Full opinion text
ENTRY ON MOTION FOR PRELIMINARY INJUNCTION HAMILTON, District Judge. Introduction and Summary ' The First Amendment does not prohibit states from restricting children’s access to pornography even though adults’ access to the same sexually explicit materials may not be restricted. See Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). This case presents questions about the extension of this rule of First Amendment law to video games with images of graphic violence. Indianapolis General Ordinance No. 72-2000 restricts the display and operation of coin-operated amusement machines (primarily video games) deemed “harmful to minors” if they include either “strong sexual content” or “graphic violence,” as those terms are defined more specifically in the Ordinance. Under the Ordinance, children may not play or watch such games without a parent’s permission. ' Plaintiffs are in the business of manufacturing, distributing, or displaying video games. They have no quarrel with the Ordinance’s restriction on children’s access to games with “strong sexual content.” Plaintiffs contend, however, that the Ordinance’s restrictions on games with “graphic violence” are content-based restrictions on speech that violate the First Amendment and that the Ordinance is unconstitutionally vague. Plaintiffs seek preliminary injunctive relief against its enforcement. The first issue here is whether violent video games are forms of expression protected by the First Amendment at all. At this preliminary injunction stage of the case, the court concludes that at least some video games are expression entitled to First Amendment protection. The second broad issue is whether a local government may restrict children’s access to games with graphic violence, just as Ginsberg shows a government may restrict access to games with explicit sexual content. The court finds for several reasons that plaintiffs are unlikely to show that the Ordinance’s restrictions on children’s access to games with graphic violence violate the First Amendment.' First, the City has shown that it has important and legitimate reasons to be concerned about violent video games causing harm to children. Second, the court is not persuaded there is any principled constitutional difference between sexually explicit material and graphic violence, at least when it comes to providing such material to children. Third, the Ordinance is carefully tailored to address the potential harm to children without infringing upon other First Amendment interests. The Ordinance does not bar or significantly limit adults from using the games in question, it does not engage in viewpoint discrimination, it does not limit the expression of ideas or other messages, and it authorizes only civil enforcement mechanisms. In short, the Ordinance reflects a careful, reasonable, and limited extension of the principles applied in Ginsberg to protect children from pornography. The court also finds that ¡plaintiffs are unlikely to prevail on their vagueness challenge to the Ordinance. The court therefore denies plaintiffs’ motion for preliminary injunction. This entry sets forth the court’s findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52 and 65. Factual Background I. The Ordinance On July 10, 2000, the City-County Council of the City of Indianapolis and Marion County adopted General Ordinance No. 72 regarding the operation and display of currency-operated amusement machines (“video games”). The Ordinance restricts children’s access to video games containing graphic violence or strong sexual content by regulating the establishments that offer video games to the public. For constitutional purposes,' the most important parts of the Ordinance are the definitions for games that are “harmful to minors.” Those definitions trigger the substantive prohibitions of the Ordinance on the display of such games: Harmful to minors means an amusement machine that predominantly appeals to minors’ morbid interest in violence or minors’ prurient interest in* sex, is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for persons under the age of eighteen (18) years, lacks serious literary, artistic, political or scientific value as a whole for persons under the age of eighteen (18) years, and: (1) Contains graphic violence; or (2) Contains strong sexual content. Graphic violence means an amusement machine’s visual depiction or representation of realistic serious injury to a human or human-like being where such serious injury includes amputation, decapitation, dismemberment, bloodshed, mutilation, maiming or disfiguration. Strong sexual content means the visual depiction or representation by an amusement machine of nudity or explicit human sexual behavior by any human or human-like being in one or more of the following forms: masturbation; deviate sexual conduct; sexual intercourse; or, fondling of genitals. Nudity means an amusement machine’s visual depiction or representation of human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or of a female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state. City-County General Ordinance No. 72-2000, amending Revised Code of the Consolidated City of Indianapolis and Marion County § 831-1. For purposes of the Ordinance, a minor is any unemancipated person under the age of 18. Id. Section 831-5 of the City’s Code, as amended by the Ordinance, sets forth the substantive prohibitions that apply to “registrants,” who operate five or more video games in one location: (h) It shall be unlawful for a registrant, a registrant’s agent, or an employee of an amusement location knowingly to allow a minor who is not accompanied by the minor’s parent, guardian or custodian to operate in the amusement location an amusement machine that is harmful to minors. (i) It shall be unlawful for a registrant to operate an amusement location unless each amusement machine that is harmful to minors in the amusement location displays a conspicuous sign indicating that the machine may not be operated by a minor under eighteen (18) years of age unless the minor is accompanied by his or her parent, guardian, or custodian. If amusement machines that are harmful to minors are displayed together in an area separate from amusement machines that are not harmful, a single conspicuous sign in that area or at the entrance to that area may be used to mark the group of machines for purposes of this subsection. (j)It shall be unlawful for a registrant to make available to patrons any amusement machine that is harmful to minors within ten (10) feet of an amusement machine that is not harmful. It shall further be unlawful for a registrant not to separate amusement machines that are harmful to minors from other machines by some form of partition, divider, drape, barrier, panel, screen, or wall that completely obstructs the view of persons outside the partitioned area of the playing surface or display screen of the machines that are harmful to minors. It shall be unlawful for a registrant, registrant’s agent, or employee of an amusement location to allow a minor who is not accompanied by his or her parent, guardian, or custodian into the partitioned area. Violations of the Ordinance are punishable by civil fines under Section 103-3 of the Code. The