Tuesday, November 2, 2010

The Supreme Court Considers Free Speech and Violent Video Games: A First Step Into the Brave New World of Virtual Reality?

by Michael C. Dorf

November 1, 2010

Tomorrow, November 2nd, the Supreme Court will hear oral argument in Schwarzenegger v. Entertainment Merchants Ass'n (EMA). The case involves a challenge to a California law that restricts the sale of violent video games to minors. The U.S. Court of Appeals for the Ninth Circuit invalidated the law as a violation of the First Amendment.

The Court granted review on two questions: First, whether the sale of violent video games to minors even qualifies as presumptively protected speech; and second, assuming that it does, how much evidence of harm to minors must the state amass in order to proscribe such sales nonetheless? These are important questions about the scope of free speech doctrine, and I shall explore them below.

The EMA case also implicates a third question, which is both more basic and broader in scope: How does the Constitution apply to virtual reality? As technological change accelerates, virtual actions in video games (and other computer-generated simulacra of reality) will increasingly come to resemble real actions in the real world. At some point, a choice will have to be made as to whether to treat the regulation of virtual reality as tantamount to the regulation of reality itself.