Law of the Game on Joystiq: No Freedom of Trash Talk

Each week Mark Methenitis contributes Law of the Game on Joystiq, a column on legal issues as they relate to video games:
In a recent Sessler's Soapbox, Adam took the opportunity to comment on some of the trash talking on Xbox Live. During the course of that diatribe, he mentioned that he thought the First Amendment argument was a "crock of s***" with respect to trash talking. Well, as the resident lawyer here on Joystiq, I'd like to take this opportunity to explain the First Amendment argument is just flat out wrong. In fact, it's one of my greatest pet peeves that the First Amendment gets thrown about as an excuse for most everything that is said in the realms of gamer culture, from trash talking in online matches, to posts on forums, to comments on gaming blogs.

In case you're one of the thirty-four people worldwide who has never experienced the phenomenon in question, this is essentially what's being talked about: Typically, someone will do something offensive online, be that posting something in a forum or saying something on Xbox Live. Then, someone in power will either reprimand that user, often through censoring, or banning for the behavior. This is typically either followed by that user or some other user decrying this exercise of authority as a violation of their 'rights.' The responses do vary, but as a moderator of one of the biggest forums on the internet, I've seen everything from 'OMG U R VIOL8ING MY FURST AMNDMT RYTES!!!11!' to some very lengthy and polished answers. The only commonality between these varying levels of responses is that they are all wrong.

There's one other point of clarification that goes along with this particular discussion, and that's the 'First Amendment' reference. For those of you abroad who aren't as familiar with the American system, people are referring to the First Amendment to the Constitution of the United States. The text of the first amendment reads: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Shortened to the relevant portion for this discussion: Congress shall make no law ... abridging the freedom of speech. Beyond the fact that this right is more or less limited to applicability in the US, the text of the amendment itself is a huge hint as to why this argument is doomed to fail.

In short: Any claim to freedom of speech being abridged online in the forums we're discussing isn't by act of government. Xbox Live, message boards, and blog comments are all activities on what amounts to the digital equivalent of private property. Think of it this way: If you were to go down to your local mall and start shouting things that offended other mall patrons, would the mall be able to force you to leave the premises? Of course they would. Your right to free speech is limited while you are on private property, be that real world property or someone's digital network. US courts have generally held that digital property is analogous to private property and thus have found against free speech in a number of cases, mostly on the issue of spam.

"In short: Any claim to freedom of speech being abridged online in the forums we're discussing isn't by act of government."

But there are two other fundamental reasons why speech can be limited on private digital networks. First, based on the Prodigy case, there is precedent that the owner of the network can be held liable for the content put on that network. Secondly, and more importantly, all of these relationships are governed by contract, and those usage contracts almost always have clear rules as to what is or is not acceptable behavior on that network. There are clear content rules on Xbox Live and most of the major message boards. Abiding by these rules is part of the terms of service that you agreed to in order to participate in that forum.

There are, of course, other laws beyond the US. Far be it from me to ignore three other potential sources of a right to freedom of speech, which are: the Universal Declaration of Human Rights, the European Convention on Human Rights, and the United Nations International Covenant on Civil and Political Rights. The text of each is as follows:

Universal Declaration of Human Rights
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

European Convention on Human Rights:
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

International Covenant on Civil and Political Rights
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

"Calling people names after they stick you with a grenade in Halo 3 is not political speech. "

Ultimately, though, I would expect that these would be interpreted much the same way as the First Amendment is, requiring that the censorship be some governmental action. More importantly, these declarations, especially the United Nations ones, have a significant problem with enforcement. There would be a far greater chance of enforcing the European Convention through the EU than there would be utilizing the UN measures. I'm not aware of any precedent for utilizing UN conventions to enforce free speech on private networks, much less on something that is as trivial as trash talk.

And in the grand scheme of things, trash talk is trivial speech. Freedom of speech has its roots in political speech, which in the US receives the highest protections from the courts. Calling people names after they stick you with a grenade in Halo 3 is not political speech.

Ultimately, content restrictions and behavior rules ensure that the online community can be enjoyed by the largest possible audience. While I'm not personally bothered much by the things people say online, I know a lot of people are. Even though I'm not bothered, there is a substantial amount of time when I didn't even bother to wear a headset, because I know most of the chatter is meaningless. Ultimately, that is what online play has become in the vast majority of matches. We, as a gamers, could have much more meaningful in-game interaction and build a much greater sense of community in online play if we wanted to. Maybe the better solution is to subdivide Xbox Live based on preferences like these, but that could create even more complications in online play. I would expect that even some of the most ardent supporters of freedom of speech online would likely be worn down if subjected to the dregs of in-game chatter for a few hours.

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Mark Methenitis is the Editor in Chief of the Law of the Game blog, which discusses legal issues in video games. Mr. Methenitis is also a licensed attorney in the state of Texas with The Vernon Law Group, PLLC and a member of the Texas Bar Assoc., American Bar Assoc., and the International Game Developers Assoc. Opinions expressed in this column are his own. Reach him at: lawofthegame [AAT] gmail [DAWT] com.

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