Protecting Kids or Attacking the First Amendment?
Video Games, Regulation and Protected Expression


James D. Ivory
(Student Author)
CB #3365
School of Journalism and Mass Communication
University of North Carolina at Chapel Hill
Chapel Hill, NC 27599-3365
Ph: 919.933.3327
Email: [log in to unmask]







Submitted to the Law Division for presentation at the 86th Annual
Convention of the Association for Education in Journalism and Mass
Communication
April 2003
Protecting Kids or Attacking the First Amendment?
Video Games, Regulation and Protected Expression

Abstract

This paper inspects a recent federal court decision, Interactive Digital
Software Association v. St. Louis County, Mo., in which the court ruled
that video games did not constitute expression meriting First Amendment
protection.  Via an examination of the history of similar cases in federal
courts, the Interactive Digital ruling is here found to be inconsistent
with other rulings; an affirmation of this decision in the U. S. Court of
Appeals would prolong an unacceptable contradiction.


 Protecting Kids or Attacking the First Amendment?
Video Games, Regulation and Protected Expression
Since their advent decades ago, video games have developed into a massive
entertainment empire.  With $6.35 billion in sales of video games and
related equipment in 2001,[1] the video game industry consistently
outgrosses the Hollywood box office.[2] As many as 60 per cent of all
Americans play video games,[3] and more than 100 million video game
consoles are in use worldwide.[4]  It appears that video games are here to
stay.
However, with success and proliferation has come criticism.  Video games
and their potential effects have been publicly vilified for almost as long
as they have been a commercial presence.  In 1983, United States Surgeon
General C. Everett Koop named the games as one of the top three causes of
family violence,[5] and video game content has since been scrutinized by
media watchdog groups[6] and congressional hearings.[7]  This inspection
has intensified in recent years, with speculative links made between video
game play and school shootings in Paducah, Kentucky, in 1997 and Littleton,
Colorado, in 1999.[8]  Current U. S. Attorney General John Ashcroft has
taken suspicion of the negative effects of video games to a new level,
suggesting that the "ethic of violence" they support was partly to blame
for a 2001 San Diego, California, shooting, despite the fact that video
games had not been otherwise linked to the incident.[9]
Despite these opinions, attempts to obtain civil judgments against video
game manufacturers have not met with success.  Cases brought by victims and
family members seeking damages from video game manufacturers and purveyors
for their alleged contributions to both the Paducah[10] and Littleton[11]
incidents were dismissed by federal courts.  A similar suit, in which the
mother of a child killed by a playmate "obsessed with"[12] a particular
violent video game sued the game's manufacturer for liability damages, was
also dismissed in March of 2002.[13] A significant factor in each of these
rulings was the contention that video games enjoy First Amendment
protection.[14]
However, existing opinions that video games are protected free speech have
not preempted regulation of the entertainment form. Perhaps the most
notable recent validation of video game regulation was announced April 19,
2002, in Interactive Digital Software Association v. St. Louis County,
Mo.[15]  In denying a motion for summary judgment against enforcement of an
ordinance restricting minors' access to violent video games without
parental consent, the court found that video games contained "no conveyance
of ideas, expression, or anything else that could possibly amount to
speech."[16]  This opinion's strong wording provides a description of video
games that seems to place them entirely outside the range of First
Amendment protection.
The Interactive Digital decision is, ostensibly, a curious one: It
contradicts not only the aforementioned tort decisions, but also a 2001
Seventh Circuit opinion on a similar ordinance in American Amusement
Machine Association v. Kendrick.[17]  In American Amusement, the court was
vehement in its advocacy of First Amendment protection for video games,
comparing restricted access to video games to curtailment of access to
works such as Homer's Odyssey, Dante Aligheri's The Divine Comedy, and Bram
Stoker's Dracula.[18]  Additionally, the court in American Amusement issued
a strong warning against restriction of children's exposure to questionable
materials, noting that "the murderous fanaticism displayed by young German
soldiers in World War II, alumni of the Hitler Jugend, illustrates the
danger of allowing government to control the access of children to
information and opinion."[19]
A brief filed by 33 scholars with the U.S. Court of Appeals for the Eighth
Circuit in support of the Interactive Digital appellants[20] also reveals
the significance of the decision; the final holding in the case will be
anxiously awaited, and may have massive implications for the position of
video games in relation to the First Amendment.  Similar ordinances and
federal regulations are already under consideration, and one of the
attorneys in the American Amusement case has predicted a possible Supreme
Court ruling on the issue in the near future if the Interactive Digital
decision is upheld on appeal.[21]  The Interactive Digital case appears to
be about much more than a few arcades in St. Louis; the First Amendment
status of a massively popular entertainment medium may be at stake.
