Can States Constitutionally Regulate Video Games, As California Is Considering Doing?
The First Amendment Framework That Would Probably Apply

This past month, the California legislature began to consider a bill attempting to limit the distribution of particularly violent video games to minors. Bills of this kind have obvious First Amendment implications, but are not necessarily First Amendment violations.

Specifically, the bill proposed by California Assemblyman Leland Yee would regulate electronic games that "taken as a whole . . . appeal to minors' morbid interest in violence, that enable the player to virtually inflict serious injury upon human beings or characters with substantially human characteristics in a manner that is especially heinous, atrocious, or cruel, and that, taken as a whole, lack serious literary, artistic, political, or scientific value for minors."

According to the bill, the key requirement of heinousness, atrocity, or cruelty can be established if, in addition to other requirements, the game "depicts exceptional pain or suffering on the part of the victim and is accompanied by a graphic depiction of the victim's injuries," and "the circumstances surrounding the violence indicate that it is committed without conscience, pity, or empathy."

In today's column, we address the complicated First Amendment framework that will likely apply when the government attempts to regulate such matters. In our view, if States think that such regulation is good policy, they should not be deterred from legislative experimentation, even though judicial invalidation of such measures cannot be ruled out.

To begin, there is no recognized constitutional category identifying expressive materials that contain violent imagery or language as unprotected speech. To the contrary, such materials --- say, war movies or novels -- have traditionally been thought to be covered by the First Amendment.

By comparison, patently graphic sexual imagery or language may be completely prohibited as unprotected obscenity, under the Supreme Court's leading obscenity case, Miller v. California. But there is no authority suggesting that patently graphic violence is analogously unprotected.

Thus, any legislative attempt to restrict the distribution to adults of expressive materials because the materials contain violent acts - even gratuitous and repetitive violent acts -- would be challenged under the First Amendment. Moreover, such legislation would likely constitute the kind of "content discriminatory" regulation of speech to which courts apply very strict scrutiny.

Under such strict scrutiny, a law will be upheld as constitutional only if it is "necessary" to the furtherance of a "compelling" state interest. Very few laws survive this level of review.

Laws that prohibit the distribution of expressive materials to minors raise a different question, however.

As a general proposition, minors' constitutional rights are not always protected to the same degree adults' rights are. To cite an obvious example, minors do not have the right to vote. Similarly, a minor's right to have an abortion may be subject to regulations that would be rejected as unduly burdensome if they were applied to an adult woman.

Why are minors' rights protected to a lesser degree than adults? The answer courts have given is that because children lack the maturity to make wise judgments, their autonomy deserves less respect from the state than does the autonomy of adults. While paternalistic state regulations are correctly viewed as demeaning when applied to adults, they are considered appropriate, if not necessary, for children.

The California law at issue would apply only to minors -- so to see how courts will treat it, we must look to Supreme Court decisions evaluating state authority to limit the distribution of expressive material to minors in particular. Unfortunately, the case law here is neither consistent nor coherent.

In 1968, in Ginsberg v. New York, the Court upheld (under a very lenient standard of review) a law prohibiting the sale of sexually graphic material that was deemed harmful to persons under the age of seventeen. Because the material was non-obscene, it could be legally sold to adults. The Court concluded that the state had greater authority to limit distribution of material to children, if that material "might prevent their 'growth into free and independent well-developed men and citizens.'"

Seven years later, in Erznoznik v. City of Jacksonville, the Court rejected the argument that a state could prevent drive-in theaters from showing movies containing nudity in order to protect children passing by from brief exposure to such images. Then in FCC v. Pacifica Foundation, decided just a year after Erznoznik, the Court appeared to reverse direction again. It supported the issuance of an FCC reprimand to a radio station that had broadcast George Carlin's "dirty words" monologue at a time when children might be in the radio audience -- even though the effect was to limit adult listeners' access to the monologue.

Today, in more recent cases evaluating laws that prevent both adults and children from obtaining access to proscribed materials, the Court accepts as a given that the state's goal of preventing children from obtaining expressive materials that might be harmful to them is a compelling state interest. Importantly, however, these cases track the earlier decisions and involve the regulation of sexually graphic material.

None addresses the question of whether the distribution of other kinds of expressive materials that are potentially harmful to minors, such as materials that describe, depict, or -- in the case of video games -- allow the viewer to "play out" violence may also be limited.

Thus, on one hand, there is no precedent for such regulation. But on the other hand, the Court has never held that the state's interest in protecting minors from expressive material that may be harmful to them is exclusively limited to speech with sexual content.

It is important to note that in some other cases the Court has aggressively defended the free speech rights of minors. In Tinker v. Des Moines Independent School District, the Court protected the right of high school students to wear black armbands to school to protest the Viet Nam War. Earlier, in West Virginia State Board of Education v. Barnette, the Court recognized that compelling school children to salute and recite the pledge of allegiance to the American Flag violated First Amendment rights against compelled affirmation of belief.

These cases are distinguishable from the cases, discussed earlier, allowing the government to limit the access of minors to expressive materials, in several critical respects. However, like the cases upholding limitations on access to sexually graphic materials, they also do not clearly control the question of whether access to violent video games can be regulated.

Viewpoint discrimination occurs, as the phrase suggests, when the government tries to suppress one particular opinion or point of view. Under Supreme Court precedent, viewpoint discriminatory regulations are considered particularly pernicious and inconsistent with free speech values.

