Warning! The First Amendment Gives us a Right to Cause Addiction in Teens

By Garrett Handegan

On May 25, 2019, the World Health Organization (“WHO”) officially voted to include video game addiction, otherwise known as “gaming disorder,” as a behavioral addiction.[1] While the American Psychiatric Association says that the issue of video games being addictive is still being debated, they admit that early evidence shows not only are they addictive, but that they are potentially one of the most addicting technologies around.[2] Not only are they addictive, they are intentionally designed to be so.[3] The worry about children being addicted to video games is not unique to America, China’s growing concern over the issue has led them to limit the amount of time that children are allowed to play video games.[4] In 2022, a Canadian judge approved a class-action lawsuit against Epic Games that alleged their children would stop sleeping, eating, or bathing to play Fortnite.[5] The judge explained his reasoning in part by likening video game addiction to tobacco addiction because similar to video game addiction now “the harmful effect of tobacco was not recognized or admitted overnight.”[6] Meanwhile, in America, we have seen several lawsuits filed alleging the same thing, that companies are intentionally getting children addicted to video games.[7]

A major point that these lawsuits have to contend with is that video games as a medium of expression are protected by the first amendment.[8] While there are exceptions, it is generally recognized that the government has no authority to restrict this expression because of its message, ideas, subject matter, or its content.[9] To developers, the aspects of their games that make them addictive are nothing more than them exercising their First-Amendment right to express their message in games, and the fact that this expression is addictive, or “too entertaining,” should not prevent them from doing so.[10] In support of this line of thinking developers point to the fact that just because a form of expression may be considered “too persuasive,” that does not mean that the state may limit it.[11] While the defendants may be right that they can make the game as addictive as they want, that does not automatically clear them of any responsibility.

The cause of action alleged, that of negligent design and failure to warn, are at their roots, product liability cases.[12] Here, comparing the claims to current product liability claims against social media companies can be helpful. First Amendment scrutiny is triggered when the speaker’s own message is affected by the speech that it is required to accommodate.[13] It is unlikely that by simply requiring a warning a court would find that the speaker’s message was affected. In reviewing a lower court’s decision, the Eleventh Circuit found that a statute requiring social media platforms to, among other things, publish their standards and inform users about rule changes, did not trigger first amendment scrutiny.[14] In other words, simply requiring platforms to inform users about the platform does not affect the speaker’s message. Therefore, it is likely that simply requiring a warning about how video games are addictive would not violate the First-Amendment.

The Northern District of California reached a similar decision on a negligent design claim against social media companies.[15] The plaintiffs alleged that by not providing, among other things, effective parental controls and as well as ways to self-restrict usage, the social media companies were negligently designed, the court disagreed and therefore denied the motion to dismiss in regard to this claimed defect.[16] It is likely a similarly alleged defect would meet the same fate. This does come with one caveat, the defendants in this case did not specifically make an argument on whether the First Amendment protects them from having to give a warning or notice.[17] The fact remains, however, that requiring a warning would not change how or what speech is disseminated.[18]

From these cases, we can see that while companies may have a First-Amendment right to make their games as addictive as they please, they may still be liable for failing to warn users of just how addictive they are. This makes intuitive sense. It is common knowledge that cigarettes are addictive but look on the package of any cigarette carton and you will see warnings about the addictive nature. It is unclear if simply requiring a warning would ultimately have any effect on curbing video game addiction, but at least parents would know to be on the lookout.

Image Source: https://www.freepik.com/free-vector/online-games-addiction-illustration_7913063.htm

[1] Anya Kamenetz, Is ‘Gaming Disorder’ An Illness? WHO Says Yes, Adding It To Its List of Diseases, May 28, 2019, 5:48 PM), https://www.npr.org/2019/05/28/727585904/is-gaming-disorder-an-illness-the-who-says-yes-adding-it-to-its-list-of-diseases.

[2] Tyler Wilde, You can’t use us for making games ‘too entertaining’ say major game developers in response to addiction lawsuits, (Mar. 27, 2024), https://www.pcgamer.com/gaming-industry/video-game-addiction-lawsuit-motion-to-dismiss/.

[3] Id.

[4] Id.

[5] Children stopped sleeping and eating to play Fortnite – lawsuit, (Dec. 9, 2022), https://www.bbc.com/news/world-us-canada-63911176.

[6] Id.

[7] Michael Ryan Gerra-Clarin, Are Games Too Addictive? Game Devs Say No As They Hope to Dismiss Lawsuit, (Mar. 31, 2024, 5:41 AM), https://game8.co/articles/latest/are-games-too-addictive-game-devs-say-no-as-they-hope-to-dismiss-lawsuit.

[8] Brown v. Entertainment Merchants Ass’n, 564 U.S. 786, 790 (2011).

[9] Id. at 790-791

[10] Wilde, Supra note 2

[11] Id.

[12] Id.

[13] Rumsfeld v. F. Acad. & Institutional Rts., Inc., 547 U.S. 47, 63 (2006)

[14] Netchoice, LLC v. Att’y Gen., Fl., 34 F.4^th 1196, 1230 (11th Cir. 2022).

[15] In re Soc. Media Adolescent Addiction/Pers, Inj. Prods. Liab. Litig., Case No. 4:22-md-03047-YGR, 2023 WL 7524912 (N.D. Cal. Nov. 14, 2023).

[16] Id.

[17] Id. at n.26.

[18] Id.