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.