minimum fine for a violation is $200. No more than one violation may be assessed on any one day. For multiple violations, a registrant or exhibitor may lose the right to make available to the public any machines that are “harmful to minors.” The City may also suspend or revoke an amusement location’s registration in some circumstances. See §§ 831-5(k)-(i), 831-60), 831-9. The record includes an unusually extensive legislative history for a local ordinance. Councillor Rozelle Boyd introduced an early version of the Ordinance to the City-County Council on April 10, 2000, which was referred to the Rules and Public Policy Committee. Ex. P-61. At two meetings the Committee debated the pro-posai and heard extensive public comment from industry representatives and community interest groups. Exs. P-51, P-52. In addition, several reports on the subject of children and violence in the media were made available to the Committee members. Ex. P-64. In response to comments on the original proposal, the Committee made several substantive changes and sent the amended proposal to the full City-County Council. Ex. P-52. The Council passed the Ordinance on July 10, 2000, and the Mayor of Indianapolis signed the legislation on July 17, 2000. Ex. P-53. The preamble to the Ordinance invokes the City’s “compelling interests in protecting the well-being of minors, in protecting parents’ authority to shield their minor children from influences that the parents find inappropriate or offensive, and in reducing juvenile crime.” The preamble then sets forth the need for and purpose of the Ordinance by: (1) noting that “courts have recognized that minors are affected by and may be protected from patently offensive sex-related material;” (2) asserting that “recent academic literature corroborates the finding of earlier studies that violent video games produce psychological effects in minor children and that prolonged exposure to violent video games increases the likelihood of aggression in minor children,” citing a particular study that also reviewed past research; (3) referring to “growing evidence of the harmful effects of violent video games” that had led Congress and the Federal Trade Commission to investigate such matters; (4) citing testimony before a congressional committee to the effect that fourth through eighth graders report spending an average of from half an hour to two and a half hours a week playing video games in arcades; and (5) asserting that parents are less able in public places than in the home to control the levels of violence and sexual content to which their children are exposed. II. Evidence about Video Games Coin-operated video games are an interactive form of entertainment. Each game is usually a stand-alone, self-contained machine consisting of both hardware and software. The player manipulates manual controls, such as guns, buttons, joy sticks, or steering wheels, in order to affect an imaginary computer-generated action sequence displayed on a screen. In the City’s live demonstration at the hearing, the player participated in the action as a sniper firing an electronic rifle at “enemies” in a game called “Silent Scope 2.” In a game called “Mortal Kombat 3,” the player controlled a martial arts fighter engaged in combat against computer-eon-trolled opponents. The record identifies six commonly recognized categories of video games: “action-adventure” games, puzzle games, sports games, driving games, fighting games, and shooting games. The categories are convenient but not exhaustive or mutually exclusive. Nearly all games contain some sort of scoring mechanism by which a player can measure his or her progress in the game and compare his or her playing skills to the skills of others. In a fighting game, the player might score points based on the time it takes to defeat an opponent or the difficulty level of the fighting match. In an action-adventure game, a player might score points by accomplishing a certain set of tasks in the face of various obstacles. At the hearing on plaintiffs’ motion for a preliminary injunction, an art director from a video game development company described the typical game development process. As one might imagine, a new video game begins as a creative concept in the minds of the game developers. Teams of artists draw sketches of the characters and create “story boards” that depict the action sequences of the game. The story line and themes of the game help guide the development of this “concept art.” Computer programmers then take the concept art and create digital versions of the characters and the background scenes. The characters and scenes are then fully animated, and audio engineers add sound and music to the games. The visual and audio presentation is meant to be interesting as well as informative in the sense that it provides cues that help guide the player through various stages of the game. Visual and audio effects are also used as “rewards” for skillful and successful play. In addition, when no one is playing the game, most video games operate in an “attract mode” — essentially advertising themselves to prospective players. In the “attract mode,” the screen may show excerpts from the game, give instructions as to how the game is played, or introduce the characters and story line incorporated into the game. The plaintiffs’ game development witness further testified that video games are continuously increasing in complexity. Many of today’s games include three-dimensional simulated environments and full motion video similar to the technology used in computer-animated feature films. From beginning to end, the running time to complete a game can be eight hours or more. Further specifics about video games and the research about their effects are set forth in discussion of specific issues. III. The Parties The seven plaintiffs in this action seek to protect them own interests as well as the interests of a class of businesses whose interests would be similarly affected by enforcement of the challenged provisions of the Ordinance. (At this point no motion for class certification has been filed.) Plaintiffs Namco Cybertainment, Inc. and B.J. Novelty, Inc. own and operate amusement machines in the City of Indianapolis. The Ordinance directly regulates these two plaintiffs. Plaintiffs Shaffer Distributing Company and Cleveland Coin Machine Exchange, Inc. distribute entertainment machines in the City of Indianapolis. They seek to ensure that sales of their products are not hindered by the Ordinance. Plaintiffs American Amusement Machine Association, Amusement & Music Operators Association, and the Indiana Amusement & Music Operators Association are trade organizations seeking to protect the interests of members whose businesses are likely to be affected by the Ordinance. Defendants in this action are various officials of the City of Indianapolis and Marion County who have responsibility for enforcement of the Ordinance. Defendant Bart Peterson is the Mayor of Indianapolis. Defendant Teri Kendrick is the designated city prosecutor. Defendant Jack Cottey is the Sheriff for Marion County, and defendant Jerry Barker is the Chief of Police of the Indianapolis Police Department. All named defendants have been sued only in their official capacities, and