Violence In Video Games Protected By The First Amendment
July 15, 2004 by David Spratley
(This is an archived case summary)
Washington State introduced legislation penalizing the distribution of violent video games to minors. Video game manufacturers, distributors, retailers and software associations challenged the legislation on the ground that it violated the First Amendment right to free speech. The bill prohibited the rental or sale to anyone under age 17 of computer and video games containing depictions of violence against law enforcement officers. The law in question sought to regulate the plaintiffs' speech based solely on the content of video games (as opposed to the time, manner, and place in which it is prohibited). Content-based regulations are presumptively invalid and are rarely permitted.
In the United States, the party claiming protection from the First Amendment must show that the conduct at issue expresses some idea or thought. Communications designed merely to entertain, rather than to impart information or debate public affairs, are protected by the constution. In evaluating a person's claim that conduct is expressive, a Court considers "whether an intent to convey a particularized message is present, and whether the likelihood is great that the message would be understood by those who viewed it" (Nordykev.King, 319 F.3d 1185, 1189 (9th Cir.2003).
The Court in this case stated that where the early generations of video games may have lacked the requisite expressive element, being little more than electronic board games or computerized races, current games involve intricate, "if obnoxious," story lines, detailed artwork, original scores, and a "complex narrative". The Court found that these games are expressive and are protected by the First Amendment.
The defendants argued that even if the video games captured by the legislation are expressive, they fall into one of the few categories of speech that have been historically unprotected, namely, obscenity. Though the Court recognised that graphic depictions of depraved acts of violence (such as the murder, decapitation, and robbery of women in Grand Theft Auto Vice City) fall well within the more general definition of obscenity, it nevertheless held that when used in the context of the First Amendment, the word "obscenity" means material that deals with sex. The U.S. Supreme Court has held that state statutes designed to regulate obscene material must be drafted narrowly to cover only "works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value" (Miller v. California, 413 U.S. 15, 18 n. 2, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973)).
The defendants argued that the Court should expand the definition of obscenity to include graphic portrayals of violence. The Court held that historical justifications for the obscenity exception do not apply to depictions of violence. The Court reasoned that the punishment of lewd speech has "very little, if any," impact on the free expression of ideas, whereas depictions of violence "have been used in literature, art, and the media to convey important messages throughout our history, and there is no indication that such expressions have ever been excluded from the protections of the First Amendment or subject to government regulation." The Court declined to expand the narrowly-defined obscenity exception to include graphic depictions of violence.
Finally, the defendants argued that the state should be permitted to determine what speech or ideas are wholesome enough to disseminate to minors, even if the speech is protected under the First Amendment. The Court, after reviewing the case law, held that the defendants cannot prohibit the dissemination of otherwise protected speech simply because the audience consists of minors. The right to free speech protected by the First Amendment is no less fundamental if you are fourteen than if you are forty.
The Court held that because the video and computer games at issue in this litigation were expressive speech protected by the First Amendment, strict scrutiny applies. Under this analysis, the law will be upheld only if defendants can show that the regulation is necessary to serve a compelling state interest and that it is narrowly tailored to achieve that interest.
a. Compelling State Interest
The defendants argued that "[t]he Legislature was motivated to curb hostile and antisocial behaviour of youths, including violence and aggression toward law enforcement officers." Federal courts have repeatedly recognized that the state has a legitimate and compelling interest in safeguarding both the physical and psychological well-being of minors. However, simply identifying a compelling state interest is not enough.
If the state was able to show that the psychological well-being of Washington's youth was in genuine jeopardy, it had the additional burden of showing that the regulation is narrowly tailored to address that problem "without unnecessarily interfering with First Amendment freedoms" (Sable Communications of California Inc. v. F.C.C., 492 U.S. 115, 109 S.Ct. 2829 (1989)).
The Legislature was apparently attempting to address the problem of the game-related increase in hostile and antisocial behaviour in minors, particularly toward law enforcement officers. The defendants produced expert reports and a number of studies which found a correlation between a minor's exposure to depictions of violence and the development of aggressive tendencies and anti-social behaviours. The plaintiffs produced their own expert report, a like number of studies, and a presentation by the State's Department of Health which concluded that no causal connection between playing violent video games and real-life violence has been established. Having reviewed all of the evidence, the Court found that one could reasonably infer from the defendants' evidence that the depictions of violence with which we are constantly bombarded in movies, television, computer games, interactive video games, etc., have some immediate and measurable effect on the level of aggression experienced by some viewers and that the unique characteristics of video games makes them potentially more harmful to the psychological well-being of minors than other forms of media.
Nevertheless, the Court stated that "the current state of the research cannot support the legislative determinations that underlie the Act because there has been no showing that exposure to video games that trivialize violence against law enforcement officers' is likely to lead to actual violence against such officers." Few of the studies on which the defendants relied had anything to do with video games, and none of them was designed to test the effects of such games on the player's attitudes or behaviour toward law enforcement officers. In the final analysis, given the state of the existing research, the Court found that the Legislature's belief that video games cause violence, particularly violence against law enforcement officers, was "not based on reasonable inferences drawn from substantial evidence."
b. Narrowly tailored to further compelling state interest
Where strict scrutiny applies, courts strike down speech restrictions "[i]f a less restrictive alternative would serve the Government's interest" (United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 818, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000)). Here the Court found that even if the state's interest in preventing video game-related violence toward law enforcement officers was compelling, the limitations imposed by the law "impact more constitutionally protected speech than is necessary to achieve the identified ends and are not the least restrictive alternative available."
The law was supposed to regulate all "video or computer game[s] that contain[ ] realistic or photographic-like depictions of aggressive conflict in which the player kills, injures, or otherwise causes physical harm to a human form in the game who is depicted, by dress or other recognizable symbols, as a public law enforcement officer." Where the victim is identified as a law enforcement officer the distribution of games that contain even relatively "common forms of violence", reflect "laudable struggles against evil authority figures", or have very limited violent content, is restricted. In short, "the regulation of speech at issue here is not limited to the ultra-violent or the patently offensive and is far broader than what would be necessary to keep filth like Grand Theft Auto III and Postal II out of the hands of children."
Having found that state did not show that the legislation was likely to curb anti-social aggression in minors in a direct and material way and that the legislation was not the least restrictive alternative available, the Court outlined key considerations in analyzing future attempts to regulate video games on the basis of their content whether the regulation covers only depraved or extreme acts of violence that violate community norms; whether the regulation prohibits depictions of extreme violence against all innocent victims, regardless of their viewpoint or status; and whether social scientific studies support the legislative findings at issue.
Legislative enactments must "give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly" (Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). The Court found the language of the challenged law too broad as it covered all "video or computer game [s] that contain[ ] realistic or photographic-like depictions of aggressive conflict in which the player kills, injures, or otherwise causes physical harm to a human form in the game who is depicted, by dress or other recognizable symbols, as a public law enforcement officer." Would a game built around "The Simpsons" or the "Looney Tunes" characters be "realistic" enough to fall within the legislation? Do the Roman centurions of "Age of Empires" qualify as "public law enforcement officers"?
When pressed at trial, defence counsel was unable to determine whether firefighters were "public law enforcement officers," suggesting that such issues should be determined by the state courts. However, the court found this line of reasoning unsatisfactory as there "is a substantial risk that [the] plaintiffs' exercise of their First Amendment rights would be chilled while each issue of interpretation is presented to the state courts, thereby depriving plaintiffs of the very rights they seek to protect in this suit." Given the fact that rights of free expression were at stake, the Court found that the legislation was unconstitutionally vague.
Judgment available here.
Video Software Dealers Association v. Norm Maleng