Computer and Video Games and the First Amendment
“ Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” — First Amendment, Adopted 1789
Just the Facts
30 Average game player age.
Americans cherish First Amendment freedoms, and the United States Supreme Court has a whole body of jurisprudence designed specifically to safeguard those rights from eroding. Some of this law is quite complex, but the Court’s rulings around free speech can be understood in broad terms if one recognizes that First Amendment protections are at their highest where the government attempts to restrict expression because it disapproves of its content. Such restrictions on speech are presumptively invalid and must satisfy what the Supreme Court calls “strict scrutiny.” To pass this exacting standard, the government must prove that the law is necessary to further a compelling government interest, and that it is narrowly tailored to further that interest. In other words, the government must use means that are the least restrictive of protected speech.
It is firmly established law that computer and video games are fully protected expression under the First Amendment. This makes sense, because computer and video games, like other protected expression such as movies, books, and music, have an artistic viewpoint, and use sounds and images to create an experience and immerse the player in a story. Today’s computer and video games are so immersive, and contain so much original expressive content in artwork, music and story, that they are really small worlds unto themselves. Indeed, many games take off from stories first told in books or movies, and are transformed into a game play experience. It would be nonsensical for a movie or book to be protected while a game based on the same title, and containing essentially the same creative elements, is denied protection.
What Others Are Saying
Violence is conveyed in explicit ways on television, in print media, via the Internet and in film. All of these platforms constitute speech protected by the first amendment of the United States Constitution.
| — | Gordon Bellamy, International Game Developers Association Chair TGDaily, May 2, 2010 |
Moreover, it is well established that the government cannot act as a censor simply because children are involved. As Judge Richard Posner wrote in the context of striking down a legal restriction on minors’ access to violent games, this is “not merely a matter of pressing the First Amendment to a dryly logical extreme. . . . People are unlikely to become well-functioning, independent-minded adults, and responsible citizens if they are raised in an intellectual bubble.” American Amusement Mach. Ass’n. v. Kendrick, 244 F.3d 572 (7th Cir. 2001). Also, it is not just the First Amendment rights of minors that are at stake. Any content-based prohibition on expressive works would create a chilling effect for game designers, who will shy away from creating games that come close to the prohibited line for fear of being subjected to legal sanctions.
All told, there is an unbroken chain of judicial rulings striking down laws designed to regulate the distribution of computer and video games. Now, the U.S. Supreme Court has decided to review the constitutionality of a video game law enacted in California. The Supreme Court should reject the California statute by simple application of these core Constitutional principles.
First, it is not at all clear that California has a compelling government interest in this case. There is not even a scintilla of credible evidence that computer and video games cause real life violence. Many courts have looked at the studies cited by California all concluded that the research suffers from significant flaws and fails to demonstrate any link. At the same time, much available evidence seems to point the other way. For instance, as computer and video games have become more prevalent, the violent crime rate has been dropping among the young.
Second, even if the state could prove a compelling government interest, a ban on games is clearly not a narrowly-tailored solution or one that is the least restrictive of protected speech. The interactive entertainment software industry has worked hard to create a highly effective neutral board to rate games’ appropriateness for various age ranges. This important tool performs a valuable service to allow parents to make informed choices about the content their children consume. The existence of the ratings board demonstrates that California is wrong when it says that it needs to regulate the sale of games to minors to help parents. The ratings system exists, it works, and it is far less restrictive to protected speech than California’s heavy-handed law. If the state wanted to do something more, it could do more to promote citizens’ knowledge or use of the ratings system — which would have no pernicious impact on protected speech.
California’s law is clearly unconstitutional under existing First Amendment principles. That is why courts have held it unconstitutional, along with every other similar law to date. That is also why California is now calling for the Supreme Court to create a new exception to the First Amendment for video games. The Supreme Court should resist this call. The Court has recognized time and again the dangers of denying First Amendment protection to expression simply because the government declares that it is harmful. As Chief Justice Roberts wrote for the Court in a recent case, United States v. Stevens, 559 U.S.___(2010), there is not “a freewheeling authority to declare new categories of speech outside the scope of the First Amendment.” (slip op. at 9).
In Stevens, the law at issue regulated portrayals of horrific animal torture. The government defended its statute, saying that there must be a balancing of the value of the speech against its societal costs. Roberts called that approach “startling and dangerous.” (slip op. at 7). He wrote, “The First Amendment’s guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it.” (slip op. at 7). So, in that case, even speech that many found highly objectionable was found to be completely protected by the First Amendment.
Computer and video games, which are entirely in the mainstream of modern expression, are protected, too. The Supreme Court has said simply and elegantly that the government cannot suppress minors’ speech “solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” Erznoznik v. City of Jacksonville, 422 U.S. 205, 213-214 (1975). The Court should decline the invitation to create a new exception to the First Amendment, apply its traditional tests and hold that this content-based restriction on free speech cannot prevail.
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