Why did two federal courts reach such contradictory decisions with regard
to video games and free speech protection within a span of one year?  Is
there a fundamental disagreement among the courts regarding the First
Amendment protection of video games, or can discrepancies be explained by
the circumstances of each case?  This paper compares court rulings on video
games and free speech protection in an effort to reconcile differences in
existing court rulings or indicate flaws in one or more of these decisions.
Video Games, Effects Research, and the First Amendment
For almost as long as video games have been criticized in popular opinion,
effects research has sought to ascertain the possible negative effects of
children's use of the medium.[22]  This comes as no surprise; emerging
communication media are typically accompanied by alarm regarding what
impact they may have on children.[23]  In the case of video games, this
concern is exacerbated by survey evidence that children prefer types of
video games that typically contain violence.[24]
However, the literature examining possible effects of video game play on
children is convoluted, especially where violent video games and aggression
are concerned.  Some experimental studies find negative video game
effects,[25] others a lack thereof.[26]  Even reviews analyzing existing
studies are unable to reach a consensus on the issue of whether video games
elicit negative effects in their users.[27] A meta-analysis by Sherry,
which consolidated existing studies dealing with video games and
aggression, found a link between video game play and aggression – but not
as strong a connection as has been found with
television.[28]  Additionally, Sherry notes that concerns such as a
"generational" difference between the technology and content of evolving
games could not be accounted for in his meta-analysis.[29]  Additionally
problematic are some studies that have found video game play to have a
calming effect on study participants, or findings that a non-violent game
was more strongly correlated with player aggression than a violent one.[30]
Despite the lack of consensus in the research on the issue of video game
effects, the legal literature teems with calls for restriction of video
games. Many of these pleas appear to claim stronger effects of the medium
than the aforementioned empirical research can support, picking and
choosing from relevant studies to justify their claims.  Barton, for
example, calls for increased legislative restriction of violent video
games, claiming that "the media industry, driven by a lust for profit and a
disregard for decency, must be corralled by laws in order to protect the
interests of children."[31]  As justification for his pleas, Barton cites
statements from organizations such as the American Society of Pediatrics,
as well as Lt. Colonel Dave Grossman, "a recognized expert on the
psychology of killing."[32] However, Barton lists only two empirical
studies as support for his assertion that "significant evidence,
nevertheless, suggests that violent video games can function to increase
aggressive behavior."[33]
Dalal's call for restrictions on the marketing of violent games in venues
easily accessible to children is a similar example.[34]  Dalal calls such
legislation an "essential step" in curbing incidents of youth violence,[35]
declaring that "studies have shown that young schoolboys, after playing
aggressive video games, exhibit a higher level of physical and verbal
aggression than they did prior to playing such games."[36] However, Daleal
cites only one psychological study.
Some who claim negative effects of video games do so without addressing
empirical research at all.  Dee, in arguing for more restrictions on video
games and other violent media content, places recent tragedies at the feet
of entertainment providers in no uncertain terms:
If, as a society, we continue to blindly assert First Amendment freedoms
without looking carefully at the glorification of violence in a Boy Scout
magazine ad, rap lyrics, videogames, pornographic web sites or Hollywood
films, will we pay for this "freedom of expression" with the lives of our
school children?
Of course, the answer is obvious: yes, we will.[37]
However, Dee eschews use of any empirical studies involving video games in
supporting her forceful claim, using instead only a Red Cross report making
analogous comparisons between video games and "killing simulators" used to
train military personnel.[38]
Similarly, Kiernan argues that the First Amendment should not protect video
game manufacturers from tort liability, claiming, "An injured plaintiff
should be compensatedÊfor the video game industry's unreasonable behavior
that caused the plaintiff's harm."[39]  Kiernan also uses expert testimony
and general theory concerning media violence to support his claim but
elects not to cite a single empirical study dealing with video games as
evidence.
