The New King of the Entertainment Industry? The Unlikely Story of Video Games and the First Amendment

by Ryan M. Walters for the Ohio State Technology Law Journal

From their humble origins in the 1950s, video games have aggressively grown both commercially and artistically as a medium. Even the industry’s critics cannot ignore that its global gross revenue in 2021 exceeded the combined totals of the film and recorded music industries. In spite of the massive external economic benefits this industry generates, many vocal opponents still remain to the U.S. Supreme Court decision extending video games unqualified First Amendment protection, Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011). With the country reeling from countless school shootings, it is no surprise that some members of the public looked to video games as a scapegoat for this new normal. However, as was the situation at the time of the Brown decision, there remains virtually no persuasive evidence demonstrating any material relationship between violent video games and youth violence. In particular, regardless of their level of video game consumption, no other country comes even close to the level of school shootings that occur in the United States. The Article proposes that, now that a decade has passed, Justice Antonin Scalia’s majority opinion in Brown has proven its status as sound legal precedent. Courts and scholars should turn their focus to more pressing First Amendment technological problems already at our doorstep—such as whether artificial intelligence carries with it any free-speech protections and how to regulate successor technologies to video games capable of interfacing directly with the human brain.

About Ryan M. Walters

Ryan M. Walters is a partner with Jennings Haug Keleher McLeod in Albuquerque.  His practice focuses on commercial and business litigation, including civil appeals.  He can be reached at rmw@jhkmlaw.extimahosting.com.

The original article appeared in the Ohio State Technology Law Journal (Fall 2022, Vol. 19, Issue 1) and can be viewed here: 

https://jkwlawyers.com/wp-content/uploads/2023/02/230224-OSTLJ.pdf.

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