George Mason Law Review Civil Rights Law Journal

B. Mediums of Expression, Media Artifacts, and Money

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B. Mediums of Expression, Media Artifacts, and Money

Beyond the realm of symbolic speech and expressive conduct, debates exist and notions shift as to whether particular media artifacts constitute speech. This is correlated to the Supreme Court’s declaration that “the Constitution looks beyond written or spoken words as mediums of expression.”59 For instance, motion pictures once were not considered speech,60 but today are categorically recognized as such.61 Further, although only three decades ago “[c]ourts almost unanimously held that video games lacked the expressive element necessary to trigger the First Amendment,”62 in 2011, the Supreme Court definitively declared that “video games qualify for First Amendment protection.”63 Yet, while that may be the case for video games, “games, in general, are not protected speech.”64


*556 What about money as a medium of expression? Spending money can constitute--or at least enable--speech,65 but money itself is not speech.66 As Professor Frederick Schauer wryly observed nearly two decades ago, “[m]oney is money, speech is speech, and most competent speakers of English take the words ‘money’ and ‘speech’ to be largely extensionally divergent, such that few instances of money are properly called ‘speech,’ and few instances of speech are properly called ‘money.”’67


In 2011, in Brown v. Entertainment Merchants Association, the Court concluded that video games constitute speech. Speaking for the majority, Justice Scalia wrote that “[t]he Free Speech Clause exists principally to protect discourse on public matters, but we have long recognized that it is difficult to distinguish politics from entertainment, and dangerous to try.”68 Justice Scalia added:

Like 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). That suffices to confer First Amendment protection.69



*557 This language, as addressed in further detail in the next section, carries implications for the meaning of speech beyond the realm of video games.


Additionally in Brown, Justice Scalia obliterated any vestige of an argument that value judgments regarding the sophistication of content--or the personal edification sought from it--affect