Go Go First Amendment!

Turns out that video games are protected by the First Amendment, at least according to the Eighth Circuit Court of Appeals, which today overturned a St. Louis ruling that video games do not constitue prtected speech. The entire 8th Circuit Court Opinion is here, but here are some choice quotes:

“If the first amendment is versatile enough to ‘shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll,’ we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection. The mere fact that they appear in a novel medium is of no legal consequence.”


“We reject the Countyís suggestion that we should find that the ‘graphically violent’ video games in this case are obscene as to minors and therefore entitled to less protection. It is true that obscenity is one of the few categories of speech historically unprotected by the first amendment. But we have previously observed that ‘[m]aterial that contains violence but not depictions or descriptions of sexual conduct cannot be obscene.’ Video Software, 968 F.2d at 688. Simply put, depictions of violence cannot fall within the legal definition of obscenity for either minors or adults.”

And, critically:

“While it is beyond doubt that ‘parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society,’ Ginsberg v. New York, (1968), the question here is whether the County constitutionally may limit first amendment rights as a means of aiding parental authority. We hold that, under the circumstances presented in this case, it cannot.”

Rock on, First Amendment! And welcome to the 21st Century.

18 Comments on “Go Go First Amendment!”

  1. While I’m always pleased to see a victory for the first amendment and for freedom of expression, I am somewhat disturbed by one of the passages that John quotes, specifically:

    ‘[m]aterial that contains violence but not depictions or descriptions of sexual conduct cannot be obscene.’

    What does that say about us as a culture? Perhaps this quote is being taken out of a larger context that I’m unaware of, but how can someone say that depictions of sex are obscene but depictions of violence are not?

    This is particularly an issue where I live. Full disclosure: I live in Salt Lake City where our local theocracy tends to do the thinking for the general populace and there’s an extremely large disparity between the puritanical types and the people of a more, um, open-minded perspective. It seems like every other week there’s a lawsuit because someone’s precious darling baby saw a poster of a bikini-clad woman in the window of Victoria’s Secret but no one ever mentions the same child sneaking a peek at the posters advertising the latest shoot-em-up game at the software store next door. (Not that I have anything against video games or violent entertainment – I’ll get to that.)

    In one case that really disturbed me, a local videostore chain, the only locally-owned chain with enough stores and a large enough selection to compete with the Blockwoods and Hollybusters, was driven out of business because some inattentive mother allowed one of her brood to wander into a sectioned-off adults-only area. When she found her missing tyke, she was offended by what she saw in this room – which had signs all over the place warning kids to stay out – and promptly filed a lawsuit that destroyed the entire chain. (The owner of the chain actually won the lawsuit – his adult section was perfectly legal – but the expenses wrecked him.) Ironically, I’m certain that a statistical analysis of local box-office results would show that violent movies do quite well here in the heart of Mormondom.

    Now, getting to my point (at last!), I’ve got nothing against video games or violence in my media (I’ve got plenty of violent flicks in my DVD collection). I figure that grown-ups can make their own choices about what they consider to be entertainment and I am unconvinced by those who say that violence in movies and games leads people to violent behavior. However, I also have nothing against sex in my entertainment, and while I happily accept that not everyone wants to see that sort of content, I am deeply troubled by this double-standard that American society lives by, namely that an image of someone’s head being blown off is somehow less offensive than an image of someone getting head.

  2. “I am deeply troubled by this double-standard that American society lives by, namely that an image of someone’s head being blown off is somehow less offensive than an image of someone getting head.”


    I can watch on TV a man use a chainsaw on someone – something which *rarely* happens and something we *don’t* want to encourage in people. But I cannot watch two consenting adults have sex – something which happens *often* and something we *do* want to encourage in people.

    That’s just wrong.

  3. very true. my condolences to the owner of the video chain. it’s unfortunate that a legitimate business could fail because of someone careless of their child’s whereabouts. in my opinion, the input a child recieves should be left up to the parent, but that story is just plain sad.

  4. Wait… so, what you’re telling me is that my video-games ARE talking to me? That St. Louis ruling had me believing it was just the acid…

  5. I am so happy about this I could almost show a glimmer of emotion through my video game violence-deadened facade.

  6. Robocop was the first movie I ever saw that deserved an ‘X’ rating for violence. It was obscene.

  7. Tripp, the films of Paul Verhoeven (Robocop, Total Recall) were among the examples I was thinking of when I wrote my big diatribe about sex vs. violence. I’ve got a pretty strong stomach, but those flicks make me shudder (too bad, too, as I really enjoy the overall storylines of both). The video store that I wrote about carried a large stock of violent films, including a lot of unrated, European, Asian and underground stuff that could really turn a normal person’s stomach (I remember the Faces of Death series being available there) but no one ever said a word about those films, which were mixed in with the general titles. The thing that led to a lawsuit was a small assortment of cable-version adult videos that were kept segregated in a not-too-obvious corner of the store, completely invisible to the casual passerby.

  8. Trip, Verhoeven’s films (as Jason pointed out) get *very* violent very quickly. There’s Robocop, with Murphy’s murder early on (hope I didn’t spoil anything for you lot), of course, but consider Starship Troopers. “Guys, we haven’t had any gore for at least 3 minutes! Let’s see some spiky alien death!”

    Now *that* one bothered me (though to be fair it looked very cartoony); for some reason I never had a problem with Robocop, despite the violence. My problem was more with the plot: invincible robot killing crooks; ohh-oh, one crook can’t be taken down. Wait, now he can. Whoopee. Not exactly exciting.

  9. Well, john, just today I read your OPM column on the first amendment and video games. Seems like it was one day too early…

  10. The sex vs violence double standard is one thing, definitely needs looking at.. But I feel like I’ve missed something about this case (I’m in the UK, bit distant :P), I was never entirely clear on how this was ever a 1st amendment situation to begin with, no one was saying you can’t make the games, or sell them, they were just proposing to legislate age of sale similarly to film access or alcohol and tobacco sales. Now I love computer games, I don’t get out much for various reasons so I’ll take whatever entertainment I can get :P, and as a well adjusted adult I can handle just about anything, one of my current favorites is Postal 2, and it’s pretty hard to get more f-ed up than that in the computer game arena (exception, 1984’s Chiller arcade game :P). But I’d be pretty worried at the thought of an 8 yr old getting hold of this game, it’s not for the young impressionable mind. Now I fully support parental responsibility, parents should know what their kids are buying and doing on their computers, but if a law can help by making sure some idiot clerk doesn’t sell an ultra-violent game to a child I’m entirely behind it, just as long as the law doesn’t try to stop the store from having the game in the first place! Censorship NEVER, but was this censorship??

  11. Guy, I’m not sure of the specifics of this video game case but there have been movements afoot in various parts of the US to completely outlaw violent video games, sexually explicit films, and other forms of entertainment that one group or another finds offensive. I’m with you in that I don’t care what adults watch/read/play and I do think that there is and should be entertainments designed for adults that children should not have access to. I also agree that there’s nothing wrong with some sort of legal restrictions on allowing children access to adult-oriented media (in fact, I’d be thrilled if some sort of sensible and enforcable regulation were to come along). Unfortunately, the zealots aren’t happy with that. As in the case of my local video store, they’d rather that no one have access to the stuff they don’t like rather than risk a child seeing something they shouldn’t. Oddly enough, these zealots seem to be the ones who do the worst job of monitoring their children, at least where I live.

  12. Oh. Finally. Clue.

    I might be overly-cynical, but my first thought was “someone in that Circuit court actually _plays_ video games.” See, they mention pictures, graphic design, concept art, sounds, music, _stories_ and _narrative_. They have ruled that video games just might have those things and be a storytelling medium, much like—wait for it—cinema!

    For some reason I was late in reading this, but it’s just made my day.

  13. There is a problem where game rental stores and some retailers are not enforcing the ‘don’t rent/sell to minors’ restrictions. I say if that is the problem, then go after them!

    After all, Wal-Mart was capable of putting up a ‘check that purchaser is over 18’ message when I bought a can of spray paint (I peeked), so they ought to be able to do the same with games.

    And then I can make some extra cash – walk around the corner of Wal Mart and hear ‘Hey Mister, here’s 60 bucks for Grand Theft Auto American Vice’.

  14. There’ll always be some nutter trying to stop you from expresssing yourself even to those who do want to hear what you have to say and can generally handle it; and there should always be someone ready to fight them. You have to pick your fights wisely though and I find it disturbing IDSA wasted good time, effort, and money pursuing a law that would (as I understand it) have had no effect at all on freedom of expression. What I see here though is a freedom of expression fight going off track and fighting instead against a simple sales restriction; has the IDSA lost its focus so badly it’s acting in a manner reminiscent of zealotry rather than good sense?

    Two quotes I find disturbing: First one John brought up “Video Software, 968 F.2d at 688. Simply put, depictions of violence cannot fall within the legal definition of obscenity for either minors or adults.” To put it simply, I don’t know the legal ramifications and background here, but when one of my day’s missions is to pay my ‘respects’ to dad’s grave (by taking a leak on it) and upon doing so (**POSTAL 2 SPOILER WARNING**) I get whacked on the head with a shovel by a couple rednecks and find myslf waking up dressed in a ‘gimp suit’ (one of em S&M black lycra full body suits with spikes n other nasty bits), I call that a qualifier for being restricted from sales to minors. Am I the only one who thinks you have to be a bit of a fanatic to scream 1st amendment when all that’s being said is “sell it, but just not to kids please”?

    And my second quote: [this latest ruling] “will give pause to those who would use the power of the state to regulate speech they find objectionable”


    “sends a powerful signal to government at all levels that efforts to regulate consumersí access to the creative and expressive content found in video games will not be tolerated.”

    -Doug Lowenstein, President, IDSA

    “regulate consumers’ access” ooo yeah, that really sounds like censorship to me. I’m sorry but this guy doesn’t sound like a white knight of free speech to me, he sounds like an anti-government fanatic.

    *sigh* So many legitimate evils, so many people who COULD spend their time fighting them, instead they’re as bad as the rest, picking on something they don’t like, whether it makes sense or not.

  15. This is a few days late, but I have to say something as a response to Guy, and a few others. First, the ISDA is an industry group, not a civil liberties group. They were fighting the law on whatever grounds they thought they could win. If they thought that “the right to keep and bear (bare?) _virtual_ arms” was guaranteed by the Constitution, they’d fight the law on 2nd Amendment grounds. They fight the law on 1st Amendment grounds because the courts have decided in past rulings that freedom of speech applied to “speech to children.” The government can’t be put in the position of blocking children from being exposed to protected speech.

  16. Whilst the IDSA is indeed an industry group and I have no doubt in my mind they’re acting out of their members’ commercial self-interest, both the quotes above, and this from their mission statement “The IDSA offers services to interactive entertainment software publishers including a global anti-piracy program, owning the Electronic Entertainment Expo trade show, business and consumer research, government relations and First Amendment and intellectual property protection efforts.” has them presenting themselves up front as *supposed* champions of the first amendment. This ain’t to say they’re either good or sensible about it mind you.

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