Again, these issues simply don't seem to arise with most violent video games. The California law arguably targets a level or type of violence that lacks any obvious or coherent political dimension. Neither repetitive killing for the sake of killing, nor repetitive sex for the sake of sex, constitutes political discourse.

While Barnette does not elaborate on this point, the context of the case makes abundantly clear that the children who refused to recite the pledge did so with the full support of their Jehovah's Witness parents. Indeed, the Court noted that in some cases, the parents of children refusing to recite the pledge were prosecuted for causing the delinquency of their children.

The state can thus use its power to assist parents in protecting their children from harmful materials. For this reason, adult consensus that material is unsuitable for children helps to justify the constitutionality of a law -- as does the individual parent's concern that her children are obtaining materials harmful to their well-being.

Conversely, a law prohibiting parents from purchasing material they deemed suitable for their children because the majority of parents in the community considered the material unsuitable for minors would be much more difficult to justify. Such a law would be inconsistent with the recognition in both the political speech and sexual content cases that parents have a right to guide their children's upbringing, and to decide what they may read or what they must recite.

In sum, a speech-restricting law relating to minors is less likely to survive if political speech is involved, and more likely to survive if parents support it -- or, at least, if it does not interfere with parents' ability to raise their children as they see fit.

In addition to these principles, the case law identifies several other factors that are relevant to evaluating access restrictions. Clearly, the age and maturity of the members of the restricted class is important. A law limiting access by children under the age of twelve is far more likely to be upheld as constitutional than a law restricting access by seventeen year olds.

The degree to which the restricted material communicates information or ideas is also relevant. It would be very difficult to argue that a seventeen-year-old minor -- who might enlist to serve in the military within a year -- should not have access to news reports containing graphic violence that describe the war in Iraq.

Finally, there would have to be some evidentiary or other societal support for the notion that permitting minors access to violent materials would be harmful to them in some meaningful sense. The conventional assumption that children should be denied access to sexually graphic, erotic material has a long tradition to support it. No such clear consensus exists with respect to violent expression. Indeed, if anything, the tradition in the United States is to the contrary.

The Supreme Court's cases discussing minors' access to expressive materials under the First Amendment involve movies, plays, books, magazines etc. Does the regulation of access to games change the analysis? The answer is: Yes and no.

Content discriminatory restrictions on minors purchasing some non-video games would clearly raise First Amendment concerns. One need only think of classic games like Monopoly or Risk to realize that government attempts to regulate such games because of their overly capitalistic or warlike aspects would be quickly rebuffed.

Video games, though, may be a different matter. Crucial to a court's evaluation of a law like California's will be the judge's understanding of how a particular genre of video game is played, and how the player engages with it. Video games are, of course, interactive. But the nature of that interaction may be key in any judicial challenge.

Are particular video games interactive in the way that a good book or movie is interactive - drawing the reader or viewer into the story line and causing her to imagine how she would react were she one of the characters? Or are particular video games interactive in a simply reflexive way -- the way a patient's knee "interacts" with the doctor's hammer in a physical examination?

It seems to us that much will turn on how much thought, strategy, reflection and analysis a player of a particular kind of video game is called on to undertake during the course of the game. A fast-moving game where the player is simply shooting at everything in sight may be very different than one in which the player is asked to map out a plan to accomplish some strategic (albeit offensive) objective.

Unfortunately, there is not a lot of case law, even from the lower courts, providing guidance on these kinds of questions. Perhaps the most prominent federal case is from the U.S. Court of Appeals for the Seventh Circuit, which is based in Chicago.

In American Amusement Machine Association v. Kendrick, Judge Richard Posner wrote an opinion for a three-judge panel directing the district court to issue a preliminary injunction against the enforcement of an Indianapolis ordinance that sought to limit access of minors to certain violent video games. The Kendrick opinion contains some broad language that would seem to indicate a general skepticism about legislative attempts in this arena. But the Kendrick decision is also limited in a number of ways -- and because of these limits, it doesn't necessary mean California's proposed statute or other related laws are doomed to be struck down.

First, of course, a ruling by the Seventh Circuit does not have any binding precedential force anywhere outside that Circuit. Until we know how the Supreme Court views these matters, substantial uncertainty will prevail.

Second, the Kendrick ruling was not a final ruling on the merits of the Indianapolis ordinance. It was merely a ruling that granted a preliminary injunction.

(In other words, the Kendrick decision did not hold that the Indianapolis ordinance violated the First Amendment. Instead, it held only that there was a substantial chance that the ordinance would be found to violate the First Amendment, when all the facts were established at trial.)

Third, and most importantly, there may be key features of the Indianapolis ordinance - that may not be present in California's current bill and other laws - that gave the Seventh Circuit pause. For one thing, Indianapolis did not really try to base its law on the psychological damage violent video games causes to minors; instead, Indianapolis argued that such games induce minors to themselves commit violence.

Other proposals may be much more directly based on damage to the children themselves, rather than damage caused by the violent acts of children influenced by video games to harm others. If that harm to children can be supported with the right kind of evidence, a trial on a particular new proposal -- in California, or another state -- might be very different than one on the Indianapolis law.

In the end, the First Amendment doesn't necessarily foreclose sensible regulation in this area. For that reason, states like California should feel free to experiment in this realm if experimentation otherwise makes sense.