Electronic Games & the First Amendment

Just recently published in the Northwestern Interdisciplinary Law Review, a paper authored by SONIC researcher Thomas Rousse provides a structural theoretical analysis on the history and direction of electronic game censorship. Expanding upon the question of whether electronic games are protected under the First Amendment, raised by Brown v. EMA, a Supreme Court case likely to be decided tomorrow, this paper argues that electronic games should be protected by the First Amendment, and their lack of protection over the past forty years .

The paper has been uploaded and can be read at SSRN: Electronic Games & the First Amendment

Prompted by the upcoming Supreme Court case Brown v. EMA (formerly Schwarzenegger v. EMA), this article explores the case history of electronic game censorship, the history of new media regulation, and how significant free speech theories can be applied to electronic games. In Brown v. EMA and similar cases, lawmakers have attempted to regulate electronic games based on their violent content, while earlier cases refused to consider electronic games as speech at all. This paper advocates a structuralist analysis of media, the expressive germ perspective, to determine which media should be considered speech. By focusing on the capabilities rather than the content of nascent media, courts can avoid misclassifying rightfully protected expression due to cultural prejudice or unfamiliarity with new media. Ultimately, this paper broadens the discussion raised by Brown v. EMA to interrogate our judiciary’s failure to protect media in their formative stages and fulfill the anti-majoritarian goals of the First Amendment.


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