl, and ultimately learn to navigate the obstacles of the worst school around, Bullworth Academy--a corrupt and crumbling prep school with an uptight facade." (The game will be available for the Sony?s PlayStation 2 console; the Microsoft Xbox version was canceled.)


Thompson could not be reached for comment on Thursday. But his legal filings argue that courts should assume the worst of "Bully"--which is being published by Take-Two's Rockstar Games subsidiary--because of the flap over Rockstar's "Grand Theft Auto" games. In July, the Federal Trade Commission and Take-Two came to a settlement over an investigation of inappropriate sexual content in "Grand Theft Auto: San Andreas."

That history, coupled with Take-Two's description of its game, already caused the Miami-Dade School District to pass a resolution condemning "Bully," and led politicians in the United Kingdom to suggest that it be banned.

Some reviewers who were given early copies of "Bully," however, have concluded it does the opposite of glorify violence. A review on Wired News says, "It turns out the game doesn't glorify bullying at all." Instead, the review says, the player's missions involve defending the helpless.

David Greene, director of the First Amendment Project, likened the current flap--over an unreleased video game that critics have not even seen--to film review boards. Decades ago, many state laws made it a criminal offense to show a motion picture that had not been submitted to a board for its review.

The Supreme Court struck down those requirements in a 1965 case called Freedman v. Maryland. Maryland's film board "fails to provide adequate safeguards against undue inhibition of protected expression, and this renders the requirement of prior submission of films to the board an invalid previous restraint," the justices concluded.

"It does really harken back to that," Greene said.

In the current view of the First Amendment's protections, Greene said, "you let the speech out there, and if it causes harm, you then decide whether you can restrict the speech or someone can be compensated for injury. What the First Amendment urges us to avoid is this idea of...saying that something can only be distributed with approval."

Struck down
Other courts that have recently considered state and municipal restrictions on video games have taken a dim view of those restrictive laws.

Probably the most influential opinion was written by libertarian-leaning judge Richard Posner of the 7th Circuit Court of Appeals, which struck down an Indianapolis law restricting minors' access to arcade games that might appeal to a "morbid" interest in violence.

"The common sense reaction to the Indianapolis ordinance could be overcome by social scientific evidence, but has not been," Posner wrote in 2001. "The ordinance curtails freedom of expression significantly and, on this record, without any offsetting justification."

Since then, other courts have struck down antigaming laws by adopting similar logic: Unless social science research can prove the games are actually harmful, the First Amendment's freedom of expression wins.

Missouri's St. Louis County enacted a law prohibiting anyone from selling, renting or making available "graphically violent" video games to minors without a parent's or guardian's consent. But the 8th Circuit Court of Appeals ruled (PDF here) that "before the county may constitutionally restrict the speech at issue here, the county must come forward with empirical support for its belief that 'violent' video games cause psychological harm to minors."

And in 2004, federal district judge in Washington state tossed out a law penalizing the distribution of games to minors in which harm may come to a "public law enforcement officer." The state of the research did not justify the ban, U.S. District Judge Robert Lasnik ruled (PDF here).

As for "Bully,? retailers Wal-Mart Stores and GameStop have also been named as defendants in the Florida lawsuit, filed in the 11th judicial circuit. A ruling regarding an injunction to halt sales of "Bully" is expected at any time.