Others see legal attacks on video games as misdirection of blame for larger
societal problems, citing restriction of access to video games as a
reprehensible infringement upon the First Amendment that is not yet
justified by scientific evidence.  Calvert decries restrictions on
entertainment media, describing this approach as "the media blame game"[40]
and offering a stern warning:
But just as we must stop subscribing to a magic bullet theory of mass
communication, so too must we stop looking for a magic bullet answer to
societal problems of youth violence. Restricting access to speech will not
change our culture of violence, but will only result in a culture that
fears speech.[41]
In another article, Calvert notes that laws restricting access to video
games "will be about more than just preventing violence. They will be about
restricting culture and the First Amendment interests of
children."[42]  These arguments appear to stem in part from the fact that
Calvert is not particularly swayed by existing evidence of negative effects
of video games on children: "[W]hile there may be a critical mass of
research and literature on media violence in general, it is clear that this
is not yet the case with the specific subject of video game violence."[43]
Calvert is not alone in this disapproval of video game
restrictions.  Jacobs also mentions video game legislation in his
discussion of a "'blame game' . . . in the wake of the Columbine
massacre,"[44] and Everett laments "the easy use of video games and the
Internet as scapegoats in our national rush to assign blame in the
[Littleton, Colorado] tragedy."[45]
The social impact of tort judgments against violent video game
manufacturers and purveyors is also questioned.  Arguing for immunity of
all violent media content (including video games) from tort damages,
Ausness makes this claim regarding lawsuits against video game
makers:  "[T]heir ultimate effect will be to greatly reduce the variety of
material that is made available to adult audiences. Therefore, courts
should resist the temptation to change existing tort and constitutional
doctrines in any way that encourages others to bring these types of
lawsuits against media defendants."[46]
The literature, therefore, presents an opaque picture of the issue of video
games and aggression.  Some find video games to be a dangerous medium in
need of restriction; others see such regulation as misdirected and an
infringement upon the First Amendment.  While neither side of the issue
appears to dominate the discussion, all the arguments are voiced strongly.
Research Questions
Given this marked difference of opinion in the literature regarding
application of First Amendment protection to video games, the apparently
contradictory decisions in the American Amusement and Interactive Digital
cases might be seen as a reasonable judicial manifestation of this
division.  However, there is a need for consistency in the law regarding
regulation of what may be the biggest entertainment business in the United
States.[47]  This paper examines the degree of consistency that does exist
by addressing the following research questions:
RQ1: What have federal courts said on the issue of whether video games are
protected expression?
RQ2: If they have found video games to be protected expression, how have
courts ruled on what regulation of video games is acceptable?
RQ3: Is there a consistent pattern in these rulings on video games and
First Amendment protection?  If not, are the differences reconcilable?
RQ4: Based on the existing rulings, should the Interactive Digital decision
be upheld?
These questions will be explored via an analysis of the eight federal cases
that have dealt with the issue of video games and free speech
protection.[48]  Cases dealing with copyright, trademark, breach of
agreement and other issues of intellectual property or business activity
rather than free speech protection will be excluded from
analysis.  Additionally, those cases dealing primarily with the regulation
of video game devices used for gambling or the viewing of pornography will
not be addressed, as regulation of gambling and pornography are outside the
scope of this analysis.
Free Speech Protection for Video Games
The two earliest federal cases are consistent in their handling of the
issue of free speech protection for video games.  In America's Best Family
Showplace Corp v. New York,[49] the U.S. District Court for the Eastern
District of New York evaluated video games' status as protected expression
in reviewing the plaintiff's challenge to an ordinance forbidding the
operation of more than four video game machines in a business
establishment.  Despite the plaintiff's claim that video games were "visual
and aural presentations on a screen involving a fantasy experience in which
the player participates" that were similar to films and thus merited First
Amendment protection,[50] the court was unconvinced.  The court stated that
"video games cannot be fairly characterized as a form of speech protected
by the First Amendment,"[51] and thus the regulations "do not implicate
First Amendment problems."[52]  This ruling was based in large part upon
the holding that video games were purely entertainment and contained no
informative element.[53]
The issues in Malden Amusement Co., Inc. v. City of Malden[54] were very
similar to those of the America's Best case, as was the decision.  In
Malden, the court rejected a First Amendment challenge to an ordinance
restricting the licensing of more than five video game machines to
establishments where the games would serve a "purpose accessory to or
incidental to only recreational business use"[55] and limiting the total
