But
Turner is inapposite. That case considered a statute subject to an intermediate level of scrutiny, a lesser standard than the strict scrutiny established for video games by the Eighth Circuit in
Interactive Digital Software. As the State well knows, where protected First Amendment speech is concerned, any regulation is subject to “strict,” rather than
Turner's “intermediate,” scrutiny. The Eighth Circuit did quote
Turner for the proposition that “substantial supporting evidence” of harm is required, but we do not find this reference adopted
Turner's less-strict standard.
Interactive Digital Software Ass'n, 329 F.3d at 959. Under Eighth Circuit precedent, the State must meet a higher standard and provide substantial, actual “empirical support for its belief that ‘violent’ video games cause psychological harm to minors.”
Id. The State has failed to meet this burden.