T h e U t o p i a n L i b r a r y

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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.

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