Supreme Court rules games are protected under the First Amendment

by Phil Hornshaw

A remarkable thing happened earlier this week: the U.S. Supreme Court, in a 7-2 decision, ruled that video games are protected expression under the First Amendment.

The ruling struck down a California law making it illegal to sell violent video games to minors in retail stores, stating that the government can’t censor some forms of free expression and not others. Video games, like movies, are self-regulated with parental advisory warnings and a rating system, and most retailers voluntarily choose not to sell to children. But the California law took things a step too far, the court said, and the law was thrown out as being unconstitutional.

Most important about the ruling is that the Supreme Court went so far as to liken video games to forms of art – literature and film, primarily – which sets a precedent that video games can be considered forms of art in the eyes of the courts and that they are afforded the same protections. The court hasn’t recognized a form of expression in this way since it did with film roughly 60 years ago.

The ruling isn’t strictly applicable to mobile games at the moment, but it has changed the landscape quite a bit for everyone, with mobile game players and developers included. Video games have long been a political punching bag, going as far back as the Columbine massacre and beyond, and it has taken years for the Supreme Court to finally stand up and say that government regulation of games requires the strictest scrutiny the court can apply. It doesn’t mean laws affecting video games are illegal, but the government will now have to work very hard to keep them within the bounds of the First Amendment.

Mobile games benefit indirectly from the ruling. Even though they haven’t received much attention as far as complaints about their content, laws prohibiting certain kinds of games in the space will now likely have a much harder time coming into existence.

Censorship still possible, just tougher

That doesn’t mean that mobile game developers, or any game developers, have free reign to do what they want. Especially in the mobile space, there are a lot of gatekeepers who might prevent edgier games from being created. While mobile games are seeing a lot in the way of innovation, with games that use motion control, cameras, touchscreens, sound and even the time and date in new and interesting ways, games that are especially violent or include sexual or other potentially questionable content probably will struggle to gain mainstream acceptance – even if they are art.

Consider the walled garden that is Apple’s iTunes App Store. Apple enforces some a very strict code on the kinds of games it wants in the App Store, and it routinely bounces apps that don’t fit the criteria or don’t take the right self-imposed rating. Sexual content is mostly precluded from the App Store outright. There don’t need to be legal censorship laws on video games when the people allowing those games to be available, in this case Apple, do all the censorship from an economic, perfectly legal, standpoint.

Things are much more lax in the Android Market, and even more so in third-party stores around the Internet. Google has done well to resist political pressure when it comes to its apps, for better or worse, but other mobile app providers like Research In Motion have been quick to cave and bounce apps from their stores. One example is pressure from lawmakers over apps that identify drunk driving checkpoints in given cities. Even though this is public information that is readily available in many newspapers (here in Los Angeles, LA Weekly publishes checkpoint locations every weekend), politicians have been pressuring Apple, Microsoft, Google and RIM to remove those apps from their stores because they may or many not encourage drunk driving. Google and Apple haven’t acquiesced to those requests, but RIM has.

That’s a bit of an apples-to-oranges example, and whether Google and Apple continuing to offer those apps is the right decision is an entirely different debate. But the point is, regardless of actual laws against mobile games, the providers of those games are still vulnerable to pressure, and censorship is still possible without a hard-and-fast law on the books.

The Supreme Court ruling this week was a victory for gamers and it makes for a climate of added legitimacy and protection for games as a means of expression, but it doesn’t mean there will be an overnight shift in any form. Mobile games are likely to continue just as they have, and it’s unlikely that the envelope of content will be pushed here, in this climate, regardless of how many court precedents a developer can cite to Apple, Google or whoever.