The First Amendment is something that, despite being an US principle, many all over the world
will be familiar with.
This enactment is responsible for maintaining free speech in the country and generally allows
citizens to express themselves without fear of prosecution.
Video games can be seen as a form of expression and speech, and so, this poses the question
of whether games are protected by the first amendment too.
The answer to this would, of course, have grave consequences for not just US gamers
but the entire industry and so today's video will be taking a look at this and whether
video games are protected by the first amendment.
To begin though, firstly, let's take a more detailed look into what exactly the first
amendment is.
The first amendment is an addendum to the US constitution which reads:
“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.”
Among the many rights it protects is the freedom of speech.
Initially 1st amendment protections only applied to the actions of the US federal Government.
However in 1868, the US congress signed the 14th amendment which states in part:
“No State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.”
In what is known as the “incorporation doctrine” courts then ruled that the fourteenth amendment
extends constitutional limits on government, such as those in the 1st and 2nd amendment,
to state and local governments as well.
But it was not until the early eighties that US courts began to question whether the then
relatively new medium of video games are a type of speech.
The video game industry and their supporters argued that videogames are a type of media;
like movies, that tell a story though an interactive medium.
And those games contain a large amount of art, music and writing that fall under protected
speech.
Critics on the other hand argued that video games are not a form of speech, but are comparable
to games like bingo.
While written rules and a good deal of talking might be involved in bingo, this speech is
incidental to playing the game, and thus the government can regulate it.
They also argued that violent video games, like pornography, are obscene, and fall under
the obscenity exception to US free speech law.
The industry countered that violence and sexual obscenity are not the same thing, and that
there is no legal justification for treating them the same.
The ramifications of these arguments would have profound results on the industry, not
just in The US but in the world as a whole.
The US is the second biggest video game market in the world, earning over 25 billion dollars
in 2017.
Restrictions on games in the US would likely influence the types of games released elsewhere.
For nearly 28 years US courts struggled to answer these questions, and various courts
came up with very different answers until the issue was finally settled.
Whether video games constituted free speech was first addressed in 1983 in the case of
America's Best Family Showplace vs. City of New York.
At the time New York regulations prevented a business from operating more than four arcade
games or “common shows” without a license.
America’s Best Family Showplace filed suit, claiming in part that the city’s regulatory
scheme violated its first amendment rights.
Showplace argued that video games are a participatory fantasy experience involving both audio and
visual elements, comparing them to motion pictures.
However the court ruled that while entertainment was protected by the 1st amendment, it must
impart an idea or information.
Speaking for the court Judge Mc Laughlin wrote: “In no sense can it be said that video games
are meant to inform.
Rather, a video game, like a pinball game, a game of chess, or a game of baseball, is
pure entertainment with no informational element.”
The court ruled comparably in the 1983 case: Caswell vs. Licensing Commission for Brockton.
In their ruling the court stated that: “Although the affidavit indicates that video
games might involve the element of communication that is the sine qua non of First Amendment
protection — for example, a player may strive to shoot down invaders — this showing is
insufficient to demonstrate protected expression.”
While courts were not unanimous in this conclusion; for instance Oltmann v. Palos Hills determined
that video games deserve first amendment protection; it was for a time the accepted consensus that
video games were not protected by freedom of speech.
As a result, these early cases upheld restrictions on when and where video game arcades could
be operated.
However by the nineties, government concerns over video games began to shift as more realistic
and violent video games became wildly available.
In the year 2000 courts once again considered the issue of whether videogames constitute
a form of speech when the city of Indianapolis passed an ordinance requiring local arcades
to prevent the exposer of minors to violent video games.
The American Machine Amusement Association, a group that represents arcade distributers
and manufacturers sued the city seeking an injunction to block the law.
While lower courts sided with the city, in 2001 the Seventh circuit issued an historic
ruling that at least some video games qualify as speech under the first amendment, and that
furthermore they could not be restricted on account of violence because under US law only
sexual material can be classified as obscene.
Addressing the applicability of free speech law on violent video games, judge Posner wrote:
“Maybe video games are different.
They are, after all, interactive.
But this point is superficial, in fact erroneous.
All literature (here broadly defined to include movies, television, and the other photographic
media, and popular as well as highbrow literature) is interactive; the better it is, the more
interactive.”
The court also dismissed arguments that the state has an interest in preventing minors
from accessing violent material stating: “Now that eighteen-year-olds have the right
to vote, it is obvious that they must be allowed the freedom to form their political views
on the basis of uncensored speech before they turn eighteen, so that their minds are not
a blank when they first exercise the franchise.
