Constitution Daily

Smart conversation from the National Constitution Center

Video games and free speech

November 10, 2010 by Geoffrey R. Stone


Can a state constitutionally prohibit the sale or rental of video games to persons under 18 years of age if the game enables players to “kill, maim, dismember, or sexually assault an image of a human being” in a manner that appeals to the “morbid interest of minors”? This question is now pending before the Supreme Court of the United States in the case of Schwarzenegger, et al., v. Entertainment Merchants Association.

At first blush, this seems easy. After all, violence is bad for minors. Nonetheless, every federal court that has considered this question has held such laws unconstitutional under the First Amendment.

Every federal court that has considered this question has held such laws unconstitutional under the First Amendment.

How can this be so? Basically, the courts have reasoned that (a) minors have constitutional rights (even if they are not precisely coextensive with the rights of adults), (b) video games are protected First Amendment expression (they are artistic and they may reasonably be seen as interactive novels), (c) violence is a critical, if unfortunate, part of life, and it would be both impossible and undesirable for the state to try to shield minors from that reality, (d) the logical conclusion of upholding such a law would be laws forbidding minors from seeing the news or playing “army,” and (e) the responsibility for dealing with these issues properly rests with parents rather than with the government.

The government always responds in these cases that the First Amendment does not protect the right of minors to play sexually obscene video games, even though arguments similar to (a) through (e) can be made in that context as well. The federal courts that have addressed this argument have unanimously concluded that there is a long tradition in western culture and American law of regulating sexually obscene speech, but there is no similar tradition of regulating violent expression.

How will the Supreme Court rule? My guess is that a substantial majority of the Court will agree with the decisions of the lower federal courts and hold this law unconstitutional.

Geoffrey R. Stone is the Edward H. Levi Distinguished Service Professor of Law at The University of Chicago and a Visiting Scholar at the The National Constitution Center.Photo credit: Flickr user commorancy

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