Entertainment Software Ass'n v. Blagojevich, 06-1012.

469 F.3d 641

ENTERTAINMENT SOFTWARE ASSOCIATION, et al., Plaintiffs-Appellees, v. Rod R. BLAGOJEVICH., Governor, et al., Defendants-Appellants.

No. 06-1012.

No. 06-1048.

No. 06-1161.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2006.

Decided November 27, 2006.

Paul M. Smith (argued), Jenner & Block, Washington, DC, for Plaintiffs-Appellees.

Patrick E. Deady, Hogan Marren Incorporated, Chicago, IL, for Defendant-Appellant, Rod. R. Blagojevich.

Gary S. Feinerman (argued), Michael J. Kasper, Office of the Attorney General, Chicago, IL, for Defendant-Appellant, Lisa Madigan.

Stephen L. Garcia, Office of the Cook County State's Attorney, Chicago, IL, for Defendant-Appellant, Richard A. Divine.

Michael A. Bamberger, Sonnenschein, Nath & Rosenthal, New York, NY, for Amicus Curiae.

Before BAUER, ROVNER, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

In this appeal, we must determine whether the State of Illinois has gone too far in its attempt to protect minors from the allegedly dangerous impact of certain video games. The plaintiffs, associations representing video game manufacturers and retailers, successfully challenged the constitutionality of the Illinois Sexually Explicit Video Game Law in the district court. The State now appeals the district court's imposition of a permanent injunction against enforcement of the law. Primarily because we conclude that the Sexually Explicit Video Game Law is not sufficiently narrowly tailored, we affirm the judgment of the district court.

I. BACKGROUND

On July 25, 2005, the State of Illinois enacted Public Act 94-0315. The Act is comprised primarily of the Violent Video Game Law ("VVGL") and the Sexually Explicit Video Game Law ("SEVGL"). The SEVGL requires video game retailers to place a four square-inch label with the numerals "18" on any "sexually explicit" video game. See 720 ILCS § 5/12B-25(a). It also requires them to place a sign in their stores explaining the video game rating system and to provide customers with brochures about the video game rating system. See 720 ILCS §§ 5/12B-30(a), 35(a). Most significantly, the SEVGL criminalizes the sale or rental of sexually explicit video games to minors. See 720 ILCS § 5/12B-15. The statute imposes criminal penalties on any "person who sells, rents, or permits to be sold or rented, any sexually explicit video game to any minor ...." Id.

The SEVGL defines "sexually explicit" video games as:

[T]hose that the average person, applying contemporary community standards would find, with respect to minors, is designed to appeal or pander to the prurient interest and depict or represent in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act or a lewd exhibition of the genitals or post-pubescent female breast.

720 ILCS 5/12B-10(e).

The day after enactment, the plaintiffs filed suit in the United States District Court for the Northern District of Illinois, facially challenging the constitutionality of both the VVGL and the SEVGL. The plaintiffs are associations representing video game manufacturers and retailers. The defendants are the Governor of Illinois, the Illinois Attorney General, and the State's Attorney for Cook County (collectively, "the State").¹ The plaintiffs are all participants in the video game industry's ratings system—the Entertainment Software Rating Board ("ESRB"), which rates games on the basis of the maturity/age for which the game is appropriate.² At the outset of the litigation the plaintiffs moved for a preliminary injunction and the defendants moved to dismiss. The motion to dismiss was denied. The district court stayed consideration of the motion for a preliminary injunction and held a three-day trial. Relevant to the SEVGL, during the trial, the State introduced screen shots from three games: (1) Grand Theft Auto: San Andreas, (2) Leisure Suit Larry: Magna Cum Laude, and (3) The Guy Game: Uncut and Uncensored. Parts of these games feature various images that the State alleges are covered by the law, ranging from digital drawings of exposed breasts to digital animations of sex acts. The plaintiffs introduced the game God of War, a game which takes place in ancient Greece and roughly tracks Homeric themes, as evidence of a benign game which was unconstitutionally criminalized by the law. In God of War, a single scene depicts two bare-chested women in Ancient Greece. The plaintiffs allege that the scene featuring the bare-chested women is critical to the game as it marks the point at which the character rejects the temptations of the physical realm to focus on his mission.