all are referred to collectively here as “the City.” Discussion I. The Issues and Claims The City wrote the Ordinance with a close eye on First Amendment issues and the prospect of a challenge like this one. The City contends first that video games simply are not a form of expression protected under the First Amendment. Several courts reached that conclusion with respect to earlier, less sophisticated video games in the early 1980s. Assuming that such games are protected at all under the First Amendment, the City in its drafting tried to follow the reasoning of Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968), which upheld similar restrictions on children’s access to pornography as reasonable measures to protect children from harm. The City contends there is no principled constitutional distinction between pornography and graphic violence, at least with respect to children. In writing the Ordinance, the City also made a careful and deliberate effort to take the standard for unprotected obscenity as to adults and to adapt it to graphic violence for children. See Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Plaintiffs respond that video games, at least the more elaborate games now in circulation,- qualify as protected expression under the First Amendment. Plaintiffs therefore contend the Ordinance is an unconstitutional content-based restriction on protected speech. Plaintiffs also claim that the rule of Ginsberg v. New York is limited to material of a sexual nature and that the Ordinance could be constitutional only if the City could show it uses the least restrictive possible means to serve a compelling governmental interest, which plaintiffs contend would require definitive proof that violent video games in fact cause harm to children. As a separate but related claim for injunctive relief, plaintiffs also contend that the Ordinance is unconstitutionally vague — that it fails to provide the ordinary citizen with adequate notice of the prohibited conduct and fails to cabin the discretion of law enforcement personnel. II. Preliminary Injunction Standard To obtain a preliminary injunction, plaintiffs must show (1) a reasonable likelihood of success on the merits, (2) irreparable harm if the preliminary injunction is denied, and (3) the inadequacy of any remedy at law. See Grossbaum v. Indianapolis-Marion County Building Auth., 100 F.3d 1287, 1291 (7th Cir.1996). If this threshold showing is made, the court balances the harm to plaintiffs if the preliminary injunction is wrongly denied against the harm to the defendant if the injunction is wrongly granted. In the final step of the equitable analysis, the court must consider the public interest by weighing the effect that either granting or denying the injunction will have on non-parties. See Grossbaum, 100 F.3d at 1291; Erickson v. Trinity Theatre, Inc., 13 F.3d 1061, 1067 (7th Cir.1994); Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir.1992); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386-88 (7th Cir.1984). Where plaintiffs assert a violation of their free speech rights, such claims ordinarily satisfy at least the minimum requirements for-irreparable harm and inadequacy of legal remedies. As in most free speech cases, therefore, if plaintiffs could show they were likely to prevail on their constitutional claims, they would be entitled to a preliminary injunction. III. Video Games as Protected Expression The threshold issue is whether video games are forms of expression entitled to any protection at all under the First Amendment. In the early 1980s, most courts examining the issue concluded that the video games of that era were not protected by the First Amendment. See, e.g., America’s Best Family Showplace Corp. v. City of New York, 536 F.Supp. 170, 173-74 (E.D.N.Y.1982) (finding that video games were “pure- entertainment” not protected by the First Amendment because there was no “element of information or some idea being communicated”);Malden Amusement Co. v. City of Malden, 582 F.Supp. 297, 299 (D.Mass.1983) (adopting America’s Best analysis); Marshfield Family Skateland, Inc. v. Town of Marshfield, 389 Mass. 436, 450 N.E.2d 605, 609-10 (1983) (rejecting First Amendment challenge to town’s total prohibition on coin-activated amusement devices; court considered evidence of “Ms. Pac-Man,” “Tron,” “Donkey Kong,” “Zaxxon,” and “Kangaroo”), appeal dismissed, 464 U.S. 987, 104 S.Ct. 475, 78 L.Ed.2d 675 (1983); Caswell v. Licensing Comm’n, 387 Mass. 864, 444 N.E.2d 922, 926-27 (1983) (finding no First Amendment protection for video games where city denied license for automatic amusement devices; court considered evidence of “Space Invaders”); City of Warren v. Walker, 135 Mich.App. 267, 354 N.W.2d 312, 316-17 (1984) (holding that ordinance restricting children under age 17 from playing video games did not violate First Amendment). The reasoning of the Supreme Judicial Court of Massachusetts reflects these courts’ approaches to the relatively new medium in the 1980s. In 1988, the Massachusetts court stated: From the record before us, it appears that any communication or expression of ideas that occurs during the playing of a video game is purely inconsequential. Caswell has succeeded in establishing only that video games are more technologically advanced games than pinball or chess. That technological advancement alone, however, does not impart First Amendment status to what is an otherwise unprotected game. Caswell, 444 N.E.2d at 927 (rejecting analogies to movies and television as entertainment). However, these courts in the 1980s did not foreclose the possibility that further development of video games might transform them into a medium of protected expression. Later in the same year, the Massachusetts court re-examined and followed Caswell, but also emphasized that Caswell’s result was fact-sensitive and not intended to foreclose all debate on the issue of video games as speech. The court cautioned: “We recognize that in the future video games which contain sufficient communicative and expressive elements may be created.” Marshfield Family Skateland, 450 N.E.2d at 609-10; see also Tommy & Tina Inc. v. Department of Consumer Affairs, 117 Misc.2d 415, 459 N.Y.S.2d 220, 226-27 (N.Y.Sup.Ct.1983) (finding that video games considered in the case were not speech but leaving open the possibility that “games ... of a different nature” may be entitled to First Amendment protection), aff'd, 95 A.D.2d 724, 464 N.Y.S.2d 132 (N.Y.App.Div.1983), aff'd mem., 62 N.Y.2d 671, 476 N.Y.S.2d 290, 464 N.E.2d 988 (1984). It appears that few courts squarely addressed the issue during the 1990s, which was a period of substantial innovation in the video game industry. In 1991 the Seventh Circuit upheld a local ordinance that prohibited minors from playing video games during school hours. The court declined to decide whether video games are protected by the First Amendment and commented: On the basis of the complaint alone, we cannot tell whether the video games at issue here are simply modern day pinball machines or whether they are more sophisticated presentations involving storyline and plot that convey to the user a significant artistic message protected by the first amendment. Nor is it clear whether these games may be considered works of art. To hold on this record that all video games — no matter what their content — are completely devoid of artistic value would require us to make an assumption entirely unsupported by the record and perhaps totally at odds with reality. Rothner v. City of Chicago, 929 F.2d 297, 303 (7th Cir.1991) (emphasis in original). In Rothner the court assumed for purposes of its decision that the games might have included protected expression. The court then found that the ordinance still amounted to a reasonable restriction on the time, place, and manner of expression. See id. Whether video games can be protected speech remains undecided in the Seventh Circuit and apparently in other circuits as well. See Miller v. Civil City of South Bend, 904 F.2d 1081, 1098-99 (7th Cir.1990) (en banc) (Posner, J., concurring) (suggesting that video games fall in a “gray area” and that government has a greater scope for regulation in this area which may be outside the boundaries of the First Amendment), rev’d sub nom. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Plaintiffs in this case argue that the once-predicted future of video games has arrived, that the video games of the year 2000 have gone far beyond the simple displays in “Space Invaders” and “Pac-Man,” and that many of today’s games are highly interactive versions of movies and storybooks, replete with digital art, music, complex plots, and character development. The City argues that the limitations of the early medium have not been transcended and that, fundamentally, video games are still most closely analogous to mechanical pinball machines or shooting galleries at a local fair. As a general matter, video games will be protected under the First Amendment only if they include sufficient communicative, expressive, or informative elements to fall at least within, the outer limits of constitutionally protected speech. The Supreme Court, has never articulated a precise test for determining how the First Amendment protects a given form of expression. Instead, the Court has stated generally: “Each medium of expression ... must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975); see also David B. Goroff, The First Amendment Side Effects of Curing Pac-Man Fever, 84 Colum.L.Rev. 744 (1984) (analyzing the medium and arguing that video games are entitled to First Amendment protection). Any given form of entertainment, activity,- or interaction may or may not be protected under the First Amendment. Rather than using these labels, the court finds it more productive to discuss the actual evidence presented by the parties. Plaintiffs’ evidence about the expressive components of video games centered on the “Gauntlet” series of action-adventure video games. The series includes Gauntlet Legends and Gauntlet Legacy, which were both released within the last three years. These games are currency-operated “amusement machines” as that term is defined in the Ordinance. The Gauntlet Legacy story line deals with a fantasy world consisting of eight “realms” and an “underworld.” The eight realms are ruled by a powerful wizard named Sumner, while the underworld is ruled by the principal villain of the story, Skorne. In the background story, Sumner’s younger brother, Garm, accidentally opened a portal between the eight realms and1 the underworld. Skorne and his forces used the portal to invade the eight realms and disrupt Sumner’s peaceful rule. Vanquishing the forces of the underworld from each of the eight realms appears to be the goal of the game,- and, as best as can be deciphered from the record, a player participates in the action as one of eight “heroes” who can assist Sumner in attempting to defeat the underworld’s “eight great abominations.” The players travel to each realm in search of “items of legend” that will assist them in their task to recover the keys to the underworld and eventually to defeat the forces of Skorne once and for all. Plaintiffs did not demonstrate a video game from the Gauntlet series, and the court does not have any information about whether the series includes graphic violence or strong sexual content for purposes of the Ordinance. There is also some ambiguity as to how much of the detailed story line is actually communicated to the players and as to how this communication takes- place. -However, - the City did not attempt to rebut plaintiffs’ description of the action-adventure games. Without any attempt to assess artistic merit, the court finds that the visual art and the description of the action-adventure games in the record support plaintiffs’ contention that at least some video games contain protected expression. It is difficult for First Amendment purposes to find a meaningful distinction between the Gauntlet game’s ability to communicate a story line and that of a movie, television show, book, or — perhaps the best analogy — a comic book. Certainly the distinction cannot be simply that the game is interactive. The Internet is an interactive medium and receives First Amendment protection. See Reno v. ACLU, 521 U.S. 844, 868-69, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Town hall meetings and some theatrical performances are interactive, and their expression is also protected. As a further indication that at least some video games contain protected forms of expression, it would be theoretically possible for a law to engage in “viewpoint discrimination” in regulating video games. One can imagine a law requiring that, in games involving conflict and/or combat of some type, the player not be associated with forces of evil, darkness, or authoritarianism. In’ the opening sequence of “Silent Scope 2,” for example, the player adopts the role of a sniper whose mission is to shoot enemy “terrorists” in a scene set in London. The fact that it is possible even to consider a “viewpoint” of “good guys” and “bad guys” in these games is a significant indication that there are at least some aspects of plot and character that may be entitled to at least some degree of First Amendment protection. The City properly concedes as much. Tr. 105-06. The City’s evidence on the issue of video games as speech focused on fighting and shooting games, including a video tape containing edited footage from six games: “Ultimate Mortal Kombat 3,” “Mace: The Dark Age,” “Maximum Force,” “Time Crisis II,” “Silent Scope,” and “The House of the Dead 2.” See Ex. 17. At the hearing, the City asserted that the video games shown in Exhibit 17 contained “graphic violence” as defined by the Ordinance. See Tr. 52. In the first two games on the video tape, the player attempts to help his character survive and win one-on-one combat by executing various fighting tactics. The characters engage in hand-to-hand combat and use an assortment of weapons. “Ultimate Mortal Kombat 3” displays spurts of blood as blows are landed, and it appears that the fights end when one of the combatants is finally killed. The remaining four games on the City’s video tape are shooting games played from the first person perspective. In these “first person shooter” games, the view displayed on the screen is the view through the eyes of a gun-carrying character that the player controls. Of these four games “The House of the Dead 2” is