Free Speech Prevails in St. Louis Video Game Case

Last week the Eighth Circuit Court of Appeals decided in favor of the video game industry in their battle against St. Louis County. Last year a St. Louis district court upheld a law that “makes it unlawful for any person knowingly to sell, rent, or make available graphically violent video games to minors, or to ‘permit the free play of’ graphically violent video games by minor, without a parent or guardian’s consent.” The Appeals court reversed that decision and remanded the case to the district court with instructions to enter an injunction consistent with this new decision.

An important aspect of the Eighth Circuit decision is that it affirmed video games as protected speech. The court wrote, “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 court added, “We note, moreover, that there is no justification for disqualifying video games as speech simply because they are constructed to be interactive; indeed, literature is most successful when it ‘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.’”

The Court also quashed the argument that video game violence is obscene for minors. “We reject the County’s 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.” … Simply put, depictions of violence cannot fall within the legal definition of obscenity for either minors or adults.”

In the decision’s concluding paragraphs, the Court addressed the County’s language that the goal of the ordinance was to assist parents in policing the content their children encounter. The Court wrote, “We do not mean to denigrate the government’s role in supporting parents or the right of parents to control their children’s exposure to graphically violent materials. We merely hold that the government cannot silence protected speech by wrapping itself in the cloak of parental authority. … To 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.”

Read the decision here