number of machines to 25 for any purpose.  The Malden court found the
America's Best analysis "persuasive" enough that no further investigation
of the issue of First Amendment protection was deemed necessary. [56]
While the courts in these two cases seemed quick to dismiss video games as
a medium of expression protected by the First Amendment, the Seventh
Circuit in Rothner v. Chicago[57] was more hesitant on this issue.  The
court ruled against the plaintiff's claim that an ordinance forbidding the
operation of video games by minors during school hours was
unconstitutional, but the decision was made without settling the issue of
First Amendment protection for video games at all.  Unlike the federal
district court that heard the case, the Rothner appellate court expressed
reluctance to consider video games completely outside First Amendment
protection: "To hold on this record that all video games--no matter what
their content--are completely devoid of artistic value would require us to
make an assumption entirely unsupported by the record and perhaps totally
at odds with reality."[58]  The Seventh Circuit noted, "The judgment of the
district court can be affirmed without our reaching this issue,"[59] and
upheld the district court's ruling that the regulation was an acceptable
time, place, and manner restriction regardless of the possible free speech
protection of video games.  After the Rothner court's skirting of the
issue, the rulings in America's Best and Malden Amusement stood uncontested
in the federal courts for several years until another Seventh Circuit
decision addressing the issue was handed down in American Amusement.[60]
In American Amusement, the appellate court struck down an ordinance
forbidding video arcades from allowing minors unaccompanied by an adult to
play "an amusement machine that is harmful to minors."[61]  As mentioned
earlier in this paper, the appellate court expressed extreme concern over
the limitation of the ideas expressed in video games and likened such
restrictions to the control of children's access to information exercised
by Nazi Germany and denial of children's access to literary classics,
fables, and mythology.[62]  In its finding that video games merited First
Amendment protection, the court drew a clear comparison between video games
and other protected forms of expression:[63]
All literature (here broadly defined to include movies, television, and the
other photographic media, and popular as well as highbrow literature) is
interactive; the better it is, the more interactive. Literature when it is
successful draws the reader into the story, makes him identify with the
characters, invites him to judge them and quarrel with them, to experience
their joys and sufferings as the reader's own. Protests from readers caused
Dickens to revise Great Expectations to give it a happy ending, and
tourists visit sites in Dublin and its environs in which the fictitious
events of Ulysses are imagined to have occurred. The cult of Sherlock
Holmes is well known. Most of the video games in the record of this case,
games that the City believes violate its ordinances, are stories.[64]
This finding is in sharp contrast to the claim in America's Best that "a
video game, like a pinball game, a game of chess, or a game of baseball, is
pure entertainment with no informational element."[65]  However, it does
not stand alone in its disagreement with earlier decisions regarding video
games and free speech.  In all three of the tort dismissals analyzed here,
the courts also found video games to be examples of free speech.  The
courts in Sanders v. Acclaim Entertainment, Inc., Wilson v. Midway Games,
Inc., and James v. Meow Media, Inc. all found video games to be protected
by the First Amendment, and all cited the American Amusement opinion in
their decisions.  Furthermore, the Wilson and James courts noted that the
very nature of the suits, which sought damages for deaths and injuries
allegedly caused in part by the messages and expression in the games,
implied that the video games involved contained sufficient expression to
merit First Amendment protection.[66]
Viewing these judgments in sequence, a general progression can be seen
wherein video games were first placed outside the realm of protected
expression, then brought under the First Amendment after a period of
uncertainty.  That trend, however, was broken by the Interactive Digital
decision, which found that "video games have more in common with board
games and sports than they do with motion pictures."[67] Citing several
cases dealing with the application of the First Amendment to Bingo and
blackjack games, the Interactive Digital court ruled that video games did
not constitute protected speech.
In the context of the other federal decisions, this finding seems
outdated.  While the Interactive Digital opinion acknowledged the American
Amusement ruling that video games enjoyed free speech protection, it
attached more credence to the older America's Best ruling.[68]
Appropriate Regulation if Protected
For those courts that considered video games to be protected speech, a
second issue had to be addressed: What restrictions on this protected
speech are acceptable?  Here, the cases provide insight on a number of
issues because they involved many different methods of regulation.[69]
Although the Rothner court refused to determine whether video games
contained protected expression, the court did address the appropriateness
of the regulation by noting that the ordinance in question was a legitimate
time, place, and manner regulation and would not infringe on video games
whether they were free speech or not.[70]  However, the ruling in American
Amusement concerned an entirely different manner of regulation.
