Video Games Now Officially Protected Under the First Amendment

I’ve been following, with some interest, a federal case dealing with a California law that bans the sale of violent video games to minors, without a parent’s consent. Game retailers and publishers challenged the law, arguing that it violated the First Amendment’s guarantee of free speech.

Every federal court has come out on the side of the game industry, and as of today, that includes the U.S. Supreme Court. Several years ago, California passed a law that would have made it illegal to sell a violent video game to a minor under the age of 18, without the permission of the parent or legal guardian. Such games being sold in California would have had to include a large label on the front of the package that said “18+.” This would have put violent video games essentially in the same legal category as pornography.

Publishers and retailers of video games immediately criticized the law, and challenged it in federal court as unconstitutional.

The case got a good amount of media attention (including on our law blog), largely due to the hysteria over sex and/or violence in video games that seems to arise in the news media every few years.

The Supreme Court, hopefully ignoring the madness, ruled 7-2 that videogames, just like other modes of expression such as books, plays, paintings, and films, are subject to the protection of the First Amendment, and that governments must overcome some extremely high burdens to overcome in order to restrict the content of these games.

Personally, I think that this ruling can only mean good news for the continued vitality of the First Amendment. While video games may not be widely viewed as a “serious” art form (and, let’s be honest – that consensus is largely justified if you look at the quality of storytelling in the vast majority of games), they entered the mainstream as a legitimate hobby and pastime years ago.

In the majority opinion, Justice Scalia noted that the First Amendment covers all forms of speech, regardless of the medium in which they appear. This contrasts with previous cases, which determined, on a case-by-case basis, whether individual mediums constituted “speech” and were therefore covered by the First Amendment. The Supreme Court had to specifically rule that motion pictures are covered by the First Amendment, and decades earlier, did the same for photographs.

Hopefully, this leads to a new approach in examining restrictions on speech – focusing less on the medium, and more on the substantive legal and constitutional questions involved. And even though I believe government restrictions on speech should be kept to a minimum, I recognize that reasonable time, place, and manner regulations on certain types of speech (such as large demonstrations) are warranted, as long as they are content-neutral (applied uniformly, without regard to the message being expressed).

However, the California law was a content-based restriction – a restriction on speech based on its content. Such restrictions are extremely difficult to justify constitutionally. Only a few acceptable content-based restrictions exist, and they include obscenity, fraud, and defamation. These games, no matter how violent they are, do not rise to the level of obscenity.

I’ve mentioned before, however, that many people in the community of videogame enthusiasts are somewhat self-defeating when they discuss legal matters. If you read online discussions about this case on sites that don’t normally discuss legal matters, you’ll see a lot of misinformed commentary, which fails to understand even the basics of First Amendment jurisprudence, or constitutional law. And that’s fine. To be honest, this stuff can get pretty boring sometimes, and most people don’t need to know much about it to go about their daily lives.

However, ignorant discussions that break down into an orgy of “nerd rage” provide easy ammunition for those who would prefer to censor the media. It lets them phrase the conversation around the immaturity of people who play video games, which, of course, means that video games aren’t “serious” art, meaning they aren’t entitled to the full protection of the constitution. They’re right about one thing: the vast majority of video games are definitely not serious art. They can be fun and entertaining, but very, very few of them can evoke the strong emotional reaction one might expect watching a great film, attending a symphony, reading an engrossing novel, or looking at a classic painting.

But, that’s not really the point. All forms of expression are protected by the First Amendment, even if they aren’t considered “serious” art.

And I’m not happy about this decision because I occasionally play video games. I’m happy about it because it represents another victory for freedom of expression. There will always be people who, given the chance, would censor artistic expression, for any number of reasons. And if we’re to keep them from doing so, we cannot start drawing arbitrary lines in the sand concerning what modes of speech we’re going to protect, and what we aren’t.