the most graphic. The “plot” in “The House of the Dead 2” is that a town has been over-run by zombie-like characters who have killed many of the town’s inhabitants. The player adopts the persona of “James,” who is responding to the emergency. The zombies are “undead” human figures who are already substantially decayed and disfigured when James encounters them. The zombies attack James. James responds by shooting them. When shot, the undead die again in dramatic fashion. In some cases, the chest cavity explodes in a shower of blood, ribs, and gore, while in other cases the target is decapitated. The court observed at least one character whose entire upper torso appeared to have been severed from the lower half of the figure. In “Silent Scope 2,” a game the City demonstrated live at the hearing, the player shoots a mounted gun at designated targets. The game is another “first person shooter” game. In other words, the screen simulates the scene as viewed from the perspective of. an actual sniper using a rifle with a scope. The plot aspects are minimal, though not non-existent. The game amounts to electronic target practice on images of people. Based on the evidence in this record, the court finds that at least some contemporary video games include protected forms of expression. The court cannot deny a preliminary injunction based on the City’s sweeping theory that video games simply do not fall within the scope of the First Amendment. The court has no difficulty determining that any speech elements of “Silent Scope 2,” “The House of the Dead 2,” and several of the other games described in the record are relatively inconsequential — perhaps even so •inconsequential as to remove' the game from the protection of the First Amendment. However, at least some games are protected by the First Amendment. The nature of the Ordinance itself also cuts against the City’s suggestion that video games can never be an expressive medium. Courts'in America’s Best, Caswell, and Rothner dealt with either licensing ordinances or other regulations that applied to all video games as a monolithic class. In this case, the City has singled out certain games for regulation based on their content: either “strong sexual content” or depictions of “graphic violence.” It would be incongruous to conclude both that video games can be meaningfully distinguished based on their sexual and/or violent content, and that video games as a medium completely lack the capacity to communicate any other message, idea, or feeling that falls within the protection offered by the First Amendment. Considering the content-based nature of the Ordinance, the possibility of viewpoint discrimination in the medium, and the unchallenged description of action-adventure games, the protected content of some video games goes beyond their “strong sexual content” or their depictions of “graphic violence.” In finding that video games may contain at least some expressive content protected by the First Amendment, the court does not mean to suggest that video games are essential vehicles .of political speech or fine art. Not all protected ■ expression lies at the core of the First Amendment. For example, in Barnes v. Glen Theatre, Inc., the Supreme Court found that several earlier cases supported the conclusion that the “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.” 501 U.S. 560, 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion); accord, City of Erie v. Pap’s A.M., 529 U.S. 277, -, 120 S.Ct. 1382, 1391, 146 L.Ed.2d 265 (2000) (plurality opinion). Thus, even if, as the City suggests, video games can be labeled “low value” speech, they are entitled to protection under the expansive reach of the First Amendment. The court cannot deny a preliminary injunction based on the City’s sweeping theory that video games are not protected expression. TV. Regulating Children’s Exposure to “Graphic Violence” ' The conclusion that at least some video games are protected by the First Amendment does not mean the City is powerless to regulate “graphic violence” in the games offered to children. The Constitution permits government to impose restrictions on speech in limited circumstances. Laws that arguably restrict speech are analyzed under a variety of First Amendment standards. Several can be rejected at the outset as inapplicable to the Indianapolis Ordinance. First, the Ordinance does not regulate one of the categories of “unprotected” speech that the government has broad power to regulate as to adults. See R.A.V. v. City of St. Paul, 505 U.S. 377, 383-84, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (identifying obscenity, fighting words, and defamation as types of speech government can regulate because of “their distinctively proscribable content”); Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (no protection for words that incite imminent lawless action). Second, the City’s asserted purpose in passing the Ordinance — protecting children from exposure to games with graphic violence and strong sexual content — makes it clear that the City is directly regulating the dissemination of this material and not merely the “secondary effects” that result from having video games physically located in certain neighborhoods. See Reno v. ACLU, 521 U.S. 844, 867-68, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (making this distinction in regard to regulation of offensive speech on the Internet); cf. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (upholding zoning ordinance that limited locations for adult movie theaters where purpose of the ordinance • was to protect the city’s retail trade, maintain property values, and protect the city’s neighborhoods). Third, the Ordinance is not a content-neutral attempt to regulate solely the time, place, or manner of minors’ access ,to video games. See, e.g., Rothner v. City of Chicago, 929 F.2d at 303. Instead, the Ordinance regulates video games based on their sexual and/or violent content. The parties vigorously contest the standard that should apply here. Plaintiffs contend that the Ordinance amounts to a content-based restriction on speech that calls for the strictest possible scrutiny under the First Amendment. To meet this strict standard, plaintiffs claim that the City would need to show that the Ordinance uses the least restrictive possible means to serve a compelling governmental interest. Plaintiffs interpret “strict scrutiny” to mean that the City cannot prove it has a compelling interest in this case without definitive social science research establishing that playing violent currency-operated video games in fact causes children to engage in harmful aggressive behavior. The City disagrees. In Ginsberg v. New York and in later cases, the Supreme Court has recognized that psychological protection of children is a compelling interest even without such definitive proof of actual harm. See 390 U.S. at 639-42, 88 S.Ct. 1274 (upholding restriction on distribution of pornography to children in the face of conflicting evidence about whether it had harmful effects on children). Based on Ginsberg, the City argues that it need not show definitive proof of harmful effects, so long as it has a reasonable basis for concluding there may be such harmful effects. Given that legitimate basis for regulation, the City contends, the Ordinance is carefully tailored to serve that interest without infringing other First Amendment interests.