Video Games as Protected Speech: From Obscurity to Unanimity

JURIST Guest Columnist Robert O'Neil of the University of Virginia School of Law says that video games, an area of expression that was once thought to not qualify for constitutional protection, are now rightfully and unanimously accepted as warranting First Amendment protection...
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Now that the dust has settled over the violent video game case, it might be timely to revisit a truly pivotal First Amendment issue that virtually escaped notice by scholars, courts and litigants: why constitutional principles of free expression should protect any video games, violent or benign. To be sure, that issue never reached the Supreme Court because California (like other states that have argued unsuccessfully for regulation of graphic violence) simply conceded that such games were protected under the First Amendment. Nonetheless, had anyone wished to question this long-settled premise, a fascinating debate could well have been revived and some striking differences among electronic media might well have re-emerged.

A brief historical and personal footnote may anchor this discussion. Thirty years ago, I rashly offered in a keynote speech to the Wisconsin State Bar to address the status of video games. The context was quite different in those early days; Mortal Kombat and its progeny lay far in the future as young gamers relished such seemingly simplistic challenges as PacMan, Brick-Breaker and the like, demanding what today seems quite limited skills. What was startling to me in the summer of 1981 was not the prospect of regulating violence but the disdain with which my proffered topic was greeted by my fellow Wisconsin attorneys and judges attending the annual conference.

Why, they asked, would anyone ever seriously confer First Amendment protection on so clearly unmeritorious a medium? Video games, they insisted, were just for kids, and besides were pure entertainment, devoid of any worthier content. Undaunted, I pressed on, noting that new media of any type merit constitutional protection until and unless a recognized exception to free speech preempts it. Moreover, as even a PacMan fan would have recognized, the video industry was already quite creative both in designing and marketing new electronic games. Clearly those who had already created and programmed such games, and the systems to test young players' skills at the controls, deserved copyright if not constitutional protection. Finally, even the early video games were no worse than pure entertainment in more traditional forms. Yet as my family and I left Lake Geneva that Saturday night, I vowed revenge to my skeptical Badger colleagues.

At that time, few if any legal scholars deemed video games serious enough to warrant constitutional recognition. Only the Interactive Digital Software Association (as it was then called) seemed to care in the least, and it could have been viewed as tainted by a tinge of self-interest. I believed, however, that their position was sound, and thus began collaborating, long before such media groups became fashionable with more elegant names like Video Software Dealers Association and Entertainment Software Association. A few courts in the mid to late 1980s reluctantly conceded that video games might possibly merit First Amendment protection, leaving for the moment the seemingly harder question whether violent content deserved stricter regulation to protect young viewers. By the 1990s, a few venturesome scholars began developing the shell of a constitutional claim for the video industry.

All this now evokes ancient history. No court in the last decade and a half has voiced any doubt that video games deserved First Amendment protection, leaving possible doubts only as to whether violent content could be analogized to sexually explicit imagery for purposes of shielding minors. Justice Scalia, in his forceful majority opinion in the recent Brown v. Entertainment Merchants Association case, declared unequivocally that "new categories of unprotected speech may not be added to the list by a legislature that concludes certain speech is too harmful to be tolerated." None of the justices, even the two dissenters, had any reservations about this central premise.

Thus, as one commentator noted a few days ago, the Brown judgment is "an electrifying decision." What is truly "electrifying" is how far the court has come this term by unanimously finding First Amendment protections for video games. The appealing analogy between regulating violent video games, for example, and banning animal cruelty videos, is surely defensible on First Amendment grounds but is far from obvious. Conveniently overlooked within that analogy were such compelling factors as the special regulatory interest in protecting minors and the solicitude (embraced by Justice Alito alone) for helpless animals. Thus, the convenient leap from the ruling in United States v. Stevens to Brown simply subsumed potential dissonance in the interest of pervasive protection for freedom of expression as a core constitutional concept.

In fact, a Court that is now fully committed to free speech conveniently avoided a couple of potentially confusing byways. Within the last decade, the justices in Virginia v. Black did in fact "add [at least one] new category of unprotected speech" in sustaining the substance of Virginia's cross burning law in so much as it was designed to prevent intimidating speech. While invalidating various types of hate-speech laws, the Court in RAV v. St. Paul strongly resisted pressures that have been irresistible in other developed countries (such as bans on anti-Semitic, sexist, racist and homophobic speech). Perfect consistency would, of course, have relegated cross-burning laws to similar invalidation, yet we know that did not happen. We have just now learned that Mortal Kombat creators enjoy a strong measure of First Amendment protection that intimidating cross-burners apparently may not claim. The analogy is far from perfect, in either direction, but does seem to warrant a degree of consistency that escapes the untrained eye.

Finally, let me make clear that I fully applaud the Court's ruling in the video game case. As the author or co-author of several amicus briefs in the federal appeals courts, and ultimately in the Supreme Court, on this very issue, I would endorse Justice Scalia's conviction that violent entertainment may not be regulated or banned, under a proper standard of strict scrutiny, for the reasons and in the manner that California and other states have done. Additionally, I would resist the qualifications and exceptions embraced by the two concurring justices. A clear majority of the Court has, moreover, categorically foreclosed any form of comparable or parallel regulation. For those of us who, three decades ago, claimed similar recognition for early entries like PacMan and Brick-Breaker, this is seems a welcome if far from inevitable outcome.

Robert O'Neil is a Professor of Law Emeritus at the University of Virginia School of Law. He is also the director of the Thomas Jefferson Center for the Protection of Free Expression and teaches classes on free speech, freedom of the press, and on church and state. He served as the sixth president of the University of Virginia from 1985 to 1990, and is a former clerk to US Supreme Court Justice William Brennan.

Suggested citation: Robert O'Neil, Video Games as Protected Speech: From Obscurity to Unanimity, JURIST - Forum, July 10, 2011, http://jurist.org/forum/2011/07/robert-oneil-video-games.php.

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