Introduction

Imagine following a rugged American soldier during World War II as he infiltrates the Axis frontlines on a dangerous mission. He and his allies carefully and strategically battle the enemy forces on the lush landscape. The hero skillfully avoids enemy fire while directing his squad and targeting enemy soldiers.

The brutal combat is portrayed in exact and frightening detail. The sounds of warfare penetrate the air as cannons fire, planes zoom overhead, grenades explode, and machine guns rapidly fire shots in all directions. The soldier hides behind the ruins of a demolished building and peers into his scope. As the thick black smoke from a recent grenade explosion clears, the faint outline of an enemy combatant appears with weapon in hand. Holding his rifle steadily, the hero squeezes the trigger.[1]

The First Amendment to the United States Constitution provides that “Congress shall make no law . . . abridging the freedom of speech.”[2] The Constitution protects speech in a novel or a periodical that portrays exploits identical to those of the hypothetical protagonist.[3] When a group of live actors performs this same scene, the Constitution undoubtedly protects the narrative as a form of expression.[4] Courts invariably hold that the same scene in a movie or on television warrants protection as free speech.[5] Courts would likely view this scene as constitutionally protected speech if it was part of the content of an Internet site.[6] However, if the same events had appeared in a video game, the First Amendment protections that protect the other media forms may not apply.

Recent federal district and circuit court decisions have been split on the issue of whether video games constitute speech under the First Amendment.[7] The issue arises primarily in the following two contexts: (1) through a merchant’s challenge to a local ordinance that restricts children’s access to video games or (2) through a tort claim filed against the developer or manufacturer of a video game, alleging that a violent video game influenced a person to commit violent acts.[8] Most courts have “appropriately refused to impose strict product liability” in cases involving information such as the content of video games, which is an intangible contained in a tangible medium.[9] Lacking a clear test from the Supreme Court, the lower courts vary on the applicable standard for determining whether a video game qualifies as speech.[10]

Part I of this Note summarizes the First Amendment jurisprudence regarding different types of expression or media and regarding the standards that courts have established to determine which forms of content constitute speech.[11] Part II reviews the early decisions, which primarily found no expressive content in first-generation video games.[12] Part II also discusses the shift by some courts that have recognized at least the possibility that some video games are speech. Part II concludes with an analysis of recent decisions and the standards set forth by the courts.[13] Part III evaluates, from both the tort and regulatory perspectives, the impact of recognizing video games as speech and examines policy considerations.[14] Finally, this Note concludes by summarizing the applicable law and by recommending a standard for courts to follow in cases that involve the applicability of the First Amendment to video games.[15] This Note concludes that, given the realities of modern video games and the broad array of expressive and non-expressive content, courts should apply a case-by-case approach in determining whether video games are constitutionally protected speech instead of deciding conclusively that all video games are (or are not) protected speech.[16]

I.   Summary of First Amendment Jurisprudence

A.   Media Other Than Video Games

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.”[17] “The First Amendment applies to the states through the Due Process Clause of the Fourteenth Amendment.”[18] “While First Amendment function at the time of its conception is clear, scholars continue to debate the Framers’ overarching intent.”[19] “[A]s a general matter, ‘the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’”[20] Courts have not limited the constitutional protection to political speech; “[e]ven dry information, devoid of advocacy, political relevance, or artistic expression, has been accorded First Amendment protection.”[21]

The First Amendment incontrovertibly extends to print media as well as spoken media.[22] In 1952, the United States Supreme Court extended protection to motion pictures.[23] In Joseph Burstyn, Inc. v. Wilson,[24] the Court rejected claims that motion pictures “do not fall within the First Amendment’s aegis because their production, distribution, and exhibition is a large-scale business conducted for private profit” or that they “possess a greater capacity for evil, particularly among the youth of a community, than other modes of expression.”[25] Additionally, the Court has reaffirmed this principle by holding that the free speech protection afforded to the print media extends to plays and live performances.[26] Courts have consistently held that Internet sites are speech, although not without exception.[27]