- As explained below, the court agrees with the City. A. The First Amendment Rights of Children The City has built the constitutional foundation for the Ordinance on Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). In Ginsberg a store owner was prosecuted under a statute that prohibited the sale to minors of any magazine containing pictures that depicted “nudity, sexual conduct or sadomasochistic abuse and which is harmful to minors.” 390 U.S. at 647, 88 S.Ct. 1274. The Supreme Court upheld the statute against a First Amendment challenge. The Court reasoned that the state had the power to define obscenity in a variable manner — one definition that applies to adults and a broader definition that applies to children. This approach has often been described as “variable obscenity.” The Court began its analysis by noting that (1) the so-called “girlie” magazines involved in the case were not obscene for adults, (2) the statute in question did not prohibit the sale of the magazines to adults, and (3) because the issue was not presented, it was assumed that the magazines were in fact “harmful to minors” within the definition of the statute. Id. at 634-35, 88 S.Ct. 1274. There was no doubt that the First Amendment would have protected adults’ access to the magazines, but the Supreme Court upheld the restriction on access for children. Justice Brennan wrote for the Court: We do not regard New .York’s regulation in defining .obscenity on the basis of its appeal to minors under 17 as involving an invasion of such minors’ constitutionally protected freedoms. Rather [the statute] simply adjusts the definition of obscenity “to social realities by permitting the appeal of this type of material to be assessed in terms of the sexual interests ...” of such minors. Mishkin v. State of New York, 383 U.S. 502, 509, 86 S.Ct. 958, 16 L.Ed.2d 56; Bookcase, Inc. v. Broderick, 18 N.Y.2d 71, 271 N.Y.S.2d 947 [218 N.E.2d 668, 671] (1966). That the State has power to make that adjustment seems clear, for we have recognized that even where there is an invasion of protected freedoms “the power of the state to control the conduct of children reaches beyond the scope of its authority over adults.... ” Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 88 L.Ed. 645. Id. at 638, 88 S.Ct. 1274. As in the case of obscenity laws that apply to adults, see Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), the Ginsberg Court did not require definitive proof of harm: [O]bscenity is not protected expression and may be suppressed without a showing of the circumstances which lie behind the phrase “clear and present danger” in its application to protected speech. Roth v. United States, 354 U.S. 476, 486-87, 77 S.Ct. 1304. To sustain state power to exclude material defined as obscenity by [the New York statute] requires only that we be able to say that it was not irrational for the legislature to find that exposure to material condemned by the statute is harmful to minors. In Meyer v. State of Nebraska, 262 U.S. 390, 400, 43 S.Ct. 625, we were able to say that children’s knowledge of the German language “cannot reasonably be regarded as harmful.” That cannot be said by us of minors’ reading and seeing sex material. To be sure, there is no lack of “studies” which purport to demonstrate that obscenity is or is not “a basic factor in impairing the ethical and moral development of ... youth and a clear and present danger to the people of the state.” But the growing consensus of commentators is that “while these studies all agree that a causal link has not been demonstrated, they are equally agreed that a causal link has not been disproved either.” We do not demand of legislatures “seientifically certain criteria of legislation.” Noble State Bank v. Haskell, 219 U.S. 104, 110, 31 S.Ct. 186, 55 L.Ed. 112. We therefore cannot say that [the New York Statute], in defining the obscenity of material on the basis of its appeal to minors under 17, has no rational relation to the objective of safeguarding such minors from harm. 390 U.S. at 641-43, 88 S.Ct. 1274. Plaintiffs’ First Amendment challenge to the Ordinance in this case is based ultimately on the premise that children have a First Amendment right to play video games, including those depicting graphic violence, without their parents’ permission. Surely the plaintiffs have no independent First Amendment right to sell their entertainment services to children without the parents’ permission. Ginsberg shows, however, that the Court examines regulation of material that is arguably “harmful to minors” under a standard less strict, at least as a practical matter, than the presumption of unconstitutionality applied to most content-based restrictions. See, e.g., Simon & Schuster, Inc. v. Members of New York State Crime Victims Bd., 502 U.S. 105, 115, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991) (presuming unconstitutionality and applying strict scrutiny to strike down “Son of Sam” statute designed to prevent convicted criminal from profiting by selling the story of his crime). Under this standard, the government may restrict minors’ access to some speech that is protected for adults. Other Supreme Court decisions show that children have rights under the First Amendment, but that those rights are not as broad as those of adults. Both Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), and West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943), for example, demonstrate that children have significant First Amendment rights. In Tinker, the Supreme Court held that a school could not punish a student for expressing his political opposition to the Vietnam War by wearing a black armband in school. 393 U.S. at 506-09, 89 S.Ct. 733. “Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State.” Id. at 511, 89 S.Ct. 733. Similarly, in Barnette the Court held that a student could not be punished for refusing to pledge allegiance to the flag and to the United States. 319 U.S. at 640-42, 63 S.Ct. 1178 (1943). “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” Id. at 642, 63 S.Ct. 1178. Outside the school context, which raises its own set of issues, the Court’s decision in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), also recognized that children have a First Amendment right of access to some materials — in that case, movies — even if the movies display nudity. The Court recognized, however, that those rights would not extend to materials deemed “obscene as to minors,” as in Ginsberg. 