Sexually Violent Person Video Game, Movie Ban Struck Down

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By Lance J. Rogers

Sept. 16 — A civil commitment facility must point to something more specific than “common sense” to justify making movies and video games with sexual or violent themes unavailable to a “sexually violent person,” the U.S. Court of Appeals for the Seventh Circuit ruled Sept. 14.

In an opinion by Judge Ilana Diamond Rovner, the court said that type of ban must be “rationally connected” to the state’s interests in security and the rehabilitation and treatment of sexually violent persons.

The directors' “bare assertion” that the restriction meets this standard as a matter of common sense falls short.

Violent Movies and Games

The district court granted summary judgment to the defendants, concluding that the ban—which included approximately 350 movies and 230 video games—was rationally linked to the institution's legitimate security and therapeutic concerns.

On appeal, Eugene Brown argued that the ban wasn't rational because the clinical staff at the Rushville Treatment and Detention Center never evaluated any individual to assess the effect of watching sex and violence and because the affidavits submitted to the district court relied on common sense instead of empirical data or research to support those conclusions. 

The Seventh Circuit agreed with Brown, vacated the summary judgment and remanded.

Under the test announced in Turner v. Safley, 482 U.S. 78 (1987), a state correctional institution may restrain a detainee's First Amendment rights, but only if it can show more than a “formalistic logical connection” between a restriction and its institutional objective, the court said. Applying that standard here, the court characterized the institution's evidence as “too feeble to justify the ban on movies and video games.”

Missing Link

The record, at least for now, doesn't adequately link the ban on media content with the institution's stated therapeutic and security goals, the court said.

It noted that it previously reached a similar conclusion in the context of sex offenders possessing “legal adult pornography.” Some empirical data is needed to connect the goal of reducing recidivism with the First Amendment restriction, it said.

According to the court, Rushville at first prohibited its residents from watching all R-rated movies or playing any M-rated video games. The facility softened its stance when Brown sued and developed a list of banned movies and games by having therapists review any movie or video game that was requested and then classifying it as too sexual or graphically violent.

Chief Judge Diane P. Wood and Judge Richard A. Posner joined the opinion.

The directors and therapists were represented by the Illinois Attorney General's Office, Chicago, and Heyl, Royster, Voelker & Allen, Peoria, Ill. Brown appeared pro se.

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: Tom P. Taylor at ttaylor@bna.com

Full text at http://www.bloomberglaw.com/public/document/EUGENE_BROWN_Plaintiff_Appellant_v_LARRY_J_PHILLIPS_et_al_Defenda.

 

‘IMPLIED NUDITY'

According to the court, “one movie titled Immortals, an action film about the Greek demi-god Theseus, was banned because, according to a therapist's review, the movie depicts a ‘[n]ude woman—seen from back and side, sex scenes (nothing is actually seen, but it is simulated), bare breasts[,] and implied sex' and ‘[s]trong bloody violence and [s]exuality.' ”