At the conclusion of the trial, Judge Kennelly applied strict scrutiny to the statutes and found for the plaintiffs, concluding that both the VVGL and the SEVGL were unconstitutional.³ Specifically, the court concluded that the SEVGL was not narrowly tailored and that the SEVGL's brochure, labeling and signage provisions constituted "compelled speech" in violation of the First Amendment. The court also found that sovereign immunity did not bar suit against the Attorney General in this case.⁴ The State now appeals only the district court's rulings pertaining to the SEVGL.

II. DISCUSSION

A. Standard of Review

We review de novo the district court's legal determinations that the Attorney General is not entitled to dismissal on the basis of sovereign immunity and that the SEVGL is unconstitutional. See Anderson v. Milwaukee County, 433 F.3d 975, 978 (7th Cir.2006); Nelson v. La Crosse County Dist. Atty., 301 F.3d 820, 825 (7th Cir.2002). We defer to the district court's factual findings after a full bench trial unless they are clearly erroneous. See Gaffney v. Riverboat Servs. of Ind., 451 F.3d 424, 447 (7th Cir.2006).

B. Sovereign Immunity

The Attorney General challenges the district court's ruling that she is not immune from suit pursuant to the Eleventh Amendment of the United States Constitution. The Supreme Court has authorized suits against state officials in their official capacities when plaintiffs seek to enjoin allegedly unconstitutionally statutes. See Ex parte Young, 209 U.S. 123, 157, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The Court held in Ex parte Young that:

In making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party.

Id. The Attorney General argues that the plaintiffs have only established a "general connection" between her duties and powers and the SEVGL but not the specific connection necessary to overcome sovereign immunity. She argues that her primary duties do not involve the prosecution of ordinary criminal cases (as a prosecution under the SEVGL would be), but only in criminal appeals.

We are unconvinced by this argument. The Attorney General concedes that she has the power to enforce the SEVGL; the power is simply concurrent with that of the State's Attorney. This satisfies the "some connection" requirement of Ex parte Young. See In re Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 373 (2d Cir.2005) ("Under Ex parte Young, the state officer against whom a suit is brought must have some connection with the enforcement of the act .... [i]t is not necessary that the officer's enforcement duties be noted in the act.") (internal quotation marks and citation omitted); Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 919-20 (9th Cir. 2004) ("some connection" requirement satisfied where Attorney General had concurrent power with county prosecutors to enforce abortion-related parental notification statute); cf. Citizens for Equal Protection v. Bruning, 455 F.3d 859, 864 (8th Cir. 2006) (no Eleventh Amendment immunity where the Attorney General had "some connection" to enforcement of Nebraska Constitution Amendment that prohibited same sex marriage).

The Attorney General's reliance on our decision in Sherman v. Community Consolidated School District 21 of Wheeling Township⁵ is misplaced. In Sherman, we concluded that the Attorney General was immune from suit in a challenge to an Illinois statute which required recitation of the Pledge of Allegiance. See id. at 441. But the statute in Sherman had no enforcement provisions or penalty clauses. Id. Involvement of the Attorney General was highly improbable because he had no authority to prosecute the plaintiff under the statute. That is not the situation in this case.

Moreover, the Supreme Court has instructed us that, "[i]n determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment bar to suit, a court need only conduct a `straightforward inquiry into whether the complaint alleges an ongoing violation of federal law and seeks relief properly characterized as prospective.'" Verizon Md., Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (quoting Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296, 117 S.Ct. 2028, 138 L.Ed.2d 438 (1997)) (brackets omitted). Such an inquiry leads us to the conclusion that the Attorney General is not immune. We therefore affirm the district court's sovereign immunity ruling.

C. Constitutionality of the SEVGL's Sale and Rental Provisons

The plaintiffs argue that the sale and rental provisions of the SEVGL facially violate the First and Fourteenth Amendments of the United States Constitution. As the State concedes, the SEVGL is a content-based restriction on speech, and we must employ strict scrutiny in assessing its constitutionality.⁶ See United States v. Playboy Entm't. Group, 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); FCC v. Pacifica, 438 U.S. 726, 751, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). To survive strict scrutiny,...