In each of the court cases that have been fought over video game regulation, the proposed law was deemed unconstitutional based on the First Amendment to the US Constitution. This amendment reads, “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.” The goal of the First Amendment is to protect speech in all its varieties, even when people are making arguments that others might not want to hear.
Why is speech protected?
Before addressing why video games fall into the realm of protected speech, it’s important to recognize first why the principle of free speech even exists in the United States. The reasons why the First Amendment, and the Bill of Rights in general, was written are multiple, involving political battles between the Founding Fathers, fears of a tyrannical government, and sincere beliefs that individual rights’ required protection, among other things. The main reason why freedom of speech remains a prominent issue to this day revolves around how we conceive of democracy.
In the United States, democracy is often thought of as the rule of the majority. The problem with this conception is that it brings to mind problems of a tyrannical majority, running roughshod over all other groups. For this reason, Supreme Court Justice Oliver Wendell Holmes argued in 1919 that the purpose of the First Amendment was to protect minority opinions and grant them equal standing with the opinions of the majority. In his decision for the case Abrams vs. United States, Holmes wrote, “the ultimate good desired is better reached by free trade in ideas…that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution.”
This concept has later come to be known as the “marketplace of ideas”. Based on a capitalist view of economic markets, this belief states that competition between various different arguments is a necessary step toward finding the best alternative, which is the idea that gains the widest acceptance. Thus, the rule of the majority avoids tyranny because the “marketplace of ideas” ensures that the majority choice is the best option for all people.
While some law theorists, such as Cass Sunstein, disagree that this is the best way to consider the process of arriving at a democratic opinion, the marketplace of ideas remains a powerful analogy and is commonly cited as a justification for why speech needs to be defended. Without constitutional protection, minority opinions run the risk of being subsumed under the much more common majority opinions. Freedom of speech ensures that even unpleasant or offensive ideas get their chance to fight for an audience.
Are all types of speech protected?
Not all types of speech are seen as equally deserving of protection; there are some exceptions to the First Amendment. For instance, obscenity is not protected by the Bill of Rights. Any speech that meets three criterion for obscenity, known as the Miller Test, can be regulated or prohibited by law. Other types of speech are limited to certain locations or times.
The fact that not all types of speech are protected leads us back to one of the main questions surrounding this site and all the court cases that have been fought thus far: Why do video games merit protection?