Sex, Lies and Videogames: 1
This article will explore the current efforts to control dissemination of graphic videogames at both the state and federal levels, and will discuss how such efforts have fared in the courts. This study will then give the reader an evaluation of the industry's future, and some suggestions as to how parental concerns can be balanced with the rights of game developers.
The Reality of Virtual Reality
Videogames have evolved from the primordial "Pong" to modern virtual reality in a relatively short time. As the little green aliens on the screen began to take on more lifelike characteristics, games started to deal with increasingly adult themes. Videogame developers were no longer hindered by the perception that "videogames are for kids," and they began to embrace the "darker" side of human activity. Today's games fascinate, terrify, repulse, and sexually arouse users with such intensity that some claim that it threatens the ability of users to separate fantasy from reality.2
Online role playing games such as Second Life®™ allow users to create a virtual alter ego, and engage in the entirety of human activity, from land acquisition to dating – from sex to serial killing. It is only a matter of time before game developers will begin exploring deeply taboo subjects, such as pedophilia, incest, or rape. This potential has the videogame industry stepping back to ask itself whether any content boundaries exist, or if free expression rights should allow for examination of all these topics. At a recent sex and videogames conference, developers, attorneys, and sex therapists queried whether some degree of voluntary industry regulation would be appropriate in order to ward off government censorship.3 Opinions vary widely on this issue, and consensus appears to be elusive. The certainty is that videogames are destined to reflect elements of the human condition never contemplated by the developers of the innocuous Pong, and some backlash is likely to result.
Previous Legislative Attempts
Already, six states have passed bills that restrict the sale of violent or sexually-explicit videogames.4 Similar bills are pending in several others.5 Fortunately for the videogame industry, the courts have thus far been uniformly protective of the game developers free expression rights, and have struck down these laws on First Amendment grounds. Importantly, the courts have unanimously held that videogames constitute protected "speech" under the Constitution, particularly given the extensive themes and artistic/literary content included in modern games.6
State lawmakers have struggled to define what constitutes a "violent" videogame, and how such determinations should be made. Some have focused on specific acts of violence towards police officers, while others have attempted to use a modified "obscenity" test; focusing on whether the game has serious literary, artistic, political, or scientific value with respect to what is appropriate for minors.7 However, First Amendment jurisprudence dictates that the government may only regulate the sale and distribution of erotic, as opposed to violent, media. Only when an expressive work crosses a certain line of eroticism will the courts approve restrictions on otherwise protected speech.8 This counterintuitive dichotomy has served to frustrate many legislators, and their attempts to restrict the sale of violent videogames exclusively to adults have met with crushing defeats in the courts.9 It is unlikely, however, that this string of legal victories will continue unbroken. At some point, lawmakers will find the "sweet spot" of regulation, and pass a law that will be upheld.
The first case to recognize the constitutional protections afforded to videogame content was Interactive Digital Software Association v. St. Louis County.10 The case was initiated as a challenge to St. Louis County's ordinance restricting the sale of violent videogames to minors. After denying the industry's motion for summary judgment, the District Court dismissed the complaint and upheld the Ordinance's constitutionality. The Eighth Circuit Court of Appeals reversed, on the grounds that the Ordinance violated the First Amendment.11 The Appellate Court focused on the fact that the county attempted to restrict access to violent videogames based specifically on their content, along with the alleged harms potentially befalling those who play them.12
Where laws seek to regulate speech based on content, the courts are bound to analyze the laws under a very stringent method of legal review known as "strict scrutiny." Under this test, the government bears the heavy burden of demonstrating that the law is justified by a "compelling governmental interest," and that the least restrictive means have been used to achieve the interest.13 The strict scrutiny test has been the downfall of numerous videogame laws, given the inability of the state governments to demonstrate any actual "harm" resulting from violent videogame play, as would be necessary to satisfy the state's initial burden. In case after case, the state or local government seeking to justify the videogame restriction failed to come forth with any convincing evidence demonstrating that playing videogames causes any discernible harm to either children or adults.
