This Note proposes that video game software, the driving force of all video game entertainment, is an artistic creation of a video game designer. Because the United States Supreme Court repeatedly has recognized that artistic expression and entertainment are forms of expression that the first amendment protects, video game software deserves first amendment protection. Video game software is the "heart and soul"" of the video game, and first amendment protection, therefore, also should blanket the game itself. Accordingly, free "speech" liberties give video game manufacturers, distributors, and operators a fundamental right to purvey the protected expression; and the public a fundamental right of access to video games. In establishing the foundation for this argument, part H of this Note surveys the various methods of regulating video games through licensing and zoning. Part HI discusses limitations on municipal police power regulation and the challenges that parties have brought against municipal video game ordinances. Freedom of speech constraints on municipal regulation and the recent freedom of speech challenges to New York City video game ordinances receive particular emphasis. Part IV argues that video games are artistic entertainment deserving first amendment protection. This argument presents empirical evidence which demonstrates that video game software is an artistic expression.Part IV also discusses the fundamental values that the first amendment serves and free speech cases in the entertainment, offensive speech, and obscenity areas which justify first amendment protection of artistic expression. Finally, part IV analyzes first amendment precedent in the area of artistic entertainment and the antiquated requirement that entertainment must communicate ideas or information to receive first amendment protection. It concludes that protection of video games is a logical and warranted step in first amendment doctrine. Part V summarizes this Note's conclusions and briefly discusses the implications of first amendment analysis on municipal licensing and zoning regulation of commercial video game entertainment.
John E. Sullivan,
First Amendment Protection of Artistic Entertainment: Toward Reasonable Municipal Regulation of Video Games,
36 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol36/iss5/2