Video Games Protected Under the First Amendment

The First Amendment grants liberties to all forms of expression yet when it comes to video games there is controversy. This stems from a ruling according to Hudson, in 1989 City of Dallas v. Stanglin found them akin to board games thus not entitled to protection under the constitution. Of course when this ruling was made pong was still standard gaming. Games have matured over the years and once again the issue has been borough up whether video games should be granted protection under the constitution. I plan to find that video games should in fact receive First Amendment status and be treated as such by the United States Supreme Court.

Just so we all know:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
- The First Amendment to the U.S. Constitution

Hudson says the problem started with the ruling of the judge in City of Dallas v. Stanglin, "it is possible to find some kernel of expression in almost every activity ... but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." This set the stage for any later First Amendment issues to be shot down. Lumping all video games together makes for difficult work, yet this court found it easy to compare Pac Man and N.A.R.C. One you eat dots for points the other you work for the DEA stopping drug dealers and terrorists. Both games were very popular at the time of the ruling.

Interactive Digital Software Association v. St. Louis County states that video games have been found to harmful to minors and are obscene materials. They then blocked the sale of video games to minors. Finding that video games are not protected by the First Amendment. The 8th U.S. Circuit Court of Appeals reversed the district court's ruling in June 2003 saying, "the Supreme Court has long emphasized that the First Amendment protects entertainment, as well as political and ideological speech...If the First Amendment is versatile enough to shield the paintings of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky of Lewis Carroll, we see no reason why ... video games are not entitled to a similar protection?" (Eighth Circuit Rules First Amendment Protects Video Games)

Almost all other form of entertainment are covered under the umbrella of the First Amendment movies, music, books, art, etc. Video games have parts of all of these. The music in video games are protected under the constitution. They are graphic design art is taught in colleges and is comparable to many revered art forms. Like movies video games have a story with characters and traditional plots found throughout literature. Hero must save the day is usually the standard plot of all video games. Yet in light of all these standard themes that are seen as protected the Supreme Court shies away when it comes to the matter of video games.

In James v. Meow Media Inc. the parents of three murdered girls banded together after a school shooting a sued video game makers, movie producers, plus others saying they were responsible for high school student Michael Carneal's actions. The U.S. Supreme Court refused to hear the case I would imagine for the same reason the 6th U.S. Circuit Court of Appeals dismissed the suit. In the eyes of the court it presented, "First Amendment problems" (Hudson, United State Court of Appeals for the Eighth Circuit). They cited non expressive features since the player does control the game. I find this matter of control strange because when you play a game you play it your way and it reflects on your sense of style. If you write down everything you do in a game to the last detail it is protected, but the thing you are doing it with is not. Both are the same expression to me yet the court feels it is not ready to touch the issue.

A far stronger comparison of literature to video games comes from Judge Richard Posner, "The House of the Dead. The player is armed with a gun--most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player's duties is to protect those unfortunates from renewed assaults by the zombies. His main task, however, is self-defense. Zombies are supernatural beings, therefore difficult to kill. Repeated shots are necessary to stop them as they rush headlong toward the player. He must not only be alert to the appearance of zombies from any quarter; he must be assiduous about reloading his gun periodically, lest he be

overwhelmed by the rush of the zombies when his gun is empty. Self-defense, protection of others, dread of the "undead," fighting against overwhelming odds-- these are all age-old themes of literature, and ones particularly appealing to the young. The House of the Dead is not distinguished literature" (United States Court of Appeals For the Seventh Circuit). While giving wonderful incite to a great game the Judge also hits all key points: games are akin to literature, express themes, express ideas, and express morals.

Even if there was a link found between video games and violence being that video games should be protected under the First Amendment would have to be restricted in the smallest degree possible. Unlike now states and cities are trying to ban video games sales outright to limited them to the consent of an adult. Stores themselves may choose to do this because they are a private business and can control there sales as they please. If video games were protected they would have to find a way to restrict games in the least hindering way possible. Enforcing such bands would also be a terrible burden because it is doubtful maybe people would even respect the law.

The problem of video games and their right to free speech needs to be address by the United States Supreme Court and get it done with. The court needs to make a ruling so that makers and consumers know where games fall. Otherwise this leaves the field open to constant attack because their status is still rather nebulous. Games do indeed meet all the requirements for protection, but games have become the modern social scapegoat. Any endorsement would mean political suicide because they've being blaming video games for far to long to stop and try to grant them protections. Once there is a new monster harming your children video games will receive the status they deserve.

Bibliography Page

"Eighth Circuit Rules First Amendment Protects Video Games." CFIF. 02 May 2005.

Hudson, Davis L. "What's on the Horizon." First Amendment Center. 02 May 2005.

United States Court of Appeals For the Seventh Circuit. "American Amusement Machine Association, et al. v. Teri Kendrick, et al." United States District Court for the Southern District of Indiana. 02 May 2005.

United State Court of Appeals for the Eighth Circuit. "Interactive Digital Software Association v. St. Louis County." United States District Court for the Eastern District of Missouri. 02 May 2005.