B.   Applicable Standard of Review in Video Game Cases

No precise test exists “for determining how the First Amendment protects a given form of expression.”[28] The Court has not yet squarely decided that video games may, at least in some circumstances, constitute speech under the First Amendment. Finding no direct guidance, most lower courts considering the issue rely on Southeastern Promotions, Ltd. v. Conrad,[29] a case in which the Court held that “[e]ach medium of expression . . . must be assessed for First Amendment purposes by standards suited to it,” as a guideline for determining whether to extend First Amendment protection to any new or existing medium like video games.[30] Unfortunately, lower courts have not consistently interpreted the Supreme Court’s guidance.[31] To fall within the First Amendment, entertainment content like video games “must be designed to communicate or express some idea or some information”; courts will not afford a presumption that all conduct is expressive.[32]

II.   Varying Approaches to Whether Video Games Are Constitutionally Protected Free Speech[33]

A.   The Courts Support Movements to Curb the Effects of Pac-Man Fever: The Early Decisions

When video games began to enjoy mass appeal in the early 1980s, federal and state courts consistently held that video games are not speech.[34] In those cases, the courts upheld local zoning ordinances and other government restrictions on access to video games.[35] The earliest decisions simply held that all video games were “pure entertainment with no informational element” and thus were not speech because they more closely resembled a “pinball game, a game of chess, or a game of baseball.”[36] These early decisions established a precedent that some communicative aspect must be apparent in a medium for courts to afford First Amendment protection to that medium, although the Supreme Court has never imposed this restriction.[37] While the available technology severely constrained the communicative aspects of early video games, some decisions recognized that, as technology increased, there would be a time in the future when video games might contain sufficient expressive elements to qualify as speech.[38] However, the courts that envisioned the possibility of certain video games achieving the status of free speech still recognized that “technological advancement alone . . . does not impart First Amendment status to what is an otherwise unprotected game.”[39]

This approach continued into the early 1990s, when the United States Court of Appeals for the Seventh Circuit decided in Rothner v. City of Chicago[40] not to extend constitutional protection to video games because the record lacked sufficient evidence of communicative elements in the games examined.[41] However, the court in Rothner recognized:

On the basis of the complaint alone, we cannot tell whether the video games at issue here are simply modern day pinball machines or whether they are more sophisticated presentations involving storyline and plot that convey to the user a significant artistic message protected by the [F]irst [A]mendment. Nor is it clear whether these games may be considered works of art [sic]. 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.[42]

Although this discussion is dicta, it opened the door for the court in American Amusement Machine Association v. Kendrick[43] to hold affirmatively that at least some video games contain constitutionally protected free speech.[44]

B.   Kendrick Hits the Reset Button on the Common Law Precedent

The decision by the United States District Court for the Southern District of Indiana in Kendrick marked the turning point in the common law view on video games.[45] Where the court in Rothner declined to decide the issue but merely recognized the possibility that contemporary video games may contain sufficient communicative content to afford them constitutional protection, the court in Kendrick more positively held that technological advancements have brought at least some video games into the ambit of constitutional speech.[46]

In Kendrick, a local ordinance required parental permission for minors to play or watch video games that contained content that was “‘harmful to minors,’” games that “include[d] either ‘strong sexual content’ or ‘graphic violence.’”[47] Video game manufacturers challenged the restrictions on graphically violent video games as a content-based restriction on speech that violates the First Amendment.[48] After reviewing the development process of the game from “concept art” to finished product and evaluating (1) the increasing complexity of video games and (2) the audio and visual presentation of the modern video games, the court determined that, “[a]s a general matter, video games will be protected under the First Amendment only if they include sufficient communicative, expressive, or informative elements to fall at least within the outer limits of constitutionally protected speech.”[49] The court refused to allow or deny categorical First Amendment protection for video games as a class but instead “discuss[ed] the actual evidence presented by the parties” because “[e]ach medium of expression . . . must be assessed for First Amendment purposes by standards suited to it[ because] each may present its own problems.”[50] Thus, the court determined that a case-by-case factual approach evaluating the communicative aspects of each video game is the approach most consistent with the United States Supreme Court’s First Amendment guidance as articulated in Southeastern Promotions, Ltd. v. Conrad.[51]

The court in Kendrick then examined the individual games in question and failed to find a “meaningful distinction between the Gauntlet [fantasy role-playing] game’s ability to communicate a story line and that of a movie, television show, book, or—perhaps the best analogy—a comic book.”[52]

