Application of the First Amendment to Violent and Nonviolent Video Games

• Publication year: 2010

Application of the First Amendment to Violent and Nonviolent Video Games

Anthony Ventry III

Introduction

Imagine following a rugged American soldier during World War II as he infiltrates the Axis frontlines on a dangerous mission. He and his allies carefully and strategically battle the enemy forces on the lush landscape. The hero skillfully avoids enemy fire while directing his squad and targeting enemy soldiers.

The brutal combat is portrayed in exact and frightening detail. The sounds of warfare penetrate the air as cannons fire, planes zoom overhead, grenades explode, and machine guns rapidly fire shots in all directions. The soldier hides behind the ruins of a demolished building and peers into his scope. As the thick black smoke from a recent grenade explosion clears, the faint outline of an enemy combatant appears with weapon in hand. Holding his rifle steadily, the hero squeezes the trigger.[1]

The First Amendment to the United States Constitution provides that "Congress shall make no law . . . abridging the freedom of speech."[2] The Constitution protects speech in a novel or a periodical that portrays exploits identical to those of the hypothetical protagonist.[3] When a group of live actors performs this same scene, the Constitution undoubtedly protects the narrative as a form of expression.[4] Courts invariably hold that the same scene in a movie or on television warrants protection as free speech.[5] Courts would likely view this scene as constitutionally protected speech if it was part of the content of an Internet site.[6] However, if the same events had appeared in a video game, the First Amendment protections that protect the other media forms may not apply.

Recent federal district and circuit court decisions have been split on the issue of whether video games constitute speech under the First Amendment. [7] The issue arises primarily in the following two contexts: (1) through a merchant's challenge to a local ordinance that restricts children's access to video games or (2) through a tort claim filed against the developer or manufacturer of a video game, alleging that a violent video game influenced a person to commit violent acts.[8] Most courts have "appropriately refused to impose strict product liability" in cases involving information such as the content of video games, which is an intangible contained in a tangible medium.[9] Lacking a clear test from the Supreme Court, the lower courts vary on the applicable standard for determining whether a video game qualifies as speech.[10]

Part I of this Note summarizes the First Amendment jurisprudence regarding different types of expression or media and regarding the standards that courts have established to determine which forms of content constitute speech.[11] Part II reviews the early decisions, which primarily found no expressive content in first-generation video games.[12] Part II also discusses the shift by some courts that have recognized at least the possibility that some video games are speech. Part II concludes with an analysis of recent decisions and the standards set forth by the courts.[13] Part III evaluates, from both the tort and regulatory perspectives, the impact of recognizing video games as speech and examines policy considerations.[14] Finally, this Note concludes by summarizing the applicable law and by recommending a standard for courts to follow in cases that involve the applicability of the First Amendment to video games.[15] This Note concludes that, given the realities of modern video games and the broad array of expressive and non-expressive content, courts should apply a case-by-case approach in determining whether video games are constitutionally protected speech instead of deciding conclusively that all video games are (or are not) protected speech.[16]

I. Summary of First Amendment Jurisprudence

A. Media Other Than Video Games

The First Amendment provides that "Congress shall make no law . . . abridging the freedom of speech."[17] "The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment."[18] "While First Amendment function at the time of its conception is clear, scholars continue to debate the Framers' overarching intent."[19] "[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.'"[20] Courts have not limited the constitutional protection to political speech; "[e]ven dry information, devoid of advocacy, political relevance, or artistic expression, has been accorded First Amendment protection."[21]

The First Amendment incontrovertibly extends to print media as well as spoken media.[22] In 1952, the United States Supreme Court extended protection to motion pictures.[23] In Joseph Burstyn, Inc. v. Wilson,[24] the Court rejected claims that motion pictures "do not fall within the First Amendment's aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit" or that they "possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression."[25] Additionally, the Court has reaffirmed this principle by holding that the free speech protection afforded to the print media extends to plays and live performances.[26] Courts have consistently held that Internet sites are speech, although not without exception.[27]

B. Applicable Standard of Review in Video Game Cases

No precise test exists "for determining how the First Amendment protects a given form of expression."[28] The Court has not yet squarely decided that video games may, at least in some circumstances, constitute speech under the First Amendment. Finding no direct guidance, most lower courts considering the issue rely on Southeastern Promotions, Ltd. v. Conrad,[29] a case in which the Court held that "[e]ach medium of expression . . . must be assessed for First Amendment purposes by standards suited to it," as a guideline for determining whether to extend First Amendment protection to any new or existing medium like video games.[30] Unfortunately, lower courts have not consistently interpreted the Supreme Court's guidance.[31] To fall within the First Amendment, entertainment content like video games "must be designed to communicate or express some idea or some information"; courts will not afford a presumption that all conduct is expressive.[32]

II. Varying Approaches to Whether Video Games Are Constitutionally Protected Free Speech[33]

A. The Courts Support Movements to Curb the Effects of Pac-Man Fever: The Early Decisions

When video games began to enjoy mass appeal in the early 1980s, federal and state courts consistently held that video games are not speech.[34] In those cases, the courts upheld local zoning ordinances and other government restrictions on access to video games.[35] The earliest decisions simply held that all video games were "pure entertainment with no informational element" and thus were not speech because they more closely resembled a "pinball game, a game of chess, or a game of baseball."[36] These early decisions established a precedent that some communicative aspect must be apparent in a medium for courts to afford First Amendment protection to that medium, although the Supreme Court has never imposed this restriction.[37] While the available technology severely constrained the communicative aspects of early video games, some decisions recognized that, as technology increased, there would be a time in the future when video games might contain sufficient expressive elements to qualify as speech.[38] However, the courts that envisioned the possibility of certain video games achieving the status of free speech still recognized that "technological advancement alone . . . does not impart First Amendment status to what is an otherwise unprotected game."[39]

This approach continued into the early 1990s, when the United States Court of Appeals for the Seventh Circuit decided in Rothner v. City of Chicago[40] not to extend constitutional protection to video games because the record lacked sufficient evidence of communicative elements in the games examined.[41] However, the court in Rothner recognized:

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 [F]irst [A]mendment. Nor is it clear whether these games may be considered works of art [sic]. 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.[42]

Although this discussion is dicta, it opened the door for the court in American Amusement Machine Association v. Kendrick[43] to hold affirmatively that at least some video games contain constitutionally protected free speech.[44]

B. Kendrick Hits the Reset Button on the Common Law Precedent

The decision by the United States District Court for the Southern District of Indiana in Kendrick marked the turning point in the common law view on video games.[45] Where the court in Rothner declined to decide the issue but merely recognized the possibility that contemporary video games may contain sufficient communicative content to afford them constitutional protection, the court in Kendrick more positively held that technological advancements have brought at least some video games into the ambit of constitutional speech.[46]

In Kendrick, a local ordinance required parental permission for minors to play or watch video games that contained content that was "‘harmful to minors,'" games that "include[d] either ‘strong sexual content' or ‘graphic violence.'"[47] Video game manufacturers challenged the...