Electronic Games and the First Amendment: Free Speech Protection for New Media in the 21st Century

Prompted by the upcoming Supreme Court case Brown v. EMA (formerly Schwarzenegger v. EMA), this article explores the case history of electronic game censorship, the history of new media regulation, and how significant free speech theories can be applied to electronic games. In Brown v. EMA and similar cases, lawmakers have attempted to regulate electronic games based on their violent content, while earlier cases refused to consider electronic games as speech at all. This paper advocates a structuralist analysis of media, the expressive germ perspective, to determine which media should be considered speech. By focusing on the capabilities rather than the content of nascent media, courts can avoid misclassifying rightfully protected expression due to cultural prejudice or unfamiliarity with new media. Ultimately, this paper broadens the discussion raised by Brown v. EMA to interrogate our judiciary's failure to protect media in their formative stages and fulfill the anti-majoritarian goals of the First Amendment.