In American Amusement, the ordinance in question was worded in a way that
classified violent video games as obscenity, targeting the type of game
that predominantly appeals to minors' morbid interest in violence or
minors' prurient interest in sex, is patently offensive to prevailing
standards in the adult community as a whole with respect to what is
suitable material for persons under the age of eighteen (18) years, lacks
serious literary, artistic, political or scientific value as a whole for
persons under" that age, and contains either "graphic violence" or "strong
sexual content.[71]
Consequently, the court ruled that it "brackets violence with
sex."[72]  The appellate court found this type of regulation inappropriate,
stating, "Violence and obscenity are distinct categories of objectionable
depiction, and so the fact that obscenity is excluded from the protection
of the principle that government may not regulate the content of expressive
activity neither compels nor forecloses a like exclusion of violent
imagery."[73]  While the court entertained the notion that violent imagery
in video games might also be obscene, it noted that "offensiveness is not
the basis on which Indianapolis seeks to regulate violent video games … The
basis of the ordinance, rather, is a belief that violent video games cause
temporal harm by engendering aggressive attitudes and behavior, which might
lead to violence."[74]  Obscenity, therefore, was seen as irrelevant to an
ordinance dealing with potential harm caused by video games; with
obscenity, "offensiveness is the offense," the court said.[75]
The appellate court in American Amusement went on to contest the validity
of any restriction placed upon violent video games based on their potential
for harm with a vigorous attack on the application of the experiments cited
as support for the ordinance:
Those studies do not support the ordinance. There is no indication that the
games used in the studies are similar to those in the record of this case
or to other games likely to be marketed in game arcades in Indianapolis.
The studies do not find that video games have ever caused anyone to commit
a violent act, as opposed to feeling aggressive, or have caused the average
level of violence to increase anywhere.[76]
After disqualifying the ordinance's basis in obscenity law, as well as any
justification for it based on the medium's potential for harm, the court
concluded that it is "unlikely" that any such ordinance would survive a
constitutional challenge, unless the games involved were more graphically
realistic or lacked narrative elements – and even in these cases, the court
only noted that "a more narrowly drawn ordinance might survive a
constitutional challenge."[77]
In the tort cases, the relevant issue was whether the intent of the
expression in video games was to cause immediate harm.  All three opinions
concluded that the First Amendment precluded the award of any damages
unless the expression met the criteria for restriction defined in
Brandenburg v. Hayes: speech that is "directed to inciting or producing
imminent lawless action and is likely to incite or produce such
action."[78]  In each case, the court determined that the intent of the
creators and distributors of the games in question failed to meet the
Brandenburg test and were thus exonerated from tort responsibility by the
First Amendment's protection.[79]  The James court's opinion regarding the
applicability of the Brandenburg test to video games and their effects
exemplifies the decisions: "This glacial process of personality development
is far from the temporal imminence that we have required to satisfy the
Brandenburg test."[80]
Even considering the Rothner court's allowance of a time, place, and manner
regulation, these cases finding video games to be free speech therefore
advocate no content-based restriction of video games.  Once again, however,
the Interactive Digital ruling is in opposition.  While the court did not
find video games to be a protected form of speech in this case, the opinion
goes on to speculate whether the ordinance in question would apply "even if
plaintiffs could establish that the video games are a form of
expression."[81]  In applying strict scrutiny to the content-based
regulation, which forbade minors from accessing violent video games without
parental permission, the court in Interactive Digital ruled that the
ordinance addressed a compelling government interest and was narrowly
tailored enough to survive a constitutional challenge.[82]
Interestingly, the primary witness used to support the government interest
was psychologist Craig Anderson, just as in American Amusement.  Unlike the
court's assessment in American Amusement, however, the Interactive Digital
opinion found Anderson's research and testimony more compelling: "For
plaintiffs to now argue that violent video games are not harmful to minors
is simply incredulous. Therefore, the Court finds that the County has
compelling interests in regulating the distribution of violent video games
to minors."[83]  In this manner, the Interactive Digital court concluded
that the ordinance would survive strict scrutiny even if video games were
protected speech – which the court ruled they were not.[84]  Once again,
this stands in opposition to other rulings addressing the regulation of
video games protected by the First Amendment, especially the American
Amusement ruling on a very similar ordinance.
Irreconcilable Differences?
