Recently, the Supreme Court agreed to hear the State of California’s appeal in Schwarzenegger v. Entertainment Merchants Association, a case which both the district court and the Ninth Circuit invalidated on First Amendment grounds — a California law bars the sale or rental of violent videogames to minors. When it hears the case, the Supreme Court will have to address an existential question about video games: Are they games in video form, or are they something more than that, closer in kind to a movie, a television show, or even a digital short? (The question evokes images, at least for me, of Mike Myers’ Saturday Night Live character Linda Richman saying to the audience, “Video games are neither videos nor games. Discuss.”) Mere games, of course, seem unlikely to be viewed as an “expression” entitled to protection under the First Amendment, while something akin to a movie or other video story most likely would be entitled to such protection.
For anyone who has not played a video game in the last 10 years, the answer to that question might surprise you. Today’s games are not just progressively more difficult challenges with a graphical interface, à la Pac Man or Super Mario Brothers. Instead, for many of today’s games, the emphasis is on creating an alternate universe, and there is either a story arc or a world to explore, if not both. Sometimes, the story is part of a broader multimedia platform. For example, years ago I stayed up nights on end trying to finish a game set in the same universe as the Matrix movies. As I completed various levels, I was rewarded with live-action footage featuring many of the characters in the movies, often filling in gaps that were left unexplained in the movies themselves. Other times, the game offers a universe of its own, and the player either advances the story, or simply resides in and interacts with the alternate universe that the programmer has created. Either way, these games seem to bear many of the hallmarks of artistic expression.
Ultimately, the answer to this question might not be one that California or any other state wants to hear – each game is probably sui generis. The Matrix game to which I devoted so many evenings bears many of the hallmarks of creative expression – a narrative in an alternate universe in which the player advances to conclusion. Other games, such as the ubiquitous Madden football franchise, do not tell a story or create a parallel universe. They simply offer the user a chance to control computer-created athletes in competition. The differences between these two types of game are significant, and they emphasize the importance of considering each video game on its own merit to determine whether it deserves protection under the First Amendment.
The Supreme Court’s answer to what protection the First Amendment offers to video games will be important to the video game industry, but not only to that industry. Indeed, the way that the Court approaches the question, and the factors it uses to determine whether video games are just that or are a protected form of expression, could significantly impact the way other new, or evolving, media obtain protection under the First Amendment. From social networking to smart phone apps to technologies that none of us is using today, the outlets available for possible expression are expanding at a dramatic rate, and the Court’s decision next term could dramatically shape how those media determine what protections the Constitution offers them.
Joshua D. Wolson is a partner in the Litigation Department at Dilworth Paxson. He can be reached at (215) 575-7295 or firstname.lastname@example.org. This posting is for informational purposes only and should not be construed or interpreted as legal advice on any matter.