"...the First Amendment protects entertainment, as well as political and ideological speech." Eighth Circuit Rules First Amendment Protects Video Games

A federal appeals court Tuesday struck down an ordinance enacted by St. Louis County, Mo., that made it unlawful to sell, rent, or make available graphically violent videogames to minors without parental consent on the grounds that such a law abridged the freedom of expression protected by the U.S. Constitution.

The county had claimed that because video games are a new medium, they must either "express or inform" in order to receive First Amendment protection. But the U.S. Court of Appeals for the Eighth Circuit disagreed, noting, "the Supreme Court has long emphasized that the First Amendment protects entertainment, as well as political and ideological speech." The court continued, "If the First Amendment is versatile enough to shield the paintings of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky of Lewis Carroll, we see no reason why ... video games are not entitled to a similar protection."

The appellate court also rejected the county's assertion that the ordinance was valid because "violent" video games could be classified as "obscene" and, therefore, merited no free speech protection. "Simply put, depictions of violence cannot fall within the legal definition of obscenity for either minors or adults," the decision explained.

Having failed with both the "new medium" and obscenity arguments, the county had to show that the anti-video game ordinance was necessitated by an interest so compelling as to trump the First Amendment. To meet such exacting scrutiny, the county noted that protecting the "psychological well-being of minors" was of paramount importance and that the government had a compelling interest in "assisting parents to be the guardians of their children's well-being." To support these claims, the county introduced controversial studies showing related increases in aggressive behavior among adolescents who played "violent" video games.

Nevertheless, after agreeing that protection of the well-being of children was a compelling interest in the abstract, the appeals court ruled such an interest could not justify infringing upon constitutionally protected free expression rights in this case. Suggesting the equivocal nature of the video game violence studies, the court explained that "when the government defends restrictions on speech it must do more than simply posit the existence of the disease sought to be cured ... [it] must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." The court also noted that "[t]o accept the County's broadly-drawn interest as a compelling one would be to invite legislatures to undermine the First Amendment rights of minors willy-nilly under the guise of promoting parental authority."

The decision rendered the anti-video game ordinance a nullity and is consistent with decisions by other federal appellate courts striking down state and local attempts to regulate or restrict access to video games based up their content, most notably American Amusement Machine Association v. Kendrick decided by the U.S. Court of Appeals for the 7th Circuit in 2001.

June 5, 2003
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