As early as 1976, video games started to incorporate aspects of violence, such as striking enemies with a vehicle or using explosives to destroy a structure. Still, initially, courts were reluctant to assign the same constitutional protections to video games that they had granted to other protected media like motion pictures and written and musical works. But as technology progressed, courts, too, matured, becoming more open to the notion that video games should be a form of protected expression. Yet, some courts lost sight of the First Amendment’s vision and reconsidered their earlier decisions in which they upheld the constitutionality of video game expression. This prompted the U.S. Supreme Court, in the first case that dealt with the First Amendment’s protection of video games, to remedy nearly four decades of confusion and unify the law in Brown v. Entertainment Merchants Ass’n. After the Court’s decision in Brown, it is safe to assume that, at society’s current level of technological progress, courts are likely to hold that children’s use of video games is expressive conduct that the First Amendment protects. But if technology becomes “too advanced” and mechanics such as virtual reality, three-dimensional space, and infrared movement simulators become the technological norm, the Court may have to reexamine its reasoning in Brown before too long.
Garrett M. Mott,
Game Over for Regulating Violent Video Games? The Effect of Brown v. Entertainment Merchants Ass’n on First Amendment Jurisprudence,
45 Loy. L.A. L. Rev. 633
Available at: http://digitalcommons.lmu.edu/llr/vol45/iss2/12