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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.


23 July 2007 Posted by | gaming in libraries, glls2007, intellectual freedom | Leave a comment