It may first appear that the holdings in America's Best and Malden that
video games are not protected speech cannot be reconciled with later
opinions, such as American Amusement, James, Sanders, and Wilson, which
held that the reverse is true and that such speech should not be subject to
tort suits and content-based regulation.[85]  However, some of this
apparent conflict can be explained by the development of the medium, both
in technology and content.  As noted above, Sherry finds problems with
meta-analysis of video game research because of the "generational"
differences in games.[86]  This evolution may also explain the concurrent
evolution in federal courts' stance on video games through the years; video
games have become increasingly more advanced, and thus more capable of
expression.  In the Wilson opinion, the court expands upon this:
In sum, the cases are reconcilable on this point: While video games that
are merely digitized pinball machines are not protected speech, those that
are analytically indistinguishable from other protected media, such as
motion pictures or books, which convey information or evoke emotions by
imagery, are protected under the First Amendment. … In short, the label
"video game" is not talismanic, automatically making the object to which it
is applied either speech or not speech.[87]
Given this view, the inconsistencies in many of the rulings' treatment of
video games is not problematic; they merely represent changes in the medium
over time, and possibly the time required for the medium to gain a higher
level of societal acceptance.
However, this evolution of the medium does not explain the Interactive
Digital ruling, nor do factual differences between Interactive Digital and
recent cases.  Especially in comparison with the most factually similar
federal case, American Amusement, it appears the diametrical opposition of
the Interactive Digital court to all its contemporaries' conclusions is not
reconcilable.  While the court in American Amusement – and most other
recent cases – found video games to be protected expression all but immune
to content-based regulation, the Interactive Digital opinion is more
similar to federal cases from nearly two decades previous.  In the absence
of significant differences in the ordinances addressed in American
Amusement and Interactive Digital, the only reasonable conclusion is that
one ruling is incorrect.
Conclusion
When federal cases involving video games and free speech are compared, a
pattern emerges.  As years go by and the medium matures, the courts tend to
be more receptive to recognizing the medium as protected free
speech.  Similarly, they are more reluctant to uphold regulation of the
games that would limit the producers' and purveyors' First Amendment
rights.  This pattern is steady and slow, involving seven federal cases
over almost 20 years.
However, the Interactive Digital decision forces this advancement back to
its start, despite the fact that one must go nearly that far back in time
to find judicial support for the decision. Despite prevailing recent
judicial opinion that video games are protected speech and a lack of
consensus in the academic research dealing with video games and real-life
aggression,[88] the Interactive Digital court concluded that video games
are not protected speech but do cause aggression.  Though this ruling might
have been typical in the early 1980s, it now represents a clear
contradiction to the existing climate in relevant cases.
This is a contradiction that should be resolved, and it will be if the
Interactive Digital decision is overturned on appeal.  If not, however, the
inconsistency will remain, and its eventual resolution is unknown.  If the
Interactive Digital decision is representative of the shape of things to
come, however, the First Amendment will certainly lose some ground in the
scope of this protection.  The societal implications of such limitations
are difficult to ascertain, but we can look to the American Amusement
decision for one perspective on the issue:
People are unlikely to become well-functioning, independent-minded adults
and responsible citizens if they are raised in an intellectual bubble. … To
shield children right up to the age of 18 from exposure to violent
descriptions and images would not only be quixotic, but deforming; it would
leave them unequipped to cope with the world as we know it."[89]
In light of this comment, it is clear that more than fun and games is at
stake in this controversy.  While many may look to the possible dangers
video games will present to children if the Interactive Digital decision is
overturned, perhaps we ought to cast our thoughts toward what dangers are
presented when such regulations are upheld.
[1]  Interactive Digital Software Association, 2001Game Sales and Graphs
(May 2002), at http://www.idsa.com/2001SalesData.html (last visited October
18, 2002).
[2]  John L. Sherry, The Effects of Violent Video Games on Aggression: A
Meta-Analysis, 27 HUM. COMM. RES. 409, 410 (2001).
[3]  Move Over, Kids – Adults Like Video Games Too, USA TODAY, March 1,
2001, at 6A.
[4]  Digiplay Initiative, Gaming Facts, at
http://www.digiplay.org.uk/facts.php (last visited October 19, 2002).
[5]  Sherry, supra note 2, at 410.
[6]  Video games and push-button aggression, CQ RESEARCHER, March 26, 1993,
at 279.
[7]  Angela J. Campbell, Self-Regulation and the Media, 51 FED. COMM. L.J.
711, 752-53 (1999).
