First Amendment Protection Accorded To Video Games

Video Game Law Blog

January 01, 2002

On November 22, 1997, thirteen-year-old Noah Wilson died when his friend Yancy stabbed him in the chest with a kitchen knife. Noah's mother, Andrea Wilson, sued Midway Games, Inc., alleging that at the time Yancy stabbed Noah, Yancy was addicted to Midway's “Mortal Kombat” video game, and that Yancy was so obsessed with the game that he believed he was the “Mortal Combat” character “Cyrax”.

Wilson claimed that Midway's design and marketing of Mortal Kombat caused her son's death. She alleged that she was entitled to damages under theories of negligent and intentional infliction of emotional distress, product liability, unfair trade practices, and loss of consortium. This summary focuses on the issue of negligent and intentional infliction of emotional distress.

Midway claimed that both the Connecticut and U.S. constitutions bar an action to recover damages from the maker of a video game, when the basis for liability is alleged to be the expressive content of the game. The Court held that “although Wilson is a private party seeking legal redress on a common law theory of liability, the First Amendment nonetheless has bearing and applicability here, as the State of Connecticut cannot provide a remedy, either by its common law or by statute, that violates Midway's free speech rights.” The negligent and intentional infliction of emotional distress claim was precluded by the First Amendment.

First Amendment Protection

While a video game that only simulated a pinball machine would not be protected speech, the Court held that “those that are analytically indistinguishable from other protected media, such as motion pictures or books, which convey information or evoke emotions by imagery, are protected under the First Amendment.”

The question then becomes which criteria “Mortal Kombat” met under the allegations in Wilson's complaint. In Wilson's own words, “the [interactive] technology utilized in [Mortal Kombat] was designed to have an immediate and lasting impact on the senses of the users as they used the product, this causing said users to feel exhilarated to such an extent that they would become obsessed by and addicted to the violent actions they were led to believe they were actually performing.”

Taking Wilson's allegations as true, the Court concluded that “Mortal Kombat”, as Wilson described it, was protected First Amendment speech. Wilson's allegations about the game, namely that it presented violence as a problem-solving technique and encouraged players to “act out” the violence they see on screen, demonstrated that her suit targeted the expressive elements of the game its plot (i.e., the fact that advancing to different levels of the game requires increased violence), its characters (all of which are alleged to be violent), and the visual and auditory milieu in which the story line is played out (one character's “finishing move” or method of killing opponents is “tearing off his opponent's head leaving his spinal cord still dangling”). What Wilson alleged as having warped Yancy's mind is “not a pinball machine, board game or sport; rather, it is a gratuitously violent cross between a comic book and a Saturday morning cartoon, with the player having some control over the sequence of events and choice of weapon-wielding characters.”

Even accepting Wilson's allegations that Mortal Kombat caused violence and physical harm to be visited upon her son, the Court held that the First Amendment precludes Wilson's action for damages unless Mortal Kombat's images or messages are “directed to inciting or producing imminent lawless action and [are] likely to incite or produce such action” (Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969)). Midway's speech, an interactive video story depiction in game form, was not alleged to be this sort of incitement. Wilson claimed only that Midway intended to addict players, and knew or should have known that its conduct would bring about harm. The Court concluded, therefore, that the First Amendment was a complete bar to Wilson's claims for negligent and intentional infliction of emotional distress.

The case is available here .

Wilson v. Midway Games
2002, US Dist. Ct., Conn.
198 F. Supp. 2d 2002
KEYWORDS: freedom of speech – violence – negligence – intentional infliction of emotional distress

Summary by Arsen Krekovic