422 U.S. at 212-13, 95 S.Ct. 2268. Similarly, in Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989), the Court struck down a federal law banning all “dial-a-porn” telephone messages but recognized that a law blocking only children from receiving such messages would be constitutional. The majority recognized the limited First Amendment rights of children: “there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards.” Id. at 126, 109 S.Ct. 2829; see also id. at 134, 109 S.Ct. 2829 (Brennan, J., dissenting in part) (“To be sure, the Government has a strong interest in protecting children against exposure to pornographic material that might be harmful to them.”). The limits of children’s First Amendment rights are also evident in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), in which the Supreme Court established the standard for obscenity as to adults. The Court was sharply divided over that standard for adults, but an overwhelming majority of the Court recognized that distribution of sexually oriented materials to children raised a different set of questions. See 413 U.S. at 47, 93 S.Ct. 2607 (Brennan, J., dissenting) (noting that case did not present any issue about “state power to regulate the distribution of sexually oriented material to juveniles”); id. at 27, 93 S.Ct. 2607 (majority opinion) (pointing out dissent’s implicit concession with respect to sexual material for children). Board of Education of Island Trees v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435 (1982), also demonstrates the limits on children’s First Amendment rights. The Court considered the First Amendment implications of a school board’s decision to remove several controversial books from the school library. All the books remained available to children in bookstores and through other channels. The Court did not agree on a majority opinion. However, the Justices who found that the school board might have violated the First Amendment acknowledged that the school board was free to remove books because they were deemed “vulgar” or because they were deemed psychologically or intellectually inappropriate for the age group. 457 U.S. at 871, 102 S.Ct. 2799 (plurality opinion of Brennan, J.); id. at 880, 102 S.Ct. 2799 (Blackmun, J., concurring). Similarly, all justices agreed that if the school board removed books because of the ideas expressed in them, that would violate the First Amendment. See id. at 907, 102 S.Ct. 2799 (Rehnquist, J., dissenting); id. at 870-71, 102 S.Ct. 2799 (plurality opinion); id. at 877-78, 102 S.Ct. 2799 (Blackmun, J., concurring). The Supreme Court has not adopted a broad theory of children’s First Amendment or other constitutional rights, nor has it demarked precise boundaries for those rights. See also Goss v. Lopez, 419 U.S. 565, 574, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975) (recognizing children’s due process rights with respect to suspension or expulsion from public school, citing Tinker and Barnette); In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (adapting adults’ procedural rights in criminal cases to juvenile delinquency proceedings; “neither the Fourteenth Amendment nor the Bill of Rights is for adults alone”). This court need not undertake such an ambitious project to decide the pending motion for preliminary injunction. It is sufficient for the present to observe that children’s First Amendment rights are undeniably narrower than adults’ rights, and that Ginsberg establishes a framework for regulating a narrow range of speech that is protected as to adults, but harmful as to minors. Indianapolis wrote its Ordinance with Ginsberg in mind, and there are several important similarities indicating that Ginsberg provides the proper standard of review here. First, as New York did in Ginsberg, the City relies on both its “independent interest in the well-being of its youth” and on “the principle that ‘the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.’” See Reno v. ACLU, 521 U.S. at 865, 117 S.Ct. 2329, quoting Ginsberg, 390 U.S. at 639, 88 S.Ct. 1274. The Supreme Court has consistently recognized such interests as substantial, and it has done so without requiring social science research definitively proving the danger of harm to children. Second, just as the New York law in Ginsberg did not materially limit adults’ access to the pornographic materials in question, the City’s Ordinance also does not significantly limit adult access to video games containing graphic violence. See American Booksellers v. Webb, 919 F.2d 1493, 1509 (11th Cir.1990) (upholding ordinance barring public display of materials deemed obscene as to children because it did not substantially limit adults’ access to materials); Crawford v. Lungren, 96 F.3d 380, 387-88 (9th Cir.1996) (upholding law barring sale of pornographic material in unattended vending machines; law did not significantly restrict adults’ access to such materials); Upper Midwest Booksellers Ass’n v. City of Minneapolis, 780 F.2d 1389, 1394-95 (8th Cir.1985) (upholding ordinance requiring that pornographic magazines be displayed for sale in sealed packages with opaque covers; ordinance did not substantially impair adults’ access to regulated material); M.S. News Co. v. Casado, 721 F.2d 1281, 1288-89 (10th Cir.1983) (upholding ordinance requiring that pornographic magazines be displayed for sale behind “blinder” covers on racks; ordinance also did not substantially impair adults’ access to regulated materials). Third, also like the New York law in Ginsberg, the Ordinance does not prevent parents who so desire from allowing their children to be exposed to the regulated material, either sexual material as in Ginsberg or sexual content or graphic violence in video games in this case. In other words, the Ordinance does not impose a total ban on access even as to children. In Ginsberg the Court noted that the New York law similarly allowed parents to permit their children to have access to the materials in question. 390 U.S. at 639 & n. 7, 88 S.Ct. 1274; cf. Reno v. ACLU, 521 U.S. at 878, 117 S.Ct. 2329 (lack of exception for parental consent imposed heavier burden on government to justify restrictions on indecent expression on the Internet). Fourth, the Ordinance attempts to regulate only transactions in a commercial setting where it is reasonable to expect the seller to (1) physically segregate games that are harmful to minors, (2) effectively monitor the regulated games, and (3) verify the customer’s age. Commercial exhibition of coin-operated video games is similar in this respect to selling magazines as in Ginsberg, and different from the Internet, telephone calls, and cable channels, which are discussed below with respect to government attempts to impose broad restrictions affecting adults because age verification presented a significant problem. Fifth, the record demonstrates that many, perhaps most, video games contain only the barest minimum of protected speech, whereas magazines (at issue in Ginsberg) can lie much closer to the core of the First Amendment. In light of these strong parallels, Ginsberg establishes the proper framework for deciding plaintiffs’ First Amendment challenge to the Ordinance. The practical difference between the Ginsberg framework and the plaintiffs’ interpretation of “strict scrutiny” lies in whether the City is required to prove that video games with graphic violence in fact cause harm to minors, or whether, as in Ginsberg, the City may rely on its compelling interest in the welfare of minors to legislate narrowly in a field where the available social science data reflect some arguable uncertainty as to the actual harm caused by video games. The applicable standard of scrutiny does not have a substantial effect on the outcome of the other First Amendment issues here. B. Plaintiffs’ Arguments for Strict Scrutiny Plaintiffs rely on several recent Supreme