First Amendment Precludes Video Game Addiction Claims

From Judge a decision Monday by Judge Brian Wimes (W.D. Mo.) in Courtright v. Epic Games, Inc.:

Carey Courtright … is the mother of K.C., a minor who was twelve years old at the time this suit was filed. Plaintiff alleges that video games are designed, marketed, and sold in a way that creates and sustains addiction in users….

The First Amendment to the United States Constitution limits the scope of tort liability by preventing recovery in cases where plaintiffs seek to hold defendants liable for protected conduct. See New York Times Co. v. Sullivan (1964) (holding the right to free speech is a defense to defamation); N.A.A.C.P. v. Claiborne Hardware Co. (1982) (holding the right to freely associate is a defense to conspiracy-based torts); Hustler Mag., Inc. v. Falwell (1988) (holding the right to free speech is a defense to intentional infliction of emotional distress); Snyder v. Phelps (2011) (holding the right to free speech is a defense to intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy)…. Speech … receives the same level of protection whether the speaker seeks financial profit or not.

"[V]ideo games qualify for First Amendment protection" because "[l]ike the protected books, plays, and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot, and music) and through features distinctive to the medium (such as the player's interaction with the virtual world)." Brown v. Ent. Merchants Ass'n (2011). The interactive or player-controlled elements of video games are as equally entitled to protection as the elements generated directly and exclusively by the games' developers. Where a plaintiff seeks to hold a video game developer liable for the content of their products, strict scrutiny applies.

Here, Plaintiff argues her claims target non-expressive conduct, and she does not seek to hold Defendants liable for any content. In support of her argument, Plaintiff cites In re Soc. Media Adolescent Addiction/Pers. Inj. Prods. Liab. Litig. (N.D. Cal. 2023), in which the district court drew a distinction between alleged defects that do and do not receive First Amendment protections in the context of social media. The district court held that First Amendment protections do not apply when addressing alleged defects "would not require that defendants change how or what speech they disseminate" or when defects qualify as "tools" to create speech but are not themselves speech. Plaintiff argues this case is akin to In re Social Media. The Court disagrees.

Notably, in In re Social Media the defendants operated social media platforms, which provide a forum for speech and sometimes "create expressive products," but do not themselves qualify wholesale as speech. Moody v. NetChoice, LLC (2024) (explaining social-media platforms "in at least some situations"—but not all—"include and exclude, organize and prioritize—and in making millions of those decisions each day, produce their own distinctive compilations of expression."). Here, the Developer Defendants create video games, which are entitled to First Amendment protection as a whole, not in a piecemeal manner like social media platforms. Therefore, this case is distinguishable, and the likelihood that speech would be directly affected is higher in this case—though not unequivocal.

Plaintiff's argument that this case is about conduct not content is unpersuasive. Plaintiff alleges the Developer Defendants' video games are defective because they have addictive features. Plaintiff indiscriminately attributes the following allegedly addictive features to all Defendants and all products:

[29.] [Defendants] intentionally design their Products to be addictive by incorporating and utilizing traditional game theory tactics, operant conditioning (e.g., dark patterns, skinner boxes, feedback loops, rubber-banding), artificial intelligence, and reward systems, along with patented designs containing addictive features, systems, mechanisms, and shared technology, in their video gaming product designs to ensure consumers continue to use and engage in "microtransaction" spending within the [Defendants'] Products….

[135.] The [Defendants] utilize many strategies to enhance and exploit the already predatory monetization tactics incorporated into the Products. Such strategies include: (a) The "near miss": convincing players via exciting animation, for instance, that they were very close to winning; (b) "Chasing": encouraging players to keep playing to get back any money they just lost; (c) "Fear of missing out": suggesting that a special prize is only available for a short amount of time and must be obtained within the small window; (d) "Exclusivity": suggesting that only a small number of a special prize are available so it must be obtained immediately; (e) "Entrapment": convincing players they are about to win, or they have invested enough to win, but if they stop playing they will miss out on the win; and (f) The "sunk cost effect": justifying continued expenditures in the game because of the amount a player has already spent.

