Judges around the country generally haven't had much trouble in striking down laws that crack down on the sale of video games to minors. But a battle over a Minnesota statute has inspired some peculiar contortions by a federal appeals court judge.

Section 325I.06 of the Minnesota code bars minors from buying or renting video games rated “Mature” or “Adult Only.” In a March 17 decision, the 8th U.S. Circuit Court of Appeals concluded it was not narrowly tailored to address the state’s compelling interest in protecting children from psychological and moral harm resulting from their interaction with violent video games.

"[I]n light of the heightened standard of proof that Interactive Digital says must be applied, we conclude that the [state's] evidence falls short of establishing the statistical certainty of causation demanded thereby," Judge Roger L. Wollman wrote for the court in -– very reluctantly –- affirming a trial judge and finding the law unconstitutional.

In Interactive Digital Software Assn. v. St. Louis County, 329 F.3d 954 (2003), the 8th Circuit struck down a similar law. Wollman also said the state had failed, as Interactive Digital requires,

to come forth with incontrovertible proof of a causal relationship between the exposure to such violence and subsequent psychological dysfunction ... The requirement of such a high level of proof may reflect a refined estrangement from reality, but apply it we must.

The state has now filed a petition for en banc rehearing, arguing that “the entire Court should consider whether a heightened evidentiary standard should have been imposed in this case.” The correct test, it says, is "substantial evidence" and the panel's decision, if allowed to stand,

will jeopardize the efforts of state and local governments to enact reasonable restrictions on speech and expression designed to protect the psychological well-being of children.

What's peculiar here is that Interactive Digital says nothing about “incontrovertible proof” or “statistical certainty of causation.” It only requires that the state “come forward with empirical support for its belief that ‘violent’ video games cause psychological harm.”

But Wollman didn't just misstate the Interactive Digital standard; he also opined that “the State’s evidence provides substantial support for its contention that violent video games have a deleterious effect upon the psychological well-being of minors.”

Using the correct Interactive Digital test, the trial judge ruled that the state's evidence was “completely insufficient to demonstrate an empirical, causal link between video games and violence and minors." Wollman gives no indication of how he reached such a different conclusion.

What could Wollman possibly be up to? Given his obvious distaste for Interactive Digital, his opinion looks like a desperate –- and intellectually dishonest –- attempt to lay the groundwork for en banc review.

Neither Wollman nor the two other judges on the panel were involved in the Interactive Digital decision and only a federal appeals court en banc can overrule one of its own precedents.

By Matthew Heller
4/17/08