Court decisions to argue that the Ordinance should be subjected to “strict scrutiny,” meaning the City would have the burden of showing the Ordinance is necessary to promote a compelling interest and that it has chosen the least restrictive means to further that interest. See, e.g., United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 1886, 146 L.Ed.2d 865 (2000) (applying strict scrutiny to the “signal bleed” provisions of the Telecommunications Act of 1996); Reno v. ACLU, 521 U.S. 844, 868, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (applying “most stringent review” to Communications Decency Act’s restrictions on indecent and patently offensive Internet communications); Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) (applying strict scrutiny to prohibition of indecent telephone messages). Plaintiffs contend that under strict scrutiny, the City must, prove as a matter of fact that it has a compelling interest in restricting children’s access to violent video games. In plaintiffs’ view, that would require definitive proof from controlled social science research that playing coin-operated arcade video games in fact causes harmful aggressive behavior. Neither the cited cases nor others impose such a burden on the City in this case. In Sable Communications, Playboy Entertainment Group, and Reno v. ACLU the Court took for granted the government’s assertion that it had a compelling interest in protecting children from exposure to sexually explicit material that was constitutionally protected with respect to adults. See Playboy Entertainment Group, — U.S. - at -, 120 S.Ct. at 1886-87 (citing Ginsberg and recognizing government had -compelling interest in protecting children from explicit sexual material, but means used to serve it reached too broadly and interfered with adults’ rights); Reno v. ACLU, 521 U.S. at 875, 117 S.Ct. 2329 (same); Sable Communications, 492 U.S. at 126, 109 S.Ct. 2829 (same). All three decisions plainly indicated that measures restricting only children’s access to the material would have been constitutional. Playboy Entertainment Group, — U.S. at -, 120 S.Ct. at 1886-87; Reno v. ACLU, 521 U.S. at 878-79, 117 S.Ct. 2329 (noting that additional refinements of statute might also be needed, such as exception for “valued” messages and parental consent); Sable Communications, 492 U.S. at 126, 109 S.Ct. 2829. None of the three decisions indicated that a government would need definitive research results to prove harm before imposing content-based restrictions on children’s access to material that could reasonably be deemed harmful to them. The difficult problem in each of those three eases, which is not presented here, was that the technology of each medium made it difficult to restrict children’s access without also restricting adults’ access to the same material. In Sable Communications, the Supreme Court reviewed federal legislation banning all so-called “dial-a-porn” telephone services offering prerecorded sexually oriented messages. The Court upheld the ban as applied to dial-a-porn messages that were obscene by adult standards, but it struck down the ban as applied to messages that were “indecent” but not obscene as to adults. See 492 U.S. at 126, 109 S.Ct. 2829. The asserted purpose of the federal statute was to prevent children from being exposed to indecent telephone messages, but the statute criminalized all indecent communications made by telephone. The government’s theory was that the age of the caller could not be determined over the telephone, so the only effective way to limit children’s access was to limit everyone’s access. See id. at 122-23, 128-29, 109 S.Ct. 2829. Thus, the statute placed a total ban on adult access to indecent messages — a form of expression the First Amendment protects as to adults. In striking down the prohibition, the Court reaffirmed Ginsberg but wrote: Sexual expression which is indecent but not obscene is protected by the First Amendment; and the federal parties do not submit that the sale of such materials to adults could be criminalized solely because they are indecent. The Government may, however, regulate the content of constitutionally protected speech in order to promote a compelling interest if it chooses the least restrictive means to further the articulated interest. We have recognized that there is a compelling interest in protecting the physical and psychological well-being of minors. This interest extends to shielding minors from the influence of literature that is not obscene by adult standards. Ginsberg v. New York, 390 U.S. 629, 639-640, 88 S.Ct. 1274, 20 L.Ed.2d 196 (1968); New York v. Ferber, 458 U.S. 747, 756-757, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The Government may serve this legitimate interest, but to withstand constitutional scrutiny, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms. Hynes v. the Mayor and Council of the Borough of Oradell, 425 U.S. 610, 620, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976); First National Bank of Boston v. Bellotti, 435 U.S. 765, 786, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978).” Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980). It is not enough to show that the Government’s ends are compelling; the means must be carefully tailored to achieve those ends. Id. at 126, 109 S.Ct. 2829. Applying this standard to the ban on indecent communications, the Court held that the statute was “not a narrowly tailored effort to serve the compelling interest in preventing minors from being exposed to indecent telephone messages.” Id. at 131, 109 S.Ct. 2829. Thus, Sable Communications teaches that where government regulation of material harmful to children sweeps too broadly and unduly restricts the First Amendment rights of adults, strict scrutiny will likely be fatal to the challenged restrictions. As to adults, the regulation of indecent phone messages was simply a content-based restriction, and it failed strict scrutiny because it significantly affected adults’ First Amendment interests. See id. (finding that the statute “has the invalid effect of limiting the content of adult telephone conversations to that which is suitable for children to hear.”). In Ginsberg, by contrast, the Court explicitly found that the New York statute did not restrict adult access to the magazines. United States v. Playboy Entertainment Group, Inc. and Reno v. ACLU are distinguishable from Ginsberg and this case on similar grounds. In both cases, the challenged statutes went beyond the government’s asserted — and legitimate — interest in limiting minors’ access to certain speech and significantly restricted adult access to protected communication. In Playboy Entertainment Group, the Court found: “To prohibit this much speech is a significant restriction on communication between speakers and willing adult listeners, communication which enjoys First Amendment protection.” — U.S. at -, 120 S.Ct. at 1886 (assessing regulation of adult-oriented cable television stations whose video and audio signals, even when scrambled, could sometimes be heard or seen). Similarly, when examining regulation of indecent speech on the Internet, the Court found that the statute “effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptabl