Moot Court competitors to tackle issue of violent video games

Thursday, March 16, 2000

Depending on your perspective, the issues in Flanders v. Mayhem Entertainment are on either the fringe or the cutting edge of First Amendment law.

Law students from across the country will bring their perspectives to these issues during this weekend’s National First Amendment Moot Court Competition at Vanderbilt University in Nashville. The 41 teams will argue whether the First Amendment protects the manufacturer of a violent video game from liability when an 11-year-old student, inspired by the game, shoots his physical education teacher. Although the facts in Flanders are fictional, the First Amendment issues presented by the case are increasingly real.

The issues in Flanders are whether a manufacturer of a video game is entitled to First Amendment protection for a product that glamorizes and encourages violence and, if so, whether the manufacturer forfeits that protection when it aims its marketing at children. From the perspective of the manufacturer, these issues present cutting-edge constitutional questions, as the liability resulting from the denial of such protection would be staggering. From the perspective of the wounded teacher, the First Amendment defense is simply a grasping-at-straws attempt to avoid responsibility for inciting criminal action.

Eric Flanders, the fictional wounded teacher, is asking the Supreme Court to reinstate a jury verdict he obtained against Mayhem Entertainment, the manufacturer of the Maximum Carnage video game. Flanders sued the manufacturer after one of his students, angered by his treatment in class, stole a gun from a neighbor’s house, brought it to school and shot Flanders nine times. The student, Flanders claims, was obsessed with and incited by the video game.

The fictional manufacturer admits that Maximum Carnage graphically depicts violence. In the game, the player assumes the identity of a gang member and scores points by successfully committing various crimes, including murder. Murders of authority figures are especially valuable in the game, which encourages the player to eliminate anyone who might challenge the gang’s control of its neighborhood.

The manufacturer, however, denies that it incited real-life shootings. Moreover, Mayhem Entertainment claims that the “resist authority” message in its game is a form of political expression entitled to First Amendment protection. The trial court in the moot court problem rejected this First Amendment argument, and the jury tagged the manufacturer with a sizable verdict. The appellate court reversed, holding that Maximum Carnage, while a form of entertainment, also expressed a viewpoint protected by the First Amendment.

As in any good moot court problem, existing law supports both sides. In several cases, for example, courts have rejected the premise that all conduct has expressive elements. These courts accordingly have denied First Amendment protection to nude dancing, ballroom dancing and coin-operated video games. In the video games cases, the courts have held that the pinball and video poker games did not even arguably convey a message.

The video game in the problem, however, is different. Even if Mayhem Entertainment didn’t consider its “resist authority” message when developing and selling its game, that message, although faint, is undeniably present. Courts have long recognized that messages need not be explicit to be protected. Indeed, symbolic speech, such as burning a flag, is protected, as are some forms of dance. Movies and television programs also are protected because, even though they are primarily entertainment, they can communicate ideas and points of view. If a movie or book depicting the same gratuitous violence shown in Maximum Carnage would be protected, no reason exists to deny that protection to a video game.

Even if Maximum Carnage conveys a “resist authority” message, however, that message is not necessarily protected by the First Amendment. Under the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, speech loses First Amendment protection if it advocates illegal action. Speech falls within this exception if it is “directed to inciting or producing imminent lawless action” and is likely to produce such action.

In most cases, courts have rejected the argument that speech that prompts random “copycat” violence advocates illegal conduct. One court, for example, has held that music lyrics were protected by the First Amendment, even though the lyrics encouraged the shooting of police officers. In other cases, courts have held that graphic portrayals and demonstrations in magazines, movies and television programs did not incite violence.

In three recent cases, however, courts have held that speech that directly and affirmatively promotes criminal conduct is not entitled to First Amendment protection. In one case, a publisher was found liable for printing a book that contained detailed instructions for committing murder. In two others, magazine ads were denied First Amendment protection when they solicited hit men. The manufacturer of Maximum Carnage similarly could be denied protection, especially because the game’s marketing campaign was aimed at adolescents, who are less able to separate fact from fiction.

While strong arguments can be made on both sides of these issues, the underlying philosophy of the First Amendment weighs in favor of Mayhem Entertainment. Although the manufacturer’s position is unsympathetic, one of the more dangerous threats to the First Amendment is the notion that courts can — and should — consider the content and medium of speech when determining whether it is worthy of constitutional protection. As distasteful as it might be to allow irresponsible video game manufacturers to hide behind the First Amendment, denying them constitutional protection because we don’t like their message would be even worse.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.