The First Amendment and Video Games – Part 2: First Amendment Basics

What does the First Amendment say?

The First Amendment to the U.S. Constitution reads:

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.

If we break that language down, it says that the government can’t do a number of things: (1) establish an official religion, (2) prohibit the free exercise of religion, (3) abridge (limit) freedom of speech, (4) freedom of the press, (5) the right to gather and groups or (5) petition the Government for change.

How does the First Amendment apply to game development?

The word “speech” in the First Amendment applies more broadly than the word might imply. In this context, “speech” means “expression.” Speech can be an action without words: kneeling on the ground during the national anthem or burning a flag, for example. Speech can also include artistic endeavor.

As Justice Scalia wrote in the landmark video game speech case Brown v. EMA:

The Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try. . . . Like the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world). That suffices to confer First Amendment protection. . . .  [W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.

(Quotes and Citations omitted)

This case, decided in 2011, was the first at the U.S. Supreme Court level to consider the First Amendment and video games. It is also the first (and to date, only) to officially declare that video games are protected by the First Amendment.

More on what First Amendment protection does and does not mean in Part 3.

Brandon J. Huffman

Brandon is the founder of Odin Law and Media. His law practice focuses on digital and interactive media, entertainment, internet related issues and crisis communication. He serves as general counsel to the International Game Developers Association and is an active member of many bar associations and community organizations. He can be reached at brandon at odin law dot com.

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