The New Resident Evil? State Regulation of Violent Video Games and the First Amendment

I. INTRODUCTION The game's premise is simple: the player controls an escaped convict named James Earl Cash as he fights for his life through the gritty streets of a fictional American city. In doing so, players of the hit video game, Manhunt, first released in 2003, are immersed in a detailed, interactive world, offering a wide range of possibilities to the creative gamer. In the game, Cash is enlisted as the protagonist in a series of snuff films by "the Director," who is eerily omnipresent due to his use of strategically positioned video cameras and an earpiece. The Director's mandate: kill or be killed. To carry out the Director's bidding, Cash has at his disposal a variety of deadly options. Cash can kill other characters "by suffocating them with a plastic bag, slicing them up with a chainsaw, shooting them point blank with a nail gun, stabbing them in the eyeballs with a glass shard, or beheading them with a cleaver," among other methods.1 The more grisly the killing, the more points players earn. All the while, the Director eggs the player on - emphasizing the need to please his waiting audiences and the Director's own sexual gratification.2 While games like Manhunt have grown enormously popular among both children and adults,3 these games have increasingly drawn the ire of state regulators over the past two decades. Numerous states and political subdivisions have passed legislation seeking to restrict minors' access to violent video games.4 Many other political bodies have either attempted to enact such legislation or are currently attempting to do so.5 Without exception, each legislative effort has met staunch opposition from a broad coalition of gamers, industry leaders, and First Amendment advocates. Federal courts have responded by invalidating, on First Amendment grounds, any state effort to restrict minors' access to video games based on violent content alone.6 Federal appellate courts grappled with the constitutional implications of violent video game regulation for ten years before the Supreme Court took up the issue. In 2011, the Court decided Brown v. Entertainment Merchants Ass'n,7 upholding a Ninth Circuit Court of Appeals decision that invalidated a California law prohibiting the sale of violent games to minors. Although Brown did clarify some ambiguities in the law created by the various lower court decisions, this Comment identifies two fundamental questions that remain unanswered: First, will a video game (or similar form of interactive media) ever receive anything less than strict First Amendment scrutiny? Second, will a state ever meet its burden under the strict scrutiny standard? This Comment argues that although Brown does not squarely address either question, Brown and prior lower court decisions demonstrate that both questions must be answered in the negative. By focusing on the theoretical underpinnings of violent video game regulation, this piece brings a fresh look to the two questions above, which underlie an extensive, cross-disciplinary debate that has raged for over ten years. This Comment critiques many of the arguments advanced by jurists and scholars - most of which find voice in the various opinions in Brown - to demonstrate that prevailing constitutional norms leave virtually no room for regulation of violent video games. Accordingly, Part II proceeds by offering a brief background of video game regulation and its interplay with the First Amendment. Part III discusses the first question identified above. At first blush, Brown appears to answer the question as to whether regulation of violent video games will ever be afforded less then strict scrutiny. However, Part III underlines arguable differences between video games and other media, some of which are discussed in Justice Alito's concurring opinion in Brown. Ultimately, this Part concludes, however, that none of these differences are likely to persuade the Court to afford video games less rigorous First Amendment protection, regardless of how realistic or interactive they are or become. …