The First Amendment and New Media: Video Games as Protected Speech and the Implications for the Right of Publicity

Over the past four decades, video games have evolved from the niche market of arcade halls to a multibillion dollar home entertainment industry. At the same time, video games also advanced technologically from relatively simple forms of entertainment to a rich medium capable of communicating ideas and information. This Note discusses the possibility that this new medium constitutes protected speech and the implications that protection may have on an individual’s right of publicity. First, the Note considers the precedent surrounding the validity of video games as protected speech. Beginning with the first cases on point that denied any First Amendment applicability, the Note then turns to more recent precedent granting protection and examines the unsettled question about whether video games ought to be considered individually or categorically. Second, the Note reviews an individual’s right of publicity and the various tests used to balance it against free speech. In so doing, the Note concludes that, while video games may deserve categorical protection, the term “video games” is too broad a definition; such a category would cloak some non-expressive games with the protections of the First Amendment at the expense of other individual liberties, like the right of publicity.