The court rejected the idea that the higher level of interaction in video games distinguishes them from other media because many protected forms of expression, like town hall meetings, theatrical performances, and some fantasy books that require the reader to “make choices at critical points in the narrative,” are highly interactive.[53] After finding that video games widely vary in the amount of expressive content found in each game, the court concluded that some video games from the record qualified as constitutionally protected speech, while the speech elements of other video games presented were so inconsequential as to prevent them from garnering protection.[54] The district court denied the plaintiffs’ motion for a preliminary injunction, however, because the court felt that the City had a legitimate basis for regulation and that “the Ordinance [was] carefully tailored to serve that interest without infringing other First Amendment issues.”[55]

In reviewing the Kendrick decision, the United States Court of Appeals for the Seventh Circuit did not disturb the district judge’s conclusion that some, but not all, games may receive First Amendment protection.[56] In fact, because the ordinance may be an overly broad regulation on protected speech, the circuit court overturned the district court’s decision to deny the plaintiffs injunctive relief.[57] In writing for the majority, Judge Posner asserted that nothing about video games sufficiently distinguishes them from other forms of literature or media to justify allowing the government’s regulation of them in this broad manner.[58] Judge Posner found “age-old themes of literature, and ones particularly appealing to the young,” in one of the video games in the record.[59] Interestingly, the district court also reviewed that same “first person shooter” game and determined, by focusing on the plot elements, that it contained only marginal expressive content.[60] The circuit court did agree with the lower court, however, that interaction does not distinguish video games from other expressive content: “All literature (here broadly defined to include movies, television [programs], . . . other photographic media, and popular as well as highbrow literature) is interactive; the better it is, the more interactive.”[61]

C.   Responses to Kendrick

1.   Advancing the Assertion that Video Games Are Speech

In Sanders v. Acclaim Entertainment, Inc.,[62] the United States District Court for the District of Colorado supported the court’s determination in Kendrick that First Amendment protection extends to some video games by holding that the plaintiffs “failed to show that video games deserve anything less than full First Amendment protection.”[63] The plaintiffs were the family members of a teacher murdered at Columbine High School when two seventeen-year-old students shot and killed twelve people in a “deadly assault” on the school.[64] The plaintiffs brought suit against (1) movie producers and distributors, (2) video game manufacturers and distributors, and (3) pornographic Web sites, alleging that the defendants’ products presented an unreasonable risk of harm by unduly influencing minors and by desensitizing minors to violence.[65]

The district court found the plaintiffs’ claims that the First Amendment does not protect video games unpersuasive, citing to the Seventh Circuit precedent in Kendrick.[66] The court here examined each game as was done in Kendrick.[67] The court instead afforded constitutional protection to all video games at issue by finding that the plaintiffs failed to meet their burden of “show[ing] that video games deserve anything less than full First Amendment protection.”[68] Thus, the court in Sanders placed the burden of showing that the First Amendment does not protect video games on the plaintiff.[69]

In Wilson v. Midway Games, Inc.,[70] which the United States District Court for the District of Connecticut decided in the same month as the United States District Court for the District of Colorado decided Sanders, the court dismissed a plaintiff’s assertion that the interactive nature of video games takes them out of the realm of constitutional speech.[71] Instead, the court agreed with the Seventh Circuit precedent that the ability of some video games to convey a storyline is indistinguishable from the ability of movies, television programs, or Web sites to do the same; therefore, courts should make a factual determination for each game to decide whether that game contains sufficient expressive content to qualify as protected speech.[72] The court reasoned that “the label ‘video game’ is not talismanic, automatically making the object to which it is applied either [protected] speech or not [protected] speech.”[73]

In Wilson, a deceased child’s parent sued a video game manufacturer, alleging that video games influenced her son’s murderer to kill her son.[74] She alleged that the perpetrator, a friend of the victim, was so obsessed with the Mortal Kombat[75] fighting video game that he believed he was a character in the game.[76] The friend killed the plaintiff’s son with a maneuver used by a Mortal Kombat character: placing the victim in a headlock and stabbing him in the chest.[77]

The court quoted the Seventh Circuit Court of Appeals’ language in Kendrick that a video game’s level of interaction actually enhanced the communicative quality of the video game, just as the most expressive television or print media often invoke interaction or emotion with the viewer.[78] The court in Wilson applied the standard advanced by the court in Kendrick.[79] The court adopted the case-by-case determination for evaluating each video game, in which “video games that are merely digitized pinball machines are not protected speech[ and] 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.”[80] Finding that the First Amendment protection applied to the video game at issue, the court granted the defendant’s motion to dismiss for failure to state a claim.[81]