And since an eighteen-year-old's right to vote is a right personal to him rather than
a right that is to be exercised on his behalf by his parents, the right of parents to enlist
the aid of the state to shield their children from ideas of which the parents disapprove
cannot be plenary either.
People are unlikely to become well-functioning, independent-minded adults and responsible
citizens if they are raised in an intellectual bubble.”
The decision in American Machine Amusement Association vs. Kendrick sent shock waves
through the US legal world; however some courts were hesitant to adopt it as precedent.
In April 2002 the court ruled in Interactive Digital Software Association vs. St. Louis
County.
that video games were not protected, writing: “This Court has difficulty accepting that
some video games do contain expression while others do not, and it finds that this is a
dangerous path to follow.
The First Amendment does not allow us to review books, magazines, motion pictures, or music
and decide that some of them are speech and some of them are not.
It appears to the Court that either a "medium" provides sufficient elements of communication
and expressiveness to fall within the scope of the First Amendment, or it does not.”
Later in 2002 the court ruled in favor of the industry in James v. Meow Media, Inc.
However it stopped short of saying video games are categorically protected.
Instead the court ruled that video games were only protected in so far as it affected the
nature of the lawsuit.
Writing for the court, Judge Boggs stated: “Our decision here today should not be interpreted
as a broad holding on the protected status of video games, but as a recognition of the
particular manner in which James seeks to regulate them through tort liability.”
However the tide soon began to turn.
When the previously mentioned Interactive Digital Software association vs. St. Louis
County was appealed to the 8th district court of appeals in 2003, they reversed the earlier
court’s ruling stating in part that: “If the first amendment is versatile enough
to "shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky
verse of Lewis Carroll," we see no reason why the pictures, graphic design, concept
art, sounds, music, stories, and narrative present in video games are not entitled to
a similar protection.
The mere fact that they appear in a novel medium is of no legal consequence.”
Cases in 2004 and 05, came to similar conclusions, and by 2006 the court noted in Entertainment
Software Association v. Granholm that: “The notion that video games are protected
free speech under the First Amendment is becoming widely adopted in Circuit Courts”
Despite these rulings the issue of violence in video games remained controversial in the
first decade of the 21st century and state governments continued their efforts to restrict
violent video games.
In 2005, California passed Assembly Bill 1179 to restrict the sale of violent video games
to minors.
The law used a variation of the miller obscenity test used to restrict the sale of pornography,
however in this case the test was modified; replacing sexual material with violence.
The law banned the sale of violent video games to anyone under eighteen and required labeling
beyond the ESRB.
Unhappy with the law, the Video Software Dealers Association: an advocacy group for the home
entertainment industry, filed suit; challenging the law’s constitutionality.
Both the district court and the 9th circuit ruled against the law; however California
governor Arnold Schwarzenegger was determined to defend the law and took the case all the
way to the Supreme Court.
In November of 2010 the supreme court of the United States heard oral arguments and on
June 27th, 2011, the court issued a 7 to 2 decision against the state of California.
Speaking for the majority Justice Scalia wrote: “California has tried to make violent-speech
regulation look like obscenity regulation by appending a saving clause required for
the latter.
That does not suffice.
Our cases have been clear that the obscenity exception to the First Amendment does not
cover whatever a legislature finds shocking, but only depictions of “sexual conduct,”
He further noted that Video games are protected by the 1st amendment, writing:
“Like the protected books, plays, and movies that preceded them, video games communicate
ideas—and even social messages—through many familiar literary devices (such as characters,
dialogue, plot, and music) and through features distinctive to the medium (such as the player’s
interaction with the virtual world).
That suffices to confer First Amendment protection.
Under our Constitution, “esthetic and moral judgments about art and literature … are
for the individual to make, not for the Government to decree, even with the mandate or approval
of a majority.”
With the court’s decision, the protected status of video games was secured.
Video games are protected by the 1st amendment, and furthermore there is currently no legal
ground to restrict violent video games under US obscenity law.
Had such laws been upheld, government could have heavily restricted the sale of games
to minors, and had the courts not defined video games as protected by the 1st amendment
it may have been possible to restrict or ban such games all together.
However, despite these rulings, some continue to seek restrictions for violent video games
and suggesting that things need revaluating.
This is something that continues into the present day and Censored Gaming is always
keeping a close eye on any new developments in this area.
If this is something you are interested in staying up date with, please make sure to
subscribe and, until next time, thank you for watching.