472 A.2d 809 | Conn. Super. Ct. | 1983
The first amendment provides that "Congress shall make no law . . . abridging the freedom of speech." In a series of decisions beginning withGitlow v. New York,
The plaintiff has urged that video games are a form of free speech and that the restrictions imposed upon him by the defendant commission abridge that right.
"Entertainment, as well as political and ideological speech," is protected by the first amendment. Schad
v. Mount Ephraim,
Consequently, entertainment may come within the ambit of the first amendment, but to gain protected status, that entertainment must be designed to communicate or express some idea or some information.Metromedia, Inc. v. San Diego,
If the court turns to whether video games constitute protected expression it should be borne in mind that "[e]ach medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems."Southeastern Promotions, Ltd. v. Conrad,
The question of whether video games are entitled to first amendment protection presents a case of first impression in Connecticut. A survey of decisions throughout the United States demonstrates that there is some confusion about video games as a form of protected speech. As of September, 1983, only two federal courts have addressed precisely the question now *173
before this court, and appear to represent the majority position. Both courts categorically rejected the contention that video games are a protected form of "speech."America's Best Family Showplace Corporation v. Cityof New York,
In America's Best Family Showplace Corporation, the plaintiff sought permission to install more than the four video game limit as provided by the city code. After being denied permission, the plaintiff brought an action claiming that video games are protected "speech" rendering restrictive regulatory procedures relating thereto unconstitutional. The court stated (p. 174): "In no sense can it be said that video games are meant to inform. Rather, a video game, like a pinball game, a game of chess, or a game of baseball, is pure entertainment with no informational element. That some of these games `talk' to the participant, play music, or have written instructions does not provide the missing element of `information.' I find, therefore, that although video game programs may be copyrighted, they `contain so little in the way of particularized form of expression' that video games cannot be fairly characterized as a form of speech protected by the First Amendment." Similarly, the District Court in MaldenAmusement Co. v. City of Malden, supra, relying onAmerica's Best Family Showplace Corporation v. Cityof New York, supra, found that case to be a persuasive and thorough examination of first amendment law and held that video games are not protected speech within the first amendment.
America's Best Family Showplace Corporation was followed by Tommy Tina, Inc. v. Department of ConsumerAffairs of the City of New York,
It is notable that some courts have found that video games are deserving of first amendment protection because they contain communicative and expressive elements analogous to motion picture and television entertainment. See Oltmann v. Palos Hills, No. 82CH3568 (Ill. Cir. Ct., August 20, 1982) (trial judge determined that since video games are similar to movies, they deserve first amendment protection); Gameways, Inc.
v. McGuire, N.Y.L.J., May 27, 1982, p. 6. In ruling on a motion for a preliminary injunction, the Gameways
trial judge stated: "Considering the fact that other forms of expression no more `informative' than video games — viewing nude dancing through a coin operated mechanism — have been recognized as constitutionally protected . . . this court concludes video games are a form of speech protected by the First Amendment." Moreover, District Judge Nickerson, describing the video game "Scramble," said in dicta: "In essence, the work is a movie in which the viewer participates in the action." Stern Electronics, Inc. v. Kaufman,
Movies were first accorded the status of protected speech in Joseph Burstyn, Inc. v. Wilson, supra. The *175
court in its discussion of movies as a medium for the communication of ideas stated (p. 501): "They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of a political or social doctrine to the subtle shaping of thought which characterizes all artistic expression. The importance of motion pictures as an organ of public opinion is not lessened by the fact that they are designed to entertain as well as to inform. As was said in Winters v. New York,
The question of video games as protected speech requires a factual determination of whether video games import sufficient communicative, expressive or informative elements to constitute expression protected under the first amendment. Moreover, a resolution of this issue will also determine the standard under which the town's regulations are to be scrutinized.
If video games do not implicate first amendment problems then the validity of the defendant's regulatory scheme must be measured against less rigorous standards of due process and equal protection under the fourteenth amendment. Rinaldi v. Yeager,
On the other hand, if video games are a form of protected speech, then the defendant's regulations must pass muster under a heightened level of scrutiny. The zoning authority must demonstrate that the restrictions are "narrowly drawn [to] further a sufficiently substantial governmental interest." Schad v. Mt. Ephraim,
Each medium of expression, of course, must be assessed for first amendment purposes by standards suited to it, for each may present its own problems. It seems clear that before entertainment is accorded first amendment protection there must be some element of information or some idea communicated. That element is clearly lacking here. Therefore, this court finds that video games are not a form of speech protected by the first amendment.