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Free Expression

World of Courtcraft: Video Game Case Could Spell DOOM for Free Speech

Today, CDT and a coalition of industry and public interest groups filed a "friend of the court" brief in the Supreme Court against the state of California’s mandatory video game labeling statute.  That statute, which would require video game distributors to label “violent” video games and would prohibit their rental or sale to minors, was struck down as unconstitutional by the Ninth Circuit in 2009.  The Ninth Circuit was not the first court to review this type of statute – seven other states have attempted similar laws targeting violent video games, and each of these laws has been overturned as a violation of the First Amendment.

But the Supreme Court, in a surprising move, agreed to review the California statute even though there was no disagreement about the law among the lower courts. The Court will look at two questions in this case.  The first is whether the First Amendment prohibits the government from barring the sale of violent video games to minors; to date, violent content has received full First Amendment protection, meaning that the government “shall make no law” prohibiting access to it or otherwise restricting it. A carve-out of a new category of unprotected speech would be a seismic shift in the law.  

The second question is whether, if the government could permissibly regulate minors’ access to violent content, it would be required to establish a direct causal link between exposure to violent video games and physical or psychological harm to minors.  This question forms the heart of the debate surrounding minors and violent games.

CDT’s brief, which was joined by the Computer & Communications Industry Association, Consumer Electronics Association, Information Industry Council, TechAmerica, and the Digital Liberty Project of Americans for Tax Reform, focuses on the impact this kind of regulation would have on online gaming.  Online distribution of games is becoming increasingly prevalent, and many games exist solely as software to be played online or downloaded to a mobile phone or other handheld device.  If California’s law were upheld and applied to online gaming, website operators and game developers would have to try to prevent minors from accessing “violent” games.  

But age-based restrictions on access to content are prohibitively difficult to implement online, and the Court should be well aware of this: It’s already struck down two federal statutes that attempted to prohibit minors from accessing indecent content – that is, sexual content deemed “harmful to minors” in reference to contemporary community standards – online.  In Reno v. ACLU, where the Court struck down much of the Communications Decency Act, and in the line of cases that eventually killed the Child Online Protection Act, the Supreme Court concluded that age verification technologies are generally not effective online, and that requiring websites to demand age or identity information from every user would violate adults’ First Amendment rights to access online content anonymously.  It would also have an unconstitutional chilling effect on the speech of content providers and website operators.

Of course, the Court has also already addressed the question of how best to regulate minors’ access to content that their parents may feel is inappropriate for them.  User empowerment tools, including client-side blocking and filtering technology, are a less restrictive – and typically more effective – way for parents to set limits on their children’s media use than broad government prohibitions on certain content.  And the video game industry has already voluntarily integrated user empowerment tools into game consoles, devices, and online gaming systems.  

The Court is facing a momentous decision: whether to severely restrict the scope of First Amendment protections enshrined in our Constitution by creating a brand-new category of speech that the government can censor.  But even if the Court were to overlook established precedent and approve censorship of violence in general, this type of video game labeling statute would still be unconstitutional, given the wealth of other less restrictive means available to parents to monitor and regulate their children’s media use.  

We can debate what games are appropriate for kids based on age and maturity; however, it's clear that parents must be the ultimate judge. Let's hope the Supreme Court reaches the same verdict, because in the 'World of Courtcraft' you can't kill the First Amendment and expect it to respawn.