First Amendment Protections and Freedom of Expression

History

There were early cases, building on decisions that pinball machines were not included within the protection of the First Amendment, that exempted video games from First Amendment protection. These early games were simply seen as not containing the level of expression necessary for the First Amendment to come into play. Somewhat later, as the complexity of video games increased, some courts began to say that at some point the level of expression would be such that video games should be protected. As late as 2002, a federal district court concluded that video games did not enjoy protection (see Interactive Digital Software Ass’n v. St. Louis Co.). Although the trial court decision was reversed, with the appellate court seeing video games as presenting sufficiently good stories as to be protected, there may be something in the lower court’s position that the government, and courts, should not distinguish among stories based on perceived value. Nonetheless, it is clear from the 2011 U.S. Supreme Court video games decision in Brown v. Entertainment Merchants Association that video games are protected by the First Amendment. Perhaps the more interesting issue at this point is whether less sophisticated games, and even pinball machines, can be left outside the scope of constitutional protection.

Limiting Children’s Access to Video Games

The fact that a medium—speech, books, films, or video games—may be protected does not mean that [Page 164]all restrictions or abridgments are disallowed. For example, film is protected, but obscene films may be restricted or banned. Actual speech of a political nature is at the core of the First Amendment, but where it presents a “clear and present danger” of intentionally provoking imminent lawless action, it too may be prohibited. These examples point to two approaches to the recent issue of justifying limits on violent video game play by children. One approach has been to argue that, while video games may be protected, the violent content of certain games takes them outside the protection of the First Amendment. The other has been to argue that there is sufficient harm in children playing these games that play may be banned. Both approaches can apply to violence in any medium, and both played roles in the Supreme Court’s Brown decision.

The state of California claimed that it could limit children’s play in the same way that a number of states limit children’s access to sexual material, even if that material would be acceptable for adults. The Supreme Court had upheld, in Ginsberg v. New York (1968), a statute that prohibited the distribution to children of sexually indecent material, even though the material was not obscene for an adult audience. In California’s view, the state should have a similar opportunity to shield children from depictions of violence. A similar position had been accepted by the trial court in a case growing out of restrictions on violent video game play by children in arcades in Indianapolis (see Amusement Mach. Ass’n v. Kendrick), although the trial court’s decision upholding the limitations was later reversed on appeal.

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