2.   Declining to Follow Kendrick’s Assertion that Video Games Are Speech

On April 19, 2002, the United States District Court for the Eastern District of Missouri declined to follow the Kendrick test in Interactive Digital Software Association v. St. Louis County.[82] In Interactive Digital Software Association, which involved challenges to a local ordinance restricting minors’ access to video games, the district court criticized the Kendrick ad hoc approach as unprecedented in the area of First Amendment speech.[83] The court instead called for a bright line rule under which video games as a medium either categorically “provide[] sufficient elements of communication and expressiveness to fall within the scope of the First Amendment” or, as a whole, fall outside of the constitutional scope.[84] Thus, the court determined that the Supreme Court’s guidance in Conrad, which called for independent evaluation of each “medium of expression” applied to each type of medium or content and not, as Kendrick proposed, to each individual work within that category of content.[85]

Furthermore, the district court examined the video games on the record and concluded that technological advances alone did not afford First Amendment protection to the games.[86] While the court in Kendrick asserted that the level of interaction enhanced the communicative aspects of video games, this court found that communication that is “singularly in furtherance of the game” or that is “totally divorced from a purpose of expressing ideas, impressions, feelings, or information unrelated to the game itself” falls outside the realm of protected speech.[87] The court further asserted that violence, a common characteristic in the games on record, does not by itself create expression.[88]

The court also dismissed analogies to movies or television programs because the purpose of those media, unlike video games, is to “‘entertain as well as to inform.’”[89] Unlike the court in Kendrick, the court in Interactive Digital Software Association failed to find relevance in the video game design process, which may entail scripts and artistic collaboration, because the court evaluated the final product and not the design process.[90]

The court, after rejecting the Kendrick factual determination process, applied a categorical analysis in determining that video games are not constitutionally protected free speech.[91] One concept that especially troubled the court was the idea that taking unprotected conduct like baseball and digitizing that conduct into a baseball video game would afford the digitized form of the activity constitutional protection while the underlying conduct, baseball, remained unquestionably unprotected.[92] The court determined that the plaintiffs did not meet their “burden of showing that video games are expressive so as to trigger First Amendment protection.”[93]

3.   Declining to Answer the Question

In James v. Meow Media, Inc.,[94] another tort case involving parents of victims of a school shooting, the United States Court of Appeals for the Sixth Circuit recognized video games as protected speech, but in a narrower context.[95] In August 2002, the Sixth Circuit decided that “the First Amendment protects video games in [a limited] sense uniquely relevant to” the particular lawsuit.[96] However, the court declined to fully decide the issue as to whether video games receive categorical constitutional protection or even as to whether the First Amendment protects the games in the record.[97]

In James, the plaintiffs claimed that the defendants’ video games communicated a “disregard for human life and an endorsement of violence that persuaded [the shooter] to commit three murders.”[98] The court stated that there are “features of video games which are not terribly communicative, such as the manner in which the player controls the game.”[99] However, the court had “little difficulty” extending the First Amendment to the narrow, communication-only aspect of the video games.[100]

The circuit court, however, declined to decide the “thorny issue[]” of whether video games, either categorically or individually, garner First Amendment protection.[101] While the court examined the precedent and applied constitutional protection in this narrow context, the court emphasized that its decision “should not be interpreted as a broad holding on the protected status of video games.”[102]

III.   Policy Considerations

A.   Ramifications

1.   Tort Ramifications[103]

If video games are speech under the First Amendment, a state’s remedy for tort actions must not violate the defendant’s free speech rights.[104] This limitation does not mean that plaintiffs will not have a tort remedy; rather, “certain speech, while fully protected when directed to adults, may be restricted when directed towards minors.”[105] However, the court in Sanders cautioned that imposing liability on video game manufacturers is practically unworkable because liability would “obligate these [d]efendants, indeed all speakers, to anticipate and prevent the idiosyncratic, violent reactions of unidentified, vulnerable individuals to their creative works.”[106]

2.   Governmental Regulation Ramifications

If the courts ultimately decided that video games are speech, it would impede a legislature’s ability to broadly regulate access to video games or to video game content by ordinance because that ordinance would be subject to strict scrutiny if it attempted to regulate protected speech.[107] For the ordinance in question to survive strict scrutiny, the government must show a compelling interest in regulating that type of activity or speech and show that the regulations are “narrowly tailored to advance that interest.”[108] Consequently, the government could continue to regulate video games by surviving strict scrutiny or, more likely, by regulating “‘graphic violence’ in the games offered to children.”[109]