In the next legal challenge, Video Software Dealers Assn. v. Maleng,14 the plaintiffs, including an industry trade association, challenged the State of Washington's ban on selling violent videogames to minors.15 The Washington statute prohibited only violence against a "public law enforcement officer."16 In attempting to justify the law, the State attempted to argue that the violent content regulated by the law fell into the category of "obscenity" and was "harmful to minors," under existing legal standards. However, the court rejected the invitation from the state to expand the definition of "obscenity" or "harmful materials" to include violence.17 In addition to faulting the government for failing to establish a sufficient governmental interest in regulating violence, the court invalidated the law based on the fact that it was unconstitutionally vague, in that it failed to precisely identify the range of videogames the State sought to regulate.18
Later challenges met with a similar fate: The State of California passed Cal. Civil Code § 1746, restricting the sale of violent videogames, and requiring that the games carry a particular label identifying them as such. The content regulated under the Act involved any depictions of "killing, maiming, or assaulting of any image of a human being."19 The District Court threw out the law, holding that while the Statute was not unconstitutionally vague, it likely violated the First Amendment due to the government's failure to establish a compelling state interest in protecting minors from violent videogame content.20
Illinois jumped into the fray, passing a statute prohibiting the sale of violent and sexually-oriented videogames to minors, requiring forced labeling, prohibiting self-checkout procedures, and requiring warning signs near points of sale.21 In ruling on the Entertainment Software Association's Motion for Preliminary Injunction against the law, the court noted that the State did not submit sufficient proof that violent videogames incited lawless action, aggressive behavior, or "brain damage" (as alleged by the State).22 The court ruled that the State's ability to regulate violence is limited to media inciting imminent lawless action.23 However, the State's mere desire to censor violent videogame content was insufficient to support a legitimate governmental interest, as required to support the legislation.23 A similar ruling resulted from the First Amendment challenge to Michigan's violent videogame legislation, which was enjoined in November 2005, on First Amendment grounds.25
As a result of these legal (and other) challenges, it is now well-established that modern videogames are entitled to full First Amendment protection. This is significant since regulations impacting speech based on its content are presumed to be unconstitutional, and governed by a completely different set of legal rules and principles than legislation impacting just about any other topic. Consistently, state and local governments have faltered when attempting to establish a causal link between videogame violence and real world aggression – particularly in children. The anecdotal observations by sociologists and psychologists in this regard have thus far been insufficient to justify a ban on the sale of expressive materials, even to children.
In part two, we'll take a look at what the future holds.
Lawrence G. Walters, Esq., is a partner in the national law firm of Weston Garrou, DeWitt & Walters, www.FirstAmendment.com. He has been practicing for over 18 years, and represents clients involved in all aspects involved in the video gaming industry. He recently launched www.GameCensorship.com to serve as a clearinghouse for information relating to videogame censorship efforts. Nothing contained in this article constitutes legal advice. Please consult with your personal attorney regarding specific legal matters. Mr. Walters can be reached at Larry@LawrenceWalters.com, or via AOL Screen Name: "Webattorney."
(1) Robert Corn-Revere, "New Technology and the First Amendment: Breaking The Cycle of Repression," 17 Hastings Comm. & Ent. L.J. 247, 264 (1994).
(2) C. Branch, "Games, Fantasy, or Reality?" Watchman.org; K. Gagne, "Moral Panics Over Youth Culture and Video Games," Worcester Polytechnic Institute (April 27, 2001).
(3) Evergreen Events, Sex and Video Games, www.sexandvideogames.com (June 2006).
(4) The jurisdictions which have passed such legislation are California, Illinois, Michigan, and Washington, along with Indianapolis, Indiana, and St. Louis, Missouri.
(5) Florida, Utah, Maryland, Virginia, Louisiana, Oklahoma
(6) Interactive Digital Software Association v. St. Louis County, Missouri, 329 F 3d 954 (8th Cir. 2003); Entertainment Software Association v. Blagojevich, 404 F. Supp. 2d 1051 (N.D. Ill. 2005)
(7) Compare Cal. Civil Code § 1746 (violent = "killing, maiming, or assaulting any image of a human being.") with 720 Il.Cs. 5/12B-15 (violent = "human on human violence") with RCW 9.91.180, Washington HB No. 1009 (violence = "any violent act against a 'public law enforcement officer'").
(8) Miller v. California, 413 U.S. 15
(1973); Reno v. ACLU, 521 U.S. 844
(1997); U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803
(9) See fn. 6, supra.
(10) 200 F.Supp.2d 1126, 1128
(E.D. Mo. 2002), rev'd 329 Fed 3d 954, 960
(8th Cir. 2003), reh'g en banc den.
(8th Cir. 2003).
(11) Id. at 329 F.3d 957
(finding "no reason" why a "novel medium" such as videogames are not entitled to the same protection as other speech.)
(12) 329 F.3d at 960.
(14) 2004 WL 1609141
(W.D. Wash. 2004).
(15) RCW 9.91.180, Washington HB No. 1009
(17) Maleng, supra.
(19) Cal. Civil Code § 1746.
(20) Videogame Software Dealers Ass'n v. Schwarzenegger, 401 F. Supp. 2d. 1034
(ND Cal. 2005).
(21) 720 ILCS 5/12 B. 15.
(22) Blagojevich, supra.
(25) Entertainment Software Ass'n v. Granholm, 426 F.Supp.2d 646 (E.D. Mich. 2006).