Forecasting Free Speech Limits For On-Line Networks – Chris Scott Graham
Development of the law and its manner of application to new facts is a process far slower than advances in technology, or the changes in the manner of social interactivity. Courts are limited to addressing issues that arise from an actual “case or controversy,” are constrained from offering advisory opinions, and must function at the glacial pace of the judicial system compared to the rapid development of new and alternative methods of creating, distributing or consuming content. But these challenges notwithstanding, when the Supreme Court issues a First Amendment ruling the analysis as expressed is often far broader in application than the facts that gave rise to the opinion as stated. Such is the case in Brown v. Entertainment Merchants Association (www.supremecourt.gov/opinions/10pdf/08-1448.pdf), a 7-2 ruling that invalidated California’s 2005 law banning the sale or rental of violent video games to minors. Here the Court’s extension of First Amendment protections to violent video games provides language that suggests the larger application of these principles to protect the creation and development of “themes and messages” by on-line networks and other forms of media products.
The focus of the majority in Brown v. Entertainment Merchants Association, sufficient to confer First Amendment protection to interactive (versus static) means of communication, was the fact that “video games communicate ideas – and even social messages – through many familiar literary devices…and through features distinctive to the medium (such as the player’s interaction with the virtual world).” Of special import to companies developing or employing “new” technologies, the Court likened the vehicle of communication in question, here video games, to “the protected books, plays and movies that preceded them.” While Justice Scalia, writing for the majority, expressly distinguished the protected content of violent video games from depictions of sexual content that have traditionally been subject to permissible regulation, he also made clear that non-obscene speech “cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them.” And, in terms of the broader application to on-line networks and other media products, Justice Scalia noted that: “Whether government regulation applies to creating, distributing, or consuming speech makes no difference.”
In on-line networks the interactive nature of the communications, as compared to those that employ a static viewer relationship, have been previously suggested as a reason why a different approach may be necessary when dealing with content. Here again, the Supreme Court’s opinion suggests otherwise, essentially describing the difference in interactivity between video games and books as one of degree that does not survive constitutional scrutiny.
Brown v. Entertainment Merchants Association appears as part of the trend that signals wider protection for on-line expression, and follows opinions of the Supreme Court in the recent past where the First Amendment was applied to invalidate bans on animal cruelty videos, content based bans on protects at military funerals, and politically oriented speech by businesses. The extent to which this trend will continue, and the contours of its application, will be seen in October when the Supreme Court reviews appellate court rulings that invalidated attempts by the Federal Communications Commission to police the isolated use of expletives and situational nudity during prime time broadcasting. CSG