May 23, 2018

The Advocate's Toolbox

First Amendment Rights | The Gaming Life

As marketing for National Gaming Day, November 13, 2010, began at the Haverhill (MA) Public Library, potential participants were enticed by the list of games that would be available.

Rock Band and Mario Kart were featured, but a surprising number of children, some as young as ten, asked, “What about Call of Duty: Black Ops?, the highly anticipated game debuting a week before the event. When asked if they were allowed to play that war themed first-person shooter game (rated M for mature and appropriate for players ages 17 and up), most indicated that their parents didn’t care and that they were playing it with an older relative.

Since parents are often ineffective at reading and understanding the ratings assigned by the Entertainment Software Rating Board (ESRB), is it time for the government to regulate sales of video games to minors by holding retailers accountable for games that get into their hands? Arnold Schwarzenegger, Governor of California, and a number of petitioners think that’s the case. They brought a case against the Entertainment Merchants Association through the California court system, and it was appealed until it reached the Supreme Court on November 2, 2010. The Court heard arguments to determine the constitutionality of AB 1179, a 2005 California law that prohibits the sale of violent video games to those under the age of 18.

Two major questions were debated. Does the First Amendment bar a state from restricting the sale of violent video games to minors? If the First Amendment applies to violent video games that are sold to minors, and the standard of review is strict scrutiny, is the state required to demonstrate a direct causal link between violent video games and physical and psychological harm to minors before the state can prohibit the sale of the games to minors? A “yes” response would mean that free speech is not protected when it comes to giving youth under the age of 18 access to violent (only violent, not obscene or blashphemous) video games, and set a precedent for the government to determine what is “offensive” and when to take away citizens’ First Amendment Rights.


In order to understand the precedent this law would set, let’s look at the history behind it. The references made during this case to “Ginsberg” refers to the poet Allen Ginsberg and the 1957 New York state case in which Lawrence Ferlinghetti faced an obscenity trial for publishing Ginsberg’s poem, “Howl” which contained language that was shocking for its time. Although it was decided that the poem did have redeeming social importance, it still faces challenges today. The Supreme Court Justices continually frame this as a freedom of speech issue, so keep that in mind.

The proponents of the violent video game sale ban would like to see The “Miller test” applied to video games. This “three-pronged test” which had its start in the 1973 Supreme Court case Miller v. California, can be used to decide whether or not an expressive work is “obscene” and should be banned. The three prongs, which all must be fulfilled for material to be deemed obscene, examine whether “the average person, applying contemporary community standards” finds the material sexually explicit, whether the work expresses sexual conduct (defined by state law) in a patently offensive way, and whether the entire work lacks intellectual “value.” For those who seek to ban the sale of violent video games, the Miller test is clearly a way to ban sexual content deemed offensive, but not other forms of “offensive” expression, such as blasphemy and violence.

During the case’s oral arguments, Justice Antonin Scalia explained: “It was always understood that the freedom of speech did not include obscenity. It has never been understood that the freedom of speech did not include portrayals of violence. You are asking us to create a whole new prohibition which the American people never ratified when they ratified the First Amendment. What’s next after violence? Drinking? Smoking? Movies that show smoking can’t be shown to children? Are we to sit day by day to decide what else will be made an exception from the First Amendment? Why is this particular exception okay, but the other ones that I just suggested not okay?” ( supreme_court_violent_video_games_case.html). Why just video games?

In oral arguments, Supreme Court Justice Ruth Bader Ginsburg asked: “…if you are supposing a category of violent materials dangerous to children, then how do you cut it off at video games? What about films? What about comic books? Grimm’s fairy tales? Why are video games special? Or does your principle extend to all deviant, violent material in whatever form.”

The American Library Association (ALA) sponsored Banned Books Week, a campaign that draws attention to banned and challenged books and celebrates the freedom to read, is a prime example of how libraries have embraced all literature. While it is a leap to say that banning some depictions of violence in video games will threaten libraries’ ability to celebrate freedom of speech, a key issue is that the depiction of violence in any form of media is a form of expression. Paul Smith, the attorney who represents the video game industry, warned during the proceedings that if the court decides to ban violence in video games that were deemed deviant and offensive: “…not just video games, but [also] movies, books, and any other expressive work that describes or portrays violence in a way that some court somewhere, some day, would decide is deviant and offensive…” could be in jeopardy.

One point that the judges agreed on is that there should be no value judgment on the video game medium itself, but only on its content. Even if the Miller test could be stretched to include violently obscene material, why should it only be banned in certain media forms? While some arguments were made that there are studies which imply that violent video games have a different effect on children than other media, Justice Sonia Sotomayor countered that argument by saying: “One of the studies…says that the effect of violence is the same for a Bugs Bunny episode as it is for a violent video game. So can the legislature now, because it has that study, say we can outlaw Bugs Bunny?”

What does this mean for libraries?

Librarians should be aware that many M rated games have tools that empower the user to control the gaming experience. All the new consoles come with parental controls, and games like Fallout 3 have options for players to turn down the blood and change the dialogue. Librarians should examine games under the same lens as the other media they collect. Professional standards hold us to collecting a breadth and depth of materials appropriate to community interests that may include books, movies, and music depicting violence, sex, and substance abuse.

Congressional hearings about video game violence and its effects on children in the 1980s prompted a response from the software industry to self-moderate, creating the Entertainment Software Rating Board ( Like the ratings on movies, the ESRB ratings can be a guide to finding the games appropriate for your collection and programs. The ESRB publishes an excellent poster and brochure, “OK to Play,” designed to explain ratings to parents, educators, and the concerned public. The search engine on their website allows searching by title, platform, and rating. The ESRB created a widget so that anyone can install the ESRB search box on a website to facilitate sharing information about ratings.

The Outcome

As debate continues concerning this controversial topic of the constitutionality of exposing minors to video game violence and who bears responsibility for violent video game sales, Game Politics (, Law of the Game. ( and the Supreme Court of the United States ( are all websites to watch. A decision will be forthcoming in June 2011.


Entertainment Software Rating Board:

Game Politics:

Law of the Game:

Supreme Court of the United States: Arnold Schwarzenegger, Governor of California, et al., Petitioners v. Entertainment Merchants Association, et al.

JP (John Patrick) Porcaro is virtual services librarian, New Jersey City University, Guarini Library. Beth Gallaway has a consulting and training business specializing in gaming, technology, and youth services. She delivers continuing education workshops to librarians and provides technology, creative writing, and gaming programs to library patrons of all ages.