“Medal of Honor” video game ban and the First Amendment

Medal of Honor, a video game published by Electronic Arts (EA), stirred up quite a bit of controversy after its release.  The controversy stemmed from the fact that players can take the role of Taliban fighters.  American and international politicians spoke out against this element of the game, and the US military decided to ban the sale of the game on military bases.  Could this ban qualify as a violation of the First Amendment’s freedom of speech clause?

The Army and Air Force Exchange Service (the organization that runs stores on Army, Air Force and Navy bases) refused to sell copies of the game on military bases “out of respect for our men and women in uniform.”  Servicemen voiced conflicting views on the ban, while lawyers and EA officials expressed concern over the different treatment that video games receive from other mediums under American free speech protections.  In response, EA removed the ability to play Taliban fighters, and replaced it with “Opposing Force”.  However, the military refused to lift the ban.

Other blogs have also raised the issue of whether the ban is a violation of the First Amendment free speech.  Content-based restrictions on speech “distinguish favored speech from disfavored speech on the basis of the ideas or views expressed.” Turner Broadcasting System, Inc. v. F.C.C., 512 U.S. 622 at 643 (1994).  Such “speech restrictions are generally unconstitutional unless they are narrowly tailored to a compelling state interest.”  Id. at 680.  A district court recently stated that “[a military base] may not prohibit an expression simply because society finds the idea offensive or disagreeable.”  Nieto v. Flatau, 715 F.Supp.2d 650 at 656 (E.D.N.C. 2010).

However, the Second Circuit noted that “limitations on speech in a nonpublic forum may be content-based… and need only be reasonable.”  General Media Communications, Inc. v. Cohen, 131 F.3d 273 at 279 (2d Cir. 1997).  Where “public property is not by tradition or government designation a forum for public communication, a State may reserve the use of the property for its intended purposes, as long as a regulation on speech is reasonable and not an effort to suppress expression because public officials oppose the speaker’s view.” Perry Education Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37at 46 (1983).  The Supreme Court has stated that the “business of military installations is to train soldiers and not to provide a public forum.” Greer v. Spock , 424 U.S. 828 at 838 (1976).

It could be argued that the Medal of Honor ban is content and viewpoint based, since other similar games are still allowed to be sold on military bases.  In Modern Warfare 2, players take the role of Russian and unnamed Arab soldiers against American soldiers.  Federal courts are likely to note that military bases are non-public forums and find that the speech restriction is reasonable.  On the other hand, the ban could be viewed as an effort by military leadership to “suppress expression because military officials oppose the view” and thus overturned.

At the end of the day, EA has little incentive to bring suit since the game was released October 12, 2010.  By the time the matter is resolved, the game will be in the used-games bin for less than $20 at GameStop.