If you’re a gamer, or have even a passing interest in video games, you’re probably familiar with the debate over whether or not video games can be considered “art.” Of course, the people who engage in this debate can’t even agree on a definition of the word “art,” which makes any resolution of the question pretty much impossible.
However, one related question that people have debated for as long as video games have existed, and has been addressed by the courts in recent years, is whether or not the First Amendment’s guarantee of free speech applies to video games.
After all, there’s little question that it applies to books, films, plays, photographs, music, and virtually every other expressive medium in existence.
However, there has been some question about whether or not the protections afforded to other mediums apply to video games. While the answers to the questions “are games art?” and “does the First Amendment apply to games?” are not directly dependent on one another (there is no legal definition of “art,” so you don’t need to determine whether or not games are art in order to determine if the Constitution protects them), they are somewhat related.
For example, if a federal court rules that the First Amendment protects video games, essentially freeing game makers to tell whatever types of stories they want, in whatever manner they want, that will likely serve as a big step for the general public to accept games as a “real” art form.
So, that’s the question: are video games considered “speech” for the purposes of the First Amendment? And if so, what does that actually mean for them as a medium?
First of all, I should lay out what the First Amendment actually says about speech. It says “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 Supreme Court has long held that the right to say whatever you want, whenever you want, is not absolute. For example, defamation, fraud, and incitement of violence are all acts that can be carried out with words alone, so they arguably constitute “speech.” However, it’s well-accepted that the First Amendment was not meant to protect such activities.
The Supreme Court has also held that regulations of the time, place, and manner of speech (for example, requiring organizations to get permits before staging a march down a public street) are generally allowed.
However, any restriction on the content of speech is very difficult for the government to justify in court.
The state of California found this out the hard way when they passed a law which would have banned game retailers from selling M-rated games to anyone under the age of 18, and required such games to have a large label on their cover that read “18+.”
This law was challenged in a federal court, and eventually made its way up to the Supreme Court. The Court held that the law was unconstitutional, because it amounted to a content-based restriction on speech.
So, the short answer to the question posed in this article is, yes, the right to free speech does apply to video games.
However, it’s important to note that the right to free speech only restricts the actions of the government, not private parties.
So, while it’s clear that states cannot pass laws that ban the sale of certain video games to certain groups of people (such as minors), that doesn’t mean that a video game retailer has to sell you a game if it doesn’t want to.
While game ratings are not the law, many retailers (responsibly, in my opinion) have a strict policy against selling M-rated video games to children. If you attempt to buy such a game, and are asked for I.D., or the sale is refused outright, you won’t be able to seek any legal relief, at least not under the First Amendment.
Because video games are a relatively new medium, and as developers use them to tell increasingly mature and complicated stories, it’s likely that we’ll see more high-profile cases involving video games and free speech in the future. The fact that a court has held that the right to free speech applies to games is a big step. However, it’s unlikely that the debate is going to end there.
John is a writer for LegalMatch.com and the LegalMatch.com Law Blog. This article is not legal advice, and is offered for information only, and not intended to be used as legal advice.
