Your right to play and the First Amendment

ACLU of Massachusetts online communications coordinator Danielle Riendeau wrote the following guest blog.

Courts have ruled that the First Amendment protects speech, literature, film, clothing choices and now, video games. Yes, video games--and whether you’re an avid PC gamer, occasional Angry Birds tosser or someone who last picked up a controller in the 1970s to play Pong, this is an important victory for everyone who cares about freedom of expression.

Just this morning, the US Supreme court struck down California’s ban on the sale of "violent" video games to children, in a 7-2 decision. Essentially, the court held that games qualify as a form of expression protected by the First Amendment, and that there was insufficient evidence that they cause harm to minors. You can read all of the details of the decision (and read the majority and minority opinions) here.

It can be difficult to understand that finding if you are unfamiliar with video games, especially given the kind of media frenzy--around violent or sexual content particularly--that has accompanied the release of certain high profile games in the past. If you’re to believe certain cable news anchors, video games are the drug of choice for maladjusted, antisocial teenaged boys with raging hormones.

However, like film, novels, theater or music, video games encompass a wide variety of genres, formats and intended purposes. The IGDA (International Game Developers Association) and the Academy of Interactive Arts and Sciences (AIAS) filed a wonderfullyreadable, nearly "legalese-free" Amicus brief for the California case, highlighting the myriad ways in which games qualify as a valid, culturally relevant form of expression, worthy of First Amendment protection.

From the brief:

"At one end of the spectrum are games that are primarily 'serious,'--written to teach or to persuade, although they are naturally intended to be enjoyed as well. Like nonfiction literature, newspaper editorials, and documentary films, however, these games inform or argue directly.

At the other end of the spectrum are games written primarily to entertain--but often also having important expressive components. Indeed, as this Court wrote in Winters v. New York, 'the line between the informing and the entertaining is too elusive' to serve as a distinguishing factor in First Amendment analysis."

Many specific games, including several from former Supreme Court Justice Sandra Day O’Connor’s "iCivics.org" educational games portal, are highlighted as specific examples. The IGDA certainly did their homework.

Even if you don’t care much for video games one way or another, this represents an important victory for civil liberties in an age of ever-evolving technology. What we have here is essentially a new form of speech enabled by technology--and like many new formats, it expands upon some of our older definitions and challenges us to seek out new ways to protect our freedoms in a changing environment.

So, whether you’re a developer with something to say, a true blue gamer, or somebody who doesn’t know Mario from Luigi, everyone benefits from the major power-up free speech received today.

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