This document provides an overview of video games and the First Amendment. It discusses how video games are protected speech under the First Amendment based on the Supreme Court's 2011 decision in Brown v. Entertainment Merchants Association. The First Amendment does not protect certain categories of unprotected speech like obscenity, fraud, or true threats. The document also discusses the current landscape of video game regulation internationally and provides examples of video games that push boundaries or provide social commentary. It emphasizes the importance of pushing boundaries with creative works and exercising protected free expression.

1. Video Games and the First Amendment:
The importance of pushing boundaries
and
resilience in the face of adversity
Odin Law and Media

2. Introduction
• Who am I? Brandon J. Huffman.
• Founder – Odin Law and Media.
Legal services to game and digital media companies.
• General Counsel – IGDA.
Disclaimers
• Sky high level overview.
• Opinions are mine.
• Not legal advice.
• I am not your lawyer.

3. First Amendment Basics: What is it?
Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the
people peaceably to assemble, and to petition the Government
for a redress of grievances.
Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise thereof;
or
abridging the freedom of speech,
or of the press;
or the right of the people peaceably to assemble,
and to petition the Government for a redress of grievances.

4. 1st A: What does it protect?
Citizen Participation
Expression

5. This game will be great!
1st A: What doesn’t it protect?
FraudDefamation
Fraud
Fighting Words
Defamation
Fraud
Clear and Present Danger
Fighting Words
Defamation
Fraud
This game will have 32
playable characters if you
pay $300 for the
Kickstarter...
Brandon steals money from
elderly people.
Why don’t you pick on
somebody your own size, pig?
(And it really doesn’t)(To a police officer)
Listen, this is why you should
support [enemy of the
state]....
True Threat
Clear and Present Danger
Fighting Words
Defamation
Fraud
I will kill you. /
I will kill [President] if
[Condition].
Obscenity
True Threat
Clear and Present Danger
Fighting Words
Defamation
Fraud
[Child Pornography]
[Regular Pornography]
[Vulgarity]
[Offensive Speech]
I don’t like you.
[Insults]
(Even if it won’t - opinion)
[Copyright][Trademark]
[Privacy][Trade Secret]
Infringement of Another’s Rights
Obscenity
True Threat
Clear and Present Danger
Fighting Words
Defamation
Fraud
Non-speech Conduct
Infringement of Another’s Rights
Obscenity
True Threat
Clear and Present Danger
Fighting Words
Defamation
Fraud

6. 1st A: What doesn’t it protect?
Protected free expression.
Obscenity
True Threat .
Clear and Present Danger ….
Fighting Words .
Defamation
Fraud
Infringement

7. 1st A: What doesn’t it protect?
“Congress shall make no law
…abridging the freedom of speech”
Does NOT apply to
unprotected speech or
non-speech:
• Non-speech Conduct
• Infringement of Another’s Rights
• Obscenity
• True Threat
• Clear and Present Danger
• Fighting Words
• Defamation
• Fraud
Does NOT apply to Private Actors:

8. What does “protect” mean?
• “Regulation”
• Government-imposed regulation
• Court-ordered restraint
• Protected speech can still be regulated!
• Higher level of court scrutiny for regulation of protected speech
• Content based: Strict scrutiny.
• Compelling government interest – Is the interest important enough to justify
a speech restraint?
• Narrowly tailored – Is the regulation too broad, too narrow, or unnecessarily
burdensome?
• Content-neutral: Intermediate scrutiny.
• Important or substantial governmental interest
• Unrelated to the suppression of free expression
• Narrowly tailored / no greater than necessary
• Leaves open ample opportunities of communication.

9. Brown et al v. Entertainment Merchants Association, et al.
First Amendment and Video Games
BROWN et al. ENTM’T MCH. ASSOC. et al
California enacted law that imposed
restrictions and labeling requirements on
the sale or rental of "violent video games"
to minors.

10. Brown v. EMA
• Industry groups sued to invalidate the law.
• U.S. Supreme Court decided in 2011.
• Significance: First case to say that video games
unquestionably qualify for First Amendment protection.
• But, of course, even protected speech can be regulated.

11. Brown v. EMA
1. Violent video games are not “obscenity”.
2. California did not have a compelling interest in the regulation.
• They had argued it would prevent psychological or neurological harm to
minors allegedly caused by video games and assist parents in control.
• Their evidence of clinical studies was shoddy. ESRB reduced necessity of
regulation to assist parents in making sound choices.
3. Even if the state had a compelling interest, the law was not
narrowly tailored enough to meet that objective.
• Over-inclusive: Not all children forbidden needed to be forbidden. Abridged
the rights of young people whose parents don’t care.
• Under-inclusive: Allowed parents to opt out. Allowed non-video game media.

12. Brazil (Ep. L. City –
Lifted), China,
Japan (V, heavily
localized), Malaysia,
Saudi Arabia
(partial), South
Korea (III, Lifted)
Thailand, UAE
1st A: Current landscape
• Games are more realistic.
• Games are more immersive.
New Zealand,
Germany, Ireland
(lifted), Kuwait,
Malaysia, United
Kingdom (lifted),
Saudi Arabia, South
Korea
Saudi Arabia
China
(for
depictions
of China)
China
(for recognizing
Taiwan and Tibet)

13. 1st A: Current landscape

14. Games as Resistance
• 1904. The Landlord’s Game –
• Mechanics basically copied by Parker
Brothers and later used in Monopoly.
• Commentary on disproportionate power
of landlords.

15. Examples
Orwell
2016
“Nobody is Innocent”
A simulation in which a player assumes the role of a state operative and
monitors surveillance sources (and social media) to find national security
threats.
Papers, Please. 2013.
A dystopian document thriller.
The player immigration inspector tasked with
controlling the flow of people entering a fictional
country. Among the throngs of immigrants and
visitors looking for work are hidden smugglers,
spies, and terrorists.

16. Examples
When you live in war zone and death is
hunting everyone, things will look different
and choices become harder. Face your fate
in an unjust war to survive with your
family from the shadows of war.
I need to discover what's going on before it's too
late. It's becoming difficult to protect those I
love from the turmoil facing my neighborhood.
This block, my friends, and my family, we all
stick together and do the best we can to keep
each other safe and look out for one another. We
are in this together. We Are Chicago.

17. Examples
In the 2D sidescroller Thunderbird Strike, fly
from the Tar Sands to the Great Lakes as a
thunderbird protecting Turtle Island with
searing lightning against the snake that
threatens to swallow the lands and waters
whole.
Thunderbird Strike

18. Importance
Brown v ESA
• “In the 1800’s, dime novels depicting crime and “penny dreadfuls”
(named for their price and content) were blamed in some quarters
for juvenile delinquency.
• When motion pictures came along, they became the villains
instead.
• Radio dramas were next, and then came comic books.
• Many in the late 1940’s and early 1950’s blamed comic books for
fostering a “preoccupation with violence and horror” among the
young, leading to a rising juvenile crime rate.
• And, of course, after comic books came television and music
lyrics.”

19. Importance
Protected free expression.
The limits of free
speech are defined
by the fringes.

20. Go, create, be mindful and experiment.

21. Questions?
Brandon J. Huffman
Odin Law and Media
@brandonjhuffman
brandon@odinlaw.com