If video games do not qualify as speech, the government has a lower hurdle to cross in order to pass judicial review of any statute regulating video games.[110] The court will instead afford the video game little or no constitutional protection.[111]

B.   Policy Considerations

According to one court, the danger of failing to recognize the content of video games as protected free speech and of allowing regulation, through either government-imposed content-based restrictions or the availability of a civil tort remedy, clearly demonstrates the potential for a “devastatingly broad chilling effect on expression of all forms.”[112] Affording some expressive video games constitutional protection still allows for the possibility of a narrowly tailored statute to regulate obscene video games because obscene speech garners a lower level of protection than non-obscene speech.[113]

Some commentators argue that industry self-regulation may have already displaced the need for government intervention. Although the government may survive court scrutiny by narrowly tailoring a specific statute that prevents minors from having access to obscene games, all video games must comply with the standards set by the Electronic Software Rating Board (“ESRB”) prior to release.[114] According to the industry’s standard, no video game “can be more graphic or vulgar than an R-rated movie or [an] album with explicit lyrics.”[115] Some commentators have even suggested tying legislation that would restrict access to violent video games to the ESRB ratings.[116]

Furthermore, retailers retain the discretion to refrain from placing video games on the shelf if they do not approve of the game’s content. For example, retailers including Wal-Mart and Best Buy opted in 2002 not to stock the controversial BMX XXX,[117] even though the game passed the ESRB guidelines with an “M” rating, which is the highest rating on the ESRB system; retailers may sell games that are rated “M” only to persons over 17 years old.[118] The publisher of BMX XXX, Acclaim Entertainment, Inc., which was also responsible for the home versions of two of the highly controversial Mortal Kombat games in the mid-nineties, responded to the retailers’ refusal to carry the explicit bike riding game and to the retailers’ refusal to accept the ESRB industry regulation by stating that “there is a general, unfair characterization of the interactive entertainment industry[,] and as a result, [Acclaim’s] product is being held to an entirely different standard than other entertainment media with comparable content, including movies, television[ programs,] and radio.”[119] Acclaim Co-Chairman and CEO Greg Fischbach even compared the notorious product to “movies like American Pie[] and TV shows like The Sopranos and Sex and the City.”[120] Acclaim Entertainment defends BMX XXX’s content on the grounds that the game is not targeting video game players under 17 years old, and it claims that the ESRB “M” rating ensures that retailers will not sell the adult-oriented product to minors.[121]

Conclusion

A.   Summary of Existing Law

The United States Supreme Court has provided that courts are free to evaluate “[e]ach medium of expression . . . by standards suited to it” in determining whether to extend free speech protection to that medium.[122] In applying this guidance, courts have not limited First Amendment protection to political speech but have extended the protection to various new types of media like movies and Internet Web sites.[123] While courts in the earlier cases that examined the issue of whether video games receive constitutional free speech protection consistently held that video games were not protected speech because they lacked an intent to inform or because they amounted to electronic pinball, the Seventh Circuit recognized that at least some video games garner First Amendment protection.[124] The discussion in Kendrick has produced mixed responses by the district and circuit courts.[125]

While some courts have advanced Kendrick’s assertion that the First Amendment protects some video games, one court has completely rejected the approach, and another has declined to decide either way.[126] In addition, courts are split on whether to take a categorical approach and hold that all video games either are or are not speech.[127] Other courts, like Kendrick, advocate a more flexible case-by-case factual determination of the video games at issue to determine whether they are protected speech.[128]

The applicability of the First Amendment to video games determines the availability of tort remedies to families of victims claiming that video games influenced a person to murder the victim.[129] In addition, the determination of whether a video game is free speech sets the standard of scrutiny for governmental regulations on video games, which ranges from the heightened strict scrutiny standard for protected content to lower, more achievable standards for unprotected content.[130]

B.   A Recommended Approach

This section develops a recommended approach for courts to follow in evaluating whether a video game contains protected speech.

