Laws of Play » First Amendment

7th Circuit Upholds WI Prison Ban of D&D

Anthony Prestia — Fri, 29 Jan 2010 19:14:40 +0000

In a decision issued earlier this week, the 7th Circuit upheld a Wisconsin prison rule banning inmates from playing Dungeons & Dragons and other fantasy games. Prison officials argued that the confiscation of D&D materials was justified as an effort to avoid stimulating gang activity, violence, and competitive hostility. The evidence offered to support the harmful effects of D&D included, inter alia, an affidavit by a specialist claiming that the structure of D&D mimics the organization of gangs and could lead to their eventual formation, cases from other states alleging that playing fantasy games can lead to addictive escapism that divorces inmates from reality, a case where a non-inmate D&D player committed suicide, and a case where two non-inmate D&D players committed a crime while acting out a D&D storyline.

In my opinion, the various rationales seem silly. Games, particularly video games, have generated quite a bit of positive press for their ability to provide escapism for inmates. Some Oregon correctional facilities have even seen significant drops in gang-related behavior simply because inmates that are divorced from the realities of prison life are less likely to join gangs. As for the other two rationales, with enough research one could, sadly, link almost any hobby or storyline to the commission of a crime or suicide. While I can somewhat understand not wanting prisoners to play anything from the Grand Theft Auto series, a game of D&D or one of its various video game incarnations hardly seems like a threat to anyone’s safety.

Unfortunately for Wisconsin inmates, prison officials need only prove that their regulations are rationally related to a legitimate goal of prison administration. Here, the goal is clearly legitimate–reducing inmate gang activity–and, as we all know, “rational basis” more often than not reads “any reason at all.”

With this in mind, readers with friends and relatives in a Wisconsin correctional facility may want to rethink sending the latest Dungeon Master’s Guide or Elder Scrolls game. Why not try a more traditional cake-with-a-metal-file-baked-inside?

You can read the full opinion here and listen to the oral argument here.

Injunction Issued Against CTA Ban on M-Rated Game Ads

Anthony Prestia — Fri, 08 Jan 2010 19:24:27 +0000

According to an Entertainment Software Association (“ESA”) press release, the U.S. District Court for the Northern District of Illinois granted a preliminary injunction against the Chicago Transit Authority (“CTA”) practice of banning M-rated video game advertisements. The case considered the constitutionality of a CTA ordinance that prohibited any advertisement that “markets or identifies a video or computer game rated ‘Mature 17+’ (M) or ‘Adults Only 18+’ (AO).” In the opinion, Judge Rebecca R. Pallmeyer stated, “…the advertisements the CTA wishes to ban promote expression that has constitutional value and implicates core First Amendment concerns.”

ESA President and CEO Mike Gallagher stated that the “ruling is a win for Chicago’s citizens, the video game industry and, above all, the First Amendment.”

Bus advertising is a persistent hot spot for first amendment litigation. After viewing many of the banned game ads (one is pictured above), I think the court came to the proper conclusion. The ads themselves are in no way obscene or inappropriate, so I find it difficult to believe that the CTA had any compelling interested in limiting this commercial speech in a public forum.

Read the full press release here.

More on the First Amendment in Virtual Worlds

Anthony Prestia — Tue, 18 Nov 2008 19:25:05 +0000

If you found the previous post concerning First Amendment rights in virtual worlds interesting, a new article in Volume 30 of the Cardozo Law Review may be worth your time. The article, The Freedom of 3D Thought: The First Amendment in Virtual Reality, was written by Marc Jonathan Blitz of Oklahoma City University and presents the following question in its abstract:

This article seeks to understand its place in First Amendment law. My question, in short, is whether the actions we take in our personal Holodeck would count as “speech” or other First Amendment-protected activity. The First Amendment right to freedom of speech generally protects expression, not non-expressive conduct, such as driving a car, flying an airplane, or having sex. So where in this familiar First Amendment dichotomy does one place the convincing replica of non-expressive conduct that becomes possible inside a fully immersive VR world? Are we engaging in First Amendment “speech” when we drive a phantom car, pilot an illusory plane, or have virtual sex, and if so, why do activities such as these – which generally count as “non-expressive” conduct, unprotected by the First Amendment, in the physical world – suddenly become “expressive” in a 3D virtual world? In short, courts confronting such questions will have to decide whether VR’s convincing illusions are First Amendment “speech,” like the movies or video games of which they are arguably three-dimensional analogues, or “conduct” like the actions they mimic.

Download the entire article here.

[Hat tip to Media Law Prof Blog]

What do Strip Clubs, GTA, Trademarks & the First Amendment have in Common?

Anthony Prestia — Tue, 18 Nov 2008 18:21:58 +0000

Answer: E.S.S. Entertainment 2000, Inc. v. Rock Star Videos, Inc.

In this recently decided case, The United States Court of Appeals for the Ninth Circuit considered “whether a producer of a video game in the ‘Grand Theft Auto’ series has a defense under the First Amendment against a claim of trademark infringement.”

In this case, E.S.S. Entertainment 2000 alleged that the virtual “Pig Pen” strip club in Grand Theft Auto: San Andreas infringed its trademark and trade dress associated with it’s Los Angeles-based “Play Pen” Gentlemen’s Club. However, the court sided with Take Two Interactive/Rockstar and found that the game’s content is protected by the First Amendment. The full opinion is certainly worth a read, as it is full of humorous quips:

Both San Andreas and the Play Pen offer a form of low-brow entertainment; besides this general similarity, they have nothing in common. The San Andreas Game is not complementary to the Play Pen; video games and strip clubs do not go together like a horse and carriage or, perish the thought, love and marriage.

Or perhaps the following:

Undeterred, ESS also argues that, because players are free to ignore the storyline and spend as much time as they want at the Pig Pen, the Pig Pen can be considered a significant part of the Game, leading to confusion. But fans can spend all nine innings of a baseball game at the hot dog stand; that hardly makes Dodger Stadium a butcher’s shop. In other words, the chance to attend a virtual strip club is unambiguously not the main selling point of the Game.

Overall, I’m satisfied with the court’s logic and hope to see more First Amendment protection for trademarks used in artistic expression.

One Man’s Plea to Reform AU Game Rating System

Anthony Prestia — Thu, 16 Oct 2008 04:53:54 +0000

Ben Croshaw, of PC Gamer and Zero Punctuation fame, recently posted an opinion piece discussing Australian video game censorship over at news.com.au. Ben examines the Australian game rating system, which ranges from “E” — for everyone — to “MA15+” — for gamers 15 and older. Because Australia does not feature an 18+ rating, all games that are inappropriate for an “MA15+” rating are effectively banned.

Ben argues that while there are plenty of mature games that he believes lack any “worthwhile” mature speech, there is no reason that adults should be denied access to these titles. Furthermore, Ben points out that as the gaming medium matures as an art form, many developers find themselves experimenting with more mature themes. As Germany and some other European nations effectively ban games on occasion by refusing to rate them, Ben’s arguments prove interesting on an international level.

Read the full article here.