GLLS2007: What IF?

…on Gaming, Intellectual Freedom, and the Law with Katherine A. “Katie” Fallow, partner @ Jenner & Block.

“Video Game Regulation and the First Amendment”

Nine states have passed law that restricts the sale of video games with violent content.

Constitutional Framework

• Are video games protected expression?
  • Video game expression has grown considerably. Most courts have held that video games are protected expression
  • We’re looking at the content of the game, not the conduct

• Content-based regulation triggers strict scrutiny
  • Necessary to serve compelling state interest
  • Is narrowly tailored to serve that interest
  • The government carries the burden of proof

• Compelling state interest
  • Is the video game an incitement to violence? Does it contain speech directed to inciting imminent lawless action and is it likely to incite such action?
  • Thought control is not a legitimate state interest. Speech cannot be restricted based on the kind of ideas it might incite. This applies equally to minors.
  • Protecting psychological well-being of minors. Government must prove the alleged harm caused by a video game and the alleged solution.

• Standards have not been met
  • Methodolical issue: measuring children’s behavior after exposure to violent video games
  • Studies do not show that video games cause harm to the player or cause the player to commit violent acts
  • Studies do not show that video games are different from other media
  • Attempts to show “physiological” evidence of harm hae failed

• Vagueness problems
  • Constitution requires that the public be given notice of what speech is prohibited
  • How is “human” defined in the world of video games? What is “harm” if the player doesn’t actually die?

• “Violent” video games are not obscenity
  • Obscenity is constitutionally limited to sexually explicit speech/explicit sexual depictions

• In summary:
  • Every restriction has been struck down, including six in the past two years
  • Recent attempts to incorporate a rating system in state restrictions on games has also been invalidated
  • First Amendment principles make video game laws impermissible

Fallow recommends the Entertainment Software Rating Board (ESRB) and Entertainment Software Association (ESA) Web sites for information and video game guidance.