1.   How to Evaluate Video Games

The first step in the analysis is to determine how, whether categorically or on an individual basis, to evaluate video games. Because only the final product is of significance for evaluation purposes, the design process, no matter how detailed or how similar to the design process of other protected media, is irrelevant.[131] This makes sense because the design process is likewise irrelevant to other media forms.[132] Additionally, the level of interaction does not define whether a medium contains protected speech.[133] Accordingly, a high level of interaction should not remove a video game from the realm of potentially protected speech.[134]

Technological advances should not on their own make video games protected speech. Pong was one of the first video games; it involved two white rectangles representing paddles moving up and down to volley a white block, thus replicating a game of table tennis. Technological advances that allow a programmer to develop a game that simulates table tennis in a three dimensional environment should not logically provide that game with more protection than that provided to Pong; the objective remains the same. For example, in a baseball game, the stadium may contain design elements like music and billboards, but the design elements are ancillary to the game’s purpose, just as they are in a real game.[135]

Technological advances, however, have had some significance. In Ashcroft v. ACLU,[136] the Supreme Court found the Internet’s origin as an information forum significant in holding that Internet content merits free speech protection.[137] Although video games undoubtedly lack an origin as a source of information, the analysis should focus on the medium as it exists today. Focusing on the history would fail to recognize the broader range of content currently available in video games, which technological advances largely made possible.

Having established factors not relevant to the analysis, what are courts left to evaluate? This question may be easier to answer if one follows the Supreme Court’s guidance in Conrad.[138]

2.   Applying Conrad

This section begins with a premise upon which all courts can agree: some video games lack sufficient expressive content to be constitutionally protected speech.[139] The Supreme Court has held that courts should evaluate each medium of expression by the standards to which it is best suited.[140] Some have interpreted this standard as requiring courts to make a categorical decision as to a type of medium, and thus, because some video games are unquestionably not protected speech, all video games are not protected speech.[141] Conversely, the court in Kendrick interpreted Conrad to allow a factual determination as to each video game.[142]

Proponents of the categorical approach would argue that courts do not engage in this type of ad hoc analysis for other forms of media. However, the realities of modern video games may warrant the case-by-case approach. Because video games are digital media, they provide a broad range of expressive content that may not exist in other media. While some video games resemble traditional physical games, others do not. A board game like Monopoly strictly limits the expressive content to the design of the pieces, and while the game’s inventor may have intended the game itself as a political statement on the “evils of land monopolism” and to advocate the single tax, the game’s inherent limitations preclude the author from effectively expressing that message.[143] Consequently, the message likely does not reach most players. Likewise, a video game based on Monopoly, no matter how artfully rendered, cannot go further in expressing an idea and accordingly deserves no more protection than its physical counterpart. However, all video games are not limited to electronic versions of games like Monopoly or table tennis. Some modern video games with extensive cinematic and plot elements more closely resemble movies.[144] One commentator noted:

If video games simply involved putting in a quarter and watching a story unfold on the screen, the game would be protected, and it should make no difference that the images are produced through the operation of code instead of the projection of light through celluloid. The developer is still providing communication to a human recipient, and that is protected, whatever the medium.[145]

Given the wide range of possibilities, only a case-by-case approach is harmonious with the reality of modern video games and to broadly define free speech.[146]

Returning to the fictitious soldier presented in the introduction, an artist could express a message of the harshness of war through a book like Band of Brothers[147] or through a movie like Saving Private Ryan,[148] and the First Amendment would protect each of these.[149] The artist would, however, have difficulty expressing that message in a game of chess, which is also based on war, where the physical limitations and the object of the game would overshadow the expressive elements. The same applies to a video game of chess, and neither would qualify for protection. However, another video game, not merely replicating chess, could contain the elements of a movie like Saving Private Ryan, to the extent that the game does not overshadow the expressive elements.[150]

One additional consideration exists. Entertainment speech precedent typically requires a “particularized message” for the court to extend First Amendment protection to a medium, but even if the specific “particularized message” is lacking in video games (and the Seventh Circuit in Kendrick would strongly support the idea that at least some contemporary video games satisfy the “particularized message” element), the U.S. Supreme Court has never positively endorsed that requirement.[151] Moreover, the Supreme Court precedent possibly suggests just the opposite: that no particular message is required for a court to extend First Amendment protection to a new form of entertainment media.[152]

Courts should follow Judge Posner’s case-by-case analysis from Kendrick when determining whether the First Amendment protects video games. Given the wide range of content in video games, this approach allows the court to evaluate the medium in the manner best suited to it: by examining the content of each work.[153]

Anthony Ventry III^*