[8]  David C. Kiernan, Note, Shall the Sins of the Son Be Visited upon the
Father? Video Game Manufacturer Liability for Violent Video Games, 52
HASTINGS L.J. 207, 208-09 (2000).
[9]  Wrong Answers, USA TODAY, March 26, 2001, at 18A.
[10]  James v. Meow Media, Inc., 90 F. Supp. 2d 798, 811 (W.D. Ky. 2000),
aff'd, 300 F.3d 683 (6th Cir. 2002).
[11]  Sanders v. Acclaim Ent., Inc., 188 F. Supp. 2d 1264 (D. Colo. 2002).
[12]  Wilson v. Midway Games, Inc., 198 F. Supp. 2d 167, 169 (D. Conn. 2002).
[13]  Id. at 183.
[14]  See, e. g., James v. Meow Media, Inc., 300 F.3d 683, 696 (6th Cir. 2002).
[15]  Interactive Digital Software Association v. St. Louis County, Mo.,
200 F. Supp. 2d 1126 (M.D. Mo. 2002).
[16]  Id. at 1134.
[17]  American Amusement Machine Association v. Kendrick, 244 F.3d 572 (7th
Cir. 2001).
[18]  Id. at 576-78.
[19]  Id. at 577.
[20]  Brief of Amici Curiae Banet-Weiser et al., Interative Digital
Software Association (No. 02-3010).
[21]  Mark Jurkowitz, Appeals Court Holds Key in Battle Over Regulation of
Violent Video Games, THE BOSTON GLOBE, Oct. 2, 2002, at D1.  The U. S.
Supreme Court has heard one case significantly involving video games: City
of Mesquite v. Aladdin's Castle, Inc., 455 U. S. 283 (1982).  However, this
case addressed the right of game players to assemble and the
constitutionality of examination of applicants' possible "association with
criminal elements" in the licensing of amusement machine establishments;
First Amendment protection of video games as speech was not considered.
[22]  Sherry, supra note 2, at 410.
[23]  Ellen Wartella & Byron Reeves, Historical Trends in Research on
Children and the Media: 1900-1960, 35 J. COMM. 118, 118-33 (1985).
[24]  Jeanne Funk, Reevaluating the Impact of Video Games, 32 CLINICAL
PEDIATRICS 86, 86-90 (1993).
[25]  E. g., Craig A. Anderson & Karen E. Dill, Video Games and Aggressive
Thoughts, Feelings and Behavior in the Laboratory and in Life, 78 J. of
PERS. & SOC. PSYCHOL. 772, 772-790 (2001).
[26]  E. g., Derek Scott, The Effects of Video Games on Feelings of
Aggression, 129 J. PSYCHOL. 121, 121-40 (1995).
[27]  Id.
[28]  Sherry, supra note 2, at 427.
[29]  Id. at 424.
[30]  Scott, supra note 26.
[31]  Kevin E. Barton, Note, Game Over! Legal Responses to Video Game
Violence, 16 Notre Dame J. L. Ethics & Pub. Pol'y 133, 162 (2000).
[32]  Id. at 141.
[33]  Id. at 139.
[34]  Rupal Ruparel Dalal, Congress Shall Make No Law Abridging Freedom of
Speech – Even if it Causes Our Children to Kill? 25 Seton Hall Legis. J.
357 (2001).
[35]  Id. at 383.
[36]  Id. at 364.
[37]  Juliet Dee, Basketball Diaries, Natural Born Killers and School
Shooting: Should There be Limits on Speech Which Triggers Copycat Violence?
77 DENV. U.L. REV. 713, 737 (2000).
[38]  Id. at 734.
[39]  Kiernan, supra note 8, at 250-51.
[40]  Clay Calvert, Framing and Blaming in the Culture Wars: Marketing
Murder or Selling Speech? 3 VAND. J. ENT. L. & PRAC. 128, 129 (2000)
(addressing primarily a case dealing with rock music, but argument extended
to include a number of other media forms including video games).
[41]  Id. at 139.
[42]  Clay Calvert, Violence, Video Games, and A Voice of Reason: Judge
Posner to the Defense of Kids' Culture and the First Amendment, 39 SAN
DIEGO L. REV. 1, 30 (2002).
[43]  Id. at 25.
[44]  Timothy L. Jacobs, Comment, School Violence: An Incurable Social Ill
that Should Not Lead to the Unconstitutional Compromise of Students'
Rights, 38 DUQ. L. REV. 617, 645 (2000).
[45]  Anna Everett, P. C. Youth Violence: "What's the Internet of Video
Gaming got to do with it?" 77 DENV. U.L. REV. 689, 690 (2000).
[46]  Richard C. Ausness, The Application of Product Liability Principles
to Publishers of Violent or Sexually Explicit Material, 3 FLA. L. REV. 603,
670 (2000).
[47]  Sherry, supra note 2, at 410.
[48]  These cases are Interactive Digital Software Association v. St. Louis
County, Mo., 200 F. Supp. 2d 1126 (M.D. Mo. 2002); James v. Meow Media,
Inc., 300 F.3d 683 (6th Cir. 2002); Sanders v. Acclaim Ent., Inc., 188 F.
Supp. 2d 1264 (D. Colo. 2002); Wilson v. Midway Games, Inc., 198 F. Supp.
2d 167 (D. Conn. 2002); American Amusement Machine Association v. Kendrick,
244 F.3d 572 (7th Cir. 2001); Rothner v. Chicago, 929 F.2d 297 (7th Cir.
1991); Malden Amusement Co., Inc. v. City of Malden, 582 F. Supp. 297
(D.Mass 1983); America's Best Family Showplace Corp. v. New York, 536 F.
Supp. 170 (E.D.N.Y. 1982).
[49]  536 F. Supp 170 (E.D.N.Y. 1982).
[50]  Id. at 173.
[51]  Id. at 174
[52]  Id.
[53]  Id.
[54]  582 F. Supp. 297 (D.Mass 1983).
[55]  Id. at 299.
[56]  Id.
[57]  929 F.2d 297 (7th Cir. 1991)
[58]  Id. at 303 (emphasis in original).
[59]  Supra, note 17.
[60]  244 F.3d 572 (7th Cir. 2001).
[61]  Id. at 573.
[62]  Id. at 576-78.
[63]  Although it upheld the ordinance, the U.S. District Court for the
Southern District of Indiana also noted that some video games might be
protected expression:  "It is difficult for First Amendment purposes to
find a meaningful distinction between the Gauntlet game's ability to
communicate a story line and that of a movie, television show, book, or --
perhaps the best analogy -- a comic book." American Amusement Machine Ass'n
v. Cottey, 115 F. Supp. 2d 943, 952 (S.D. Ind. 2000).
[64]  Id. at 577.
[65]  536 F. Supp. 170, 174 (E.D.N.Y. 1982).
[66]  It should be noted that this holding regarding video games and
protected expression is only applicable to the context of the particular
cases: E. g., James v. Meow Media, Inc., 300 F.3d 683, 696 (6th Cir. 2002)
("Our decision here today should not be interpreted as a broad holding on
the protected status of video games, but as a recognition of the particular
manner in which James seeks to regulate them through tort liability.").
[67]  200 F. Supp. 2d 1126, 1134 (M.D. Mo. 2002).
[68]  Id. at 1133-1134.
[69]  As the first two cases in this analysis did not find video games to
be protected free speech, they also do not address appropriate regulation
of protected speech and are thus not discussed in this section.
[70]  929 F.2d 297, 303-04 (7th Cir. 1991).
[71]  244 F.3d 572, 573 (7th Cir. 2001).
[72]  Id. at 574.
[73]  Id.
[74]  Id.
[75]  Id. at 575.
[76]  Id. at 578-79.
[77]  Id. at 579-80.
[78]  395 U.S. 444, 447 (1969).
[79]  198 F. Supp. 2d 167, 182 (2002); 188 F. Supp. 2d 1264, 1282 (2002);
300 F.3d 683, 698-699 (2002).
[80]  300 F.3d 683, 698 (6th Cir. 2002).
[81]  200 F. Supp. 2d 1126, 1135 (M.D. Mo. 2002).
[82]  Id. at 1138-1139.
[83]  Id. at 1138.
[84]  Id. at 1141.
[85]  Except in instances where the Brandenburg test or strict scrutiny is
met; however, the courts in these cases do not indicate any examples,
apparently considering this a hypothetical situation.
[86]  Sherry,  supra note 2, at 424.
[87]  198 F. Supp. 2d 167, 181 (2002).
[88]  See, e. g., Brief of Amici Curiae at 4-5, Banet-Weiser et al.,
Interative Digital Software Association (No. 02-3010).
[89]  244 F.3d 572, 577 (2002).