Video Games and the First Amendment

Over at GameTopius, paralegal-in-training Nikhil Baliga (who also has degrees in Political Science and Psychology) serves up a look at First Amendment issues as they relate to games.

While Baliga does a nice job of tracing some of the major case law, the article’s main points could be stated with more clarity. This paragraph, for example, seems to imply that video games are not necessarily constitutionally-protected speech (they are):

What well intentioned, but usually ill informed, video game advocates often assume is that video games are constitutionally protected free speech. While there can be no doubt that video games are speech, the Supreme Court has stated that not all speech is constitutionally protected.

Later, Baliga explains that this is a reference to video games which might be considered legally obscene under the so-called Miller Test. The fact is, however, that the likelihood of that happening in the U.S. market, given the ESRB rating system, console licensing requirements and screening by major retailers, is roughly nil.

While there could be a non-commercial game or import (say, RapeLay) that might – might – meet the Miller obscenity standard, implying that commercial video games are not protected speech is roughly akin to saying that Hollywood movies aren’t necessarily protected speech because there are also kiddie porn films.

Still in all, worth a read.

GP: Readers should note that Baliga is not a lawyer and neither is GP. So, take both opinions with the appropriate grain of salt.

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  1. 0
    Boffo97 says:

    “GP: Readers should note that Baliga is not a lawyer and neither is GP. So, take both opinions with the appropriate grain of salt.”

    That’s okay. Neither is WackyJack.

    …because someone had to say it.

  2. 0
    ZippyDSMlee says:

    I understood what you meant though me being on the incoherent side of things means I can sometimes understand incoherent things… LOL

    IE games like anything else are not 100% protected free speech, nothing is fully protected there are always shades of gray.


    I am a criminal because I purchase media,I am a criminal because I use media, I am a criminal because I chose to own media..We shall remain criminals until Corporate stay’s outside our bedrooms..

  3. 0
    NikhilBaliga says:

     Hi everyone, my name is Nikhil Baliga and I wrote the article that GP posted.

    ‘d like to say, before anything else, that I’m a huge fan of Gamepolitics and I read it every day. In fact, it was GP (and Law of the Game) that inspired me to start my own column. 


    Naturally, I was very flattered when I learned that GP was linking to my article. Unfortunately, I have to take issue with the post about it since it seems to misrepresent my article. The setnances highlighted are taken somewhat out of context. I wrote that because of forums I see where posters assume that games ARE protected by the first amendment when, in truth, most have no idea whether they are or not (they may, like me, think they SHOULD be, but that is beside the point).

    For example, before I began research for this article, I was completely unaware whether or not video games were protected, and so was nearly everyone I talked to, both attorneys and laypersons. In retrospect, I would revise the section for clarity but I feel that the decision to present these two sentences as the main thesis completely misconstrues my article. 

    First, there is a footnote I added which states a very famous quote from Justice Holmes on precisely WHY not all speech is constitutionally protected. I put this footnote in specifically because I wanted to relax knee jerk reactions against any restriction to free speech which, let’s face it, most most young fans of video games, like myself, often have. 
    Second, it leaves out the sentence after specifically explaining that, for decades, the courts did NOT find that video games were constitutionally protected. (See footnote number 2)
    Most importantly, it does not explain that a good third of the article is devoted to showing that recent case law has held that video games enjoy the same first amendment protection as other forms of speech (literature, film, television, art etc). 
    You may have got the idea from the pthat I am …implying that commercial video games are not protected speech…" I never implied such a thing in my article. In fact, a significant part of it goes into detail about how case law says this is NOT true. (on page 2):"All in all, it would seem that the court has sided with the video game industry: Modern video games, with their stories, characters, and themes, are protected by the First Amendment like movies and books would be. (emphasis added)"
    It should also be noted that it is my theory that "The other major reason [for the lack of obscenity prosecutions against distributors of video games] is [that]the vast majority of video games sold in the United States have only small amounts of sexual content thanks to the Electronic Software Rating Board (ESRB).[19] The refusal of major retailers, such as Walmart and Gamestop, to stock games rated “Adults Only” by the ESRB creates a financial handicap; almost ensuring that no game will be produced by a major developer that will test the boundaries of the Miller Test for obscenity." Much like GP says, though I would like to clarify that i made that point in the article. 
    Finally, I agree that there are problems with clarity in the article and there is room for improvement. Truthfully, this is my first major article I have written for publication anywhere, whether online or in print. Up until now, I have written only academic papers and some fiction for fun in my spare time (I have written two small pieces for Gametopius as well but I was working on all three at roughly the same time). I would hope you all would understand and allow me a little slack as I am still learning the ropes and am trying to build on my experiences.
    Thank you,
    Nikhil Baliga


  4. 0
    Chaplain99 says:

    -breaks in the front door to this chat room-


    Joking, please don’t.  ><;

    "HEY! LISTEN!"

  5. 0
    Zero Beat says:


    *Slams desk.  Points finger.*

    That only applies to defamatory statements that are not true.  For example, calling some a pedophile in front of a crowd when they’re not and have never been accused of such.  However, defamatory statements are protected if they are true.


    "That’s not ironic. That’s justice."

  6. 0
    olstar18 says:

    No it is not false but a misrepresented statement like that could be 10 times worse. A liar tells lies but a good liar mixes both truth and lie.

  7. 0
    Pinworm says:

     "While there can be no doubt that video games are speech, the Supreme Court has stated that not all speech is constitutionally protected."

    Go fuck yourself

  8. 0
    Wormdundee says:

    Seems rather odd to write an article about this though. I think the response from anybody on GP to the statement that ‘an obscene (legal definition) game could be regulated’ would be a resounding ‘No shit sherlock’.

    Where did Baliga get the idea that gamers think that under no circumstances could a video game ever be banned/regulated/whatever? The gist of the article seems to be that a video game is not exempt from being subjected to the Miller test.


    EDIT: I forgot to mention, I find the entire idea of an obscenity law ridiculous anyway. Is it not easy enough to stick with the idea that your right to free speech ends when it effects other people’s rights? Seems pretty straightforward to me. And since it is not a human right to not be offended, anything and everything should be allowed to be portrayed in a video game.

  9. 0
    E. Zachary Knight says:

    Read the entire article and his theme is that it is possible that some games can be found obscene in the same way other mediums can. If someone were to make a game that would be considered obscene according to the Miller test, it could be regulated.

    This is something that I have been saying for a while.

    The main issue with games and legislation is whether violence can be considered obscene. So far all courts have sided with the games industry stating that violence cannot be a measure of obscenity.

    E. Zachary Knight
    Oklahoma City Chapter of the ECA

    E. Zachary Knight
    Divine Knight Gaming
    Oklahoma Game Development
    Rusty Outlook
    Random Tower
    My Patreon

  10. 0
    DarkSaber says:

    Awkward phrasing probably isn’t a good thing for a paralegal-in-training to be doing.


    I LIKE the fence. I get 2 groups to laugh at then.

  11. 0
    Beacon80 says:

    Technically, he’s just saying the blanket statement "video games are protected speech" is false, since individual ones can fail.  He never said this meant all video games were obscenes, he just phrased it awkwardly.

  12. 0
    Neeneko says:

    Damn, beat me to the point….

    It was a rather perplexing statement.  Of course anything that falls under first ammendment exemptions is not protected.  That is why they are excemptions.  The media is irrelevent.

    If someone made a game that was blatent defamation it would be just as exempt as a movie/book/article/etc that did so.

  13. 0
    Brokenscope says:

    Correct me if I’m wrong, but one book, movie, game, or image being declared obscene by the miller test would not make all books, movies, games, or images obscene.

    So he justifies his statement that games aren’t protected speech on the basis that one game could be declared obscene.

    He is an idiot.

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