'Exceedingly vexed and difficult': games and the First Amendment.

• Author: Morley, Michael T.

Weigand v. Village of Tinley Park, 114 F. Supp. 2d 734 (N.D. Ill. 2000).

The mayor of Tinley Park, Illinois, describes his village as a "dynamic, progressive community" of more than 45,000 people. (1) He claims it is a "great place to live, work and play." (2) Until September 22, 2000, however, the village was a "great" place to play only for those who didn't mind being ticketed and fined. Far from encouraging the "outdoor recreation and family oriented fun" (3) promised on its website, the village enforced a draconian ordinance making it unlawful to "play any games upon any street, alley, or sidewalk, or other public place except when a block party permit has been issued" by the village government. (4) The local code went on to define "public place" as including "any street, sidewalk, park, cemetery, school yard, [or] body of water." (5) On its face, the ordinance

prohibit[ed] children from playing tag at recess in the schoolyard without a block party permit from the Village President and the Board of Trustees; likewise it would [have] apparently bar[red] a child from playing with his Gameboy on the sidewalk, or kids from playing in a pool or river--bodies of water--or skating in the park without obtaining a permit, and similar absurdities. (6) During the summer of 2000, Karen Weigand and two other Tinley Park residents were charged with "parental irresponsibility," because their children violated the ordinance by "play[ing] baseball in the street of their cul-de-sac." (7) A Cook County judge upheld the measure, saying it "does not seem to be beyond the scope of the legislative body of the city." (8) In response, Weigand and several other local parents challenged the law in federal court. U.S. District Judge Elaine Bucklo issued a preliminary injunction against its enforcement, ruling that the parents were likely to prevail at trial on the issue of the ordinance's constitutionality. (9) A month after the ruling, the ordinance was repealed. (10) In January 2001, Judge Bucklo made the injunction permanent, forever barring the village from reinstating the ordinance. (11)

In her initial ruling, Judge Bucklo noted that the ordinance was constitutionally flawed in three different ways. First, she held that the ordinance failed the rational basis test because the village lacked a legitimate reason for banning games in schoolyards, parks, and pools. (12) Second, she found that the ordinance implicated the First Amendment by infringing upon people's constitutional right to assemble for the purpose of engaging in a form of expressive conduct--namely, playing games. (13) The ordinance could not survive strict scrutiny, and so was unconstitutional. (14) Finally, citing philosopher Ludwig Wittgenstein, she ruled that "[t]he term `game' is exceedingly vexed and difficult." (15) Because the ordinance did not define what a "game" was, it "fail[ed] to articulate with any specificity the conduct to be proscribed," (16) and so was void for vagueness.

Although I believe Judge Bucklo was correct in invalidating the ordinance, I disagree with some of her constitutional analysis. This Comment concentrates on her second rationale for invalidating the ordinance, challenging the conclusion that games are a type of expressive conduct that gives rise to the right of assembly. Part I of this Comment argues that games in general, including certain types of video games, do not constitute a form of expressive conduct protected by the First Amendment. Part II considers the special case of sporting events meant to be watched by an audience. Part III concludes.

I

Judge Bucklo all but assumed that games were a form of constitutionally protected expressive conduct, noting, "If `nude dancing ... is expressive conduct within the outer perimeters of the First Amendment, though ... only marginally so,' surely innocent game playing may be protectable expressive conduct as well." (17) This type of reasoning sets a dangerous precedent. Granting First Amendment protection to anything more "innocent" than nude dancing would extend the Constitution's penumbra to nearly all forms of noncriminal human activity. Moreover, the Supreme Court has recognized that nude dancing is itself a borderline case. (18) Game playing seems to lack the inherently communicative features of most other forms of expressive conduct, such as wearing black armbands, (19) flag burning, (20) sit-ins, (21) and picketing.(22)

Most importantly, however, Judge Bucklo's approach is inconsistent with the doctrine underlying the concept of expressive conduct. As the Supreme Court has recognized, "it is possible to find some kernel of expression in almost every activity a person undertakes--for example, walking down the street or meeting one's friends at a shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." (23) In determining whether conduct is sufficiently expressive to invoke First Amendment protection, the Court looks to whether "[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." (24)

The Court later liberalized the first prong of this test, emphasizing that "a narrow, succinctly articulable message is not a condition of constitutional protection, which if confined to expressions conveying a `particularized message,' would never reach the unquestionably shielded painting of Jackson Pollock, music of Arnold Schonberg, or Jabberwocky verse of Lewis Carroll." (25) In considering...