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Hastings Law Journal

Abstract

In the wake of the perverse pattern of horrifying schoolyard shootings in Littleton, Colorado, and in Paducah, Kentucky, the video game industry has increasingly come under fire for its excessively violent video games. In particular, the potential for tort liability for video game manufacturers has attracted significant attention. This raises questions of whether the video game manufacturers can be held liable for the deaths or injuries of those students and teachers under traditional tort principles and whether the First Amendment will preclude such an action. This dialogue takes on new urgency following the recently published FTC report Marketing Violent Entertainment to Children: A Review of Self-Regulation and Industry Practices in the Motion Picture, Music Recording & Electronic Game Industries, where the FTC found that of the 118 games with a Mature rating for violence, 70% targeted children under 17.

On April 12, 1999, the parents of the three girls killed in Paducah, Kentucky, filed suit against Sega of America Inc., id Software Inc., and other video game manufacturers for making or distributing violent video games. Although this lawsuit is believed to be the first filed against a video game manufacturer alleging that playing a game caused the player to injure a third party, this is not the first case against other media defendants. The courts in these cases typically barred recovery either on traditional tort principles, not finding a legal duty or proximate cause, or by mechanically applying the Brandenberg incitement test and holding that the speech conveyed by the music, literature, or movies was not intended to incite imminent lawless activity. These lower courts, however, have erroneously applied Brandenburg's highly protective rule to protect negligent media defendants in contexts not contemplated by the Brandenburg court.

A court hearing a tort case against a video manufacturer should resist mechanically applying Brandenburg and rather weigh the First Amendment interests of the video game manufacturer against the competing interests of the injured victim, the child-player who was induced to kill or maim, and the interests of the state in compensating those injured as well as its interests in protecting its children and citizens. After carefully balancing these interests, a court should conclude that a fault base standard sufficiently protects the First Amendment interests of the video game manufacturer while at the same time accommodates the interests of the plaintiff and of the state. An injured plaintiff should be compensated for the injuries sustained as a result of the distribution of violent video games: The First Amendment should not be a license for unreasonable behavior on the part of the violent video game industry.

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