A First Amendment for Second Life: What Virtual Worlds Mean for the Law of Video Games

In the first decade of the twenty-first century, video games have finally taken their place alongside movies, comic books, and drawings as a form of protected First Amendment speech. Since the Seventh Circuit\u27s 2001 decision in American Amusement Machine Association v. Kendrick, court after court has struck down ordinances and statutes aimed at restricting violent video games--on the grounds that such violate game designers\u27 and players\u27 First Amendment speech rights. This series of rulings marks a stark change from courts\u27 previous stance on video games, which consigned them to the same realm of unprotected non-speech conduct as games like tennis, chess, or checkers. Video games were able to escape from this unprotected realm--and become First Amendment expression--largely because advances in computer graphics and design made them more and more like interactive movies and television shows, and less and less like digitized board games and pinball machines. But instead of simply forging ahead in this jurisprudential evolution, as video games evolve from personal forms of recreation to virtual worlds, this Article suggests that virtual worlds should make us rethink the First Amendment theory that got us to this point. This is because, while video games may have become First Amendment speech by becoming intricate movie-like stories, many virtual worlds are decidedly not scripted stories. They are rather stages for a multitude of expressive activity, some of which is an electronic analogue of the chess-playing, tennis-playing, car racing, or aimless lounging and wandering, that the courts excluded from the realm of First Amendment speech in an earlier era. This Article argues that this exclusion was a mistake. Virtual worlds are realms of First Amendment expression not because of the stories and role play they make possible, but rather because they provide a setting for giving form to imagination in sounds and imagery, a setting that can be walled off from the business of civil government and thus reserved for more unconstrained exercises of individual freedom. Stories and messages are an optional part of this setting and are not a necessary ingredient of First Amendment speech. This is not to say that government has no role to play in regulating virtual worlds: where individuals bring harm-threatening activity into virtual worlds involving acts that abuse others\u27 money or reputation, for example, government might have to regulate such worlds. But such regulation must take place alongside of, and not simply displace, the First Amendment\u27s application to virtual worlds