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Eli Pales

Abstract

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or as complicated as a sophisticated $200 million recreation of the American West. If treated literally, the Supreme Court’s rule in Brown would require lower courts to treat all video games—regardless of their individual characteristics, sophistication, and visuals—as equally protected under the law. Yet lower courts have not been following this Supreme Court decision by its word. Instead, judges have scrutinized how complicated a video game is, whether it has a narrative, if its characters are unique, and other characteristics that should be irrelevant. This Article confronts the ways that lower courts discriminate against video games compared to established mediums and argues that this violates the Supreme Court mandate in Brown. It also provides a context and legal basis for constitutionally protecting video games that the Supreme Court failed to provide in its relatively simplistic decision. Ultimately, I argue that lower courts should take the Brown decision seriously and treat video games like any other protected medium, even if the results at first seem counterintuitive.

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