Did Jack Thompson pre-emptively doom future game laws?

I’ve written a lot about laws restricting the sale of violent video games and how they’re inevitably found unconstitutional. Florida lawyer and anti-game curmudgeon Jack Thompson has been a driving force behind several of these laws, including one in Louisiana that has left taxpayers on the hook for $92,000 in legal fees. But now Thompson might have unwittingly made those laws much harder to pass — at least if he has anything to do with them.

Back in October, Thompson made a big fuss over Bully and tried to block the game from being sold in Florida. The judge in that case filed a complaint over Thompson’s behavior and statements, a complaint that was upheld by the Florida Bar. Take-Two Interactive, the publisher of Bully, sought to have Thompson declared in contempt of court and sued him, fearing Thompson would try the same Bully tactics after he threatened to sue to block sales of the upcoming Manhunt 2 and Grand Theft Auto IV.

Now Thompson and Take-Two have settled that lawsuit and a Thompson countersuit. Here is one of the terms of the settlement:

Thompson shall not assert any claims in his own name, whether on behalf of himself or another person, state, or any other entity, against any person, corporation, or any other entity, in any court world-wide, seeking to restrict, in any way, the sale or distribution of any game designed, published, manufactured, distributed or sold by Take-Two…[emphasis added]

What implications does this section have on future Thompson-backed state laws? It’s clearly just intended to stop Thompson from suing the company to block the sale of games. But could a creative lawyer use this passage to help kill state laws?

What if, subsequent to this settlement, a state enacted a law pushed by Thompson restricting the sale of violent games, and then the ESA sued to try to declare the law unconstitutional — wouldn’t part of the state’s defense constitute Thompson asserting his claim on the state’s behalf? States couldn’t carve out an exception for Take-Two (that would make the laws even more blatantly unconstitutional), so they would be left trying to defend in court laws that ultimately target Take-Two and that have Jack Thompson’s name and fingerprints all over them.

The key is the word “assert.” If “assert any claims” here means “initiate any claims,” then the settlement would probably apply only to Thompson actually filing suit against Take-Two. But legal language is usually very precise. Unless “assert” has a clear and understood legal meaning that I’m not familiar with, it’s a broader term than “initiate” — and it seems like it could apply to laws he has helped craft.

A state passing a law is different from the state filing suit. I also don’t know how a settlement between two private entities can affect legislation. Still, once the state was taken to court, if Thompson was involved in crafting the law then the defense would inherently include his asserting a claim — but if the settlement forbids that, something has to give. So to me, this part of the settlement reads like it’s basically preventing Thompson from getting involved in subsequent video game legislation.

Any lawyer readers out there who can chime in?

— April 24, 2007

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