It's All Fun and Games Until Someone Gets Hurt: Brown v. Entertainment Merchants Assoc. and the Problem of Interactivity

June 9, 2012

Video gaming is a medium in its infancy. Having seen remarkably rapid advancement over the past forty years, the industry has grown in both popularity and notoriety with children and adults alike. Despite the popularity of video games, some parents and lawmakers have expressed concern over the presence of violent content in video games. With psychologists and social scientists delivering conflicting data about the effects of violent games on children, some states have deemed it necessary to restrict the access of minors to games containing violent conduct.
In Brown v. Entertainment Merchants Association, the Supreme Court struck down the most recent of these statutes and, in doing so, established First Amendment protection for violent video games. The Court further refused to make violence a new restricted category of speech and will now submit any law restricting violence in video games to strict scrutiny. While the Court’s ruling may very well be applicable to the medium in its current incarnation, video game technology is constantly evolving and thus may challenge the staying power of the Brown decision. This Recent Development criticizes the Court’s failure to fully comprehend the interactive nature of video games due to the majority’s cursory examination of a developing medium, demonstrates how interactivity in future games may necessitate a reevaluation of the Court’s decision, and addresses the tension between interactivity and speech in video games. It also explores the impact of Brown on trademark law and examines the effect that a reevaluation of interactivity may have on intellectual property jurisprudence post-Brown.