The alleged defects that Plaintiff identifies in her amended complaint are all elements of the video games at issue. Plaintiff's claims, in essence, seek to hold the Developer Defendants liable because their video games are made too entertaining by these "defective" elements. This is content-based liability that is not permitted. Sorrell v. IMS Health Inc. (2011) (holding protected speech cannot be quieted or burdened simply because it is too persuasive).

Plaintiff further argues the amended complaint targets conduct, not content, because the remedial measures required would not implicate the First Amendment. Plaintiff asserts that to address the defects in the Developer Defendants' video games she seeks "adequate warnings about the risks of [Defendants'] products, safer features such as time limits and increased parental controls, and for Defendants to eliminate their addictive features." Plaintiff argues this would not require any change to content, so the Developer Defendants' free speech rights are not implicated. This argument is also unpersuasive.

First, the allegedly defective features, as pled by Plaintiff in this case, are properly considered video game content; they are elements and features of video games. Requiring the Developer Defendants to remove these allegedly addictive features would force them to change the content of the games to make them less enticing or enjoyable for users.

Second, Plaintiff's argument for parental controls and other safety tools is an attempt to recharacterize the allegations in her amended complaint. Plaintiff references parental controls just six times in an amended complaint that is 260 pages. And those mentions are not in the context of describing defects in the video games. When Plaintiff's amended complaint discusses product defects, it focuses on design choices that make the video games addictive, like "microtransactions" and "pay-to-win" elements. Plaintiff also fails to explain what parental controls presently exist in Defendants' products and how they are defective. Therefore, the Court rejects Plaintiff's arguments about parental controls

Third, requiring the Developer Defendants to give "adequate warnings about the risks of [their] products" would unconstitutionally force them to warn of potential effects of viewing protected expressive content. A mandate of this kind would violate the Developer Defendants' constitutional free speech rights.

Plaintiff acknowledges there is a long history of courts rejecting failure-to-warn claims where plaintiffs seek to hold defendants liable for failing to warn of dangerous ideas or content contained in protected speech. Plaintiff argues this case is distinguishable from those cases, but the distinction Plaintiff attempts to draw is illusory. Plaintiff argues she seeks warnings about "dangerous product designs," not warnings about "dangerous ideas or content." However, Plaintiff's amended complaint alleges the content of video games causes addiction; any warning about a risk of harm from playing video games would be warning about the content. The fact that Plaintiff alleges the video games are designed to create addiction does not transform the conclusion that any warning would ultimately be content-based. This type of claim is therefore covered by the First Amendment and subject to strict scrutiny analysis.

It is evident on the face of the complaint that Plaintiff's claims against the Developer Defendants fail the strict scrutiny test. Plaintiff has an interest in receiving compensation for alleged harms and in preventing video game addiction in children. Preventing future addiction in children is compelling, yet the changes that are requested would apply to all users of the games and is therefore not narrowly tailored for children.

Additionally, the features Plaintiff identifies as addictive, stated generally as "the innovative video game monetization inventions and ideas intended to lure and addict users," is a very broad category of content that may be addictive for some individuals but not others. To prohibit such a broad category of video game features would strongly stifle development as game developers would fear that any new game feature that users find attractive could result in significant financial liability. The chilling effect on protected expression would be broad, even for minors. Erznoznik v. City of Jacksonville (1975) ("[M]inors are entitled to a significant measure of First Amendment protection, and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them."); Watters v. TSR, Inc. (W.D. Ky. 1989), aff'd (6th Cir. 1990) (prohibiting liability based on the content of the game "Dungeons and Dragons"); Sanders v. Acclaim Ent., Inc. (D. Colo. 2002) (finding tort liability based on the content of video games is not narrowly tailored to serve the interest of protecting minors).

In the end, "speech cannot be restricted simply because it is upsetting or arouses contempt," or where its content causes significant emotional distress. Here, all of Plaintiff's claims run afoul of the First Amendment. The theories of liability brought against the Developer Defendants would have powerful chilling effects and are far from narrowly tailored. Plaintiff's claims, as alleged, are barred on the face of the complaint, and the Developer Defendants' motion is therefore granted….