• “[V]ideo games are not protected speech within the First Amendment[.]” Malden Amusement Co. v. City of Malden , 582 F.Supp. 297, 299 (D. Mass. 1983).(right click>save as)

“The question of video games as protected speech requires a factual determination of whether video games import sufficient communicative, expressive or informative elements to constitute expression protected under the first amendment. Moreover, a resolution of this issue will also determine the standard under which the town's regulations are to be scrutinized…. Each medium of expression, of course, must be assessed for first amendment purposes by standards suited to it, for each may present its own problems. It seems clear that before entertainment is accorded first amendment protection there must be some element of information or some idea communicated. That element is clearly lacking here. Therefore, this court finds that video games are not a form of speech protected by the first amendment.” Kaye v. Planning & Zoning Com., 472 A.2d 809, 812 (Conn. Super. Ct. 1983). (right click>save as)

 

• The test for whether material is “obscene” was stated by Chief Justice Burger:
  • “A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value.” Id. at 24.
• Whether a video game is “obscene” will depend purely on its content. While the thought that a video game could potentially be obscene was unheard of at the dawn of the video game era, controversial video games today are often argued to be obscene material because of the violence or sexual implications contained therein. The thought that video games are “obscene” under the First Amendment has been employed by certain lawmakers who try to ban particular video games from their town, county, or state. See Am. Amusement Machine Ass'n v. Kendrick, 244 F.3d 572 (7 th Cir. 2001). In Kendrick , like other cases, the court found the attempted legislation to be unconstitutional and the video game's violent content to not qualify as “obscene” under the First Amendment. However, it seems only a matter of time before a video game of an entirely sexual nature is created and widely distributed, thus pushing the question of video game obscenity back in front of the courts. Depending on the sexually graphic nature of the video game, the game would likely be equated with obscene movies or pictures, and thus be denied First Amendment protection.

• In Bradenburg the Court stated, “[T]he constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Id. at 447.
• Some cases have been brought against video games for inciting violence among children. In Wilson v. Midway Games, 198 F.Supp. 2d 167 (D. Conn. 2002)(right click>save as), a mother sued the makers of Mortal Kombat because, she alleged, the game incited her son's friend to stab and kill her son. The mother said the friend was addicted to the game and was trying to perform a “finishing move” on her son. The district court did not find the game to be inciting violence because the mother could not prove that the game makers intended its customers to participate in violent activity, among other things.
• It is unlikely for a court to find a video game incites violence. As one scholar stated, “To argue successfully that a video game amounts to incitement would require, at a minimum, evidence that the video game maker intended the game to produce imminent lawless action, and that playing the game was actually the immediate cause of the unlawful action.” Carmen Hoyme, Freedom of Expression and Interactive Media: Video Games and the First Amendment , 2 First Amend. L. Rev. 377, 384-85 (2004).

• Justice O'Connor described the term “true threats” as “encompass[ing] those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” Id. at 359.