Feminism, the First Amendment, and #Gamergate

by Annelise Dominguez

This past August, the Internet erupted when Anita Sarkeesian, a media critic, was threatened with mutilation, rape, and other physical harm in response to her video web series criticizing the sexist implications of the way in which women are portrayed in video games. See Julie Bort, After Exposing Sexism in the Video Game Industry, This Woman Received Rape Threats on Twitter, Businessinsider.com, Aug. 27, 2014. Similarly, in 2013 Carolyn Petit, a video game reviewer for GameSpot, came under attack after giving Grand Theft Auto V a “superb” score of 9/10. Despite the high score, Petit wrote, “GTA V has little room for women except to portray them as strippers, prostitutes, long-suffering wives, humorless girlfriends and goofy, new-age feminists we’re meant to laugh at.” Carolyn Petit, Grand Theft Auto V Review, Gamespot.com, Sept. 17, 2013. Gamers circulated a petition asking for her to be fired for her criticism. Sadly, it is not uncommon for critics to be attacked in real life in response to criticizing women’s portrayals in video games and suggesting those portrayals may have a negative effect on male game players.

Within this context, however, the effect video games may have on female consumers remains lesser explored. Many are unaware that as the video game industry has flourished, so has its female following, with women making up 48% of the total gamer population as of 2014. This industry boasts $21.53 billion that consumers have spent in 2013 on games, hardware, and accessories. As the industry has grown, dispute has also increased as to the treatment of women involved in the video game industry as well as female portrayals within video games themselves. However, most discussions focus on the ubiquity of violence in video games.

In recent years, the most heavily criticized components of video games are their violence and how that fictional violence influences minors. Numerous critics and studies argue that violent video games increase aggressive thoughts in young children. See Rachael Rettner, Do Violent Video Games Boost Aggression?, Foxnews.com, Mar. 25, 2014. In a highly publicized dispute, former Governor Schwarzenegger enacted a law imposing labeling requirements and restrictions on the sale or rental of what the act referred to as “violent videogames.” Immediately, this act was challenged and held unconstitutional by the United States Supreme Court as violative of the First Amendment. Unlike the regulation of violent video games, little legal discourse has been geared toward the portrayal of females in video games, and often the violence in video games is directed toward female game characters. What legal protections could be utilized in order to improve a situation that has escalated beyond words into actionable threats?

This question becomes even more challenging when considered in light of the Brown v. Entertainment Ass’n decision, which emphasized “that video games qualify for First Amendment protection,” seemingly obviating one of the strongest legal challenges. Brown, 131 S. Ct. at 2733. It is reasonable to infer that the First Amendment protection given to violent video games could reasonably be extended to allegations of sexist content. In fact, Justice Scalia explicitly criticized Justice Alito’s concurrence by writing, “Justice Alito recounts all these disgusting video games in order to disgust us—but disgust is not a valid basis for restricting expression.” Id. at 2738. Arguably, Scalia’s statement also appears dispositive of criticism targeting the portrayal of women in video games. Perhaps, too, it is informative that cases that are brought against video game content focus predominantly on violence. E.g. Entm’t Software Ass’n v. Blagojevich, 404 F. Supp 2d 1051 (N.D. Ill. 2005) (holding that the Illinois Violent Video Games Law could not be justified under the First Amendment where the statute established criminal penalties for selling or renting violent video games to minors, allowing those games to be purchased through self-checkout, and failing to label such games with an “18,” despite the large legislative record documenting the negative impact violent video games have on minors); Interactive Digital Software Ass’n v. St. Louis County, 329 F.3d 954 (8th Cir. 2003) (holding that a county ordinance that makes it unlawful for any person to knowingly sell, rent, or make available violent video games to minors without a parent or guardian’s consent violates the First Amendment).

As an issue that simultaneously permeates other entertainment mediums, which receive similar criticism, the portrayal of women in the media in general provides legal practitioners and lawmakers substantial room to enact policy and further its progress. Looking ahead, H.R. 287 is one such piece of legislation to watch closely because it attempts to regulate access to adult-rated video games. However, the question remains whether legislative action is the most advantageous approach or the answer to females seeking solutions in a historically male-dominated industry. With many legal challenges brought against similar types of regulation and largely unclear judicial standards, perhaps it is time for the video game industry itself to take action. By contrast, it is more likely that greater development will only be felt through the actions of consumer spending. After all, the average video game player is thirty-one years old and well within the age to have the monetary resources to make his or her criticism known. It is possible that lost profits will be more impactful in the video game industry where First Amendment precedent has been unable to curtail virtual violence against women.

Annelise Dominguez is a 2L at Arizona State University Sandra Day O’Connor College of Law. She is an associate editor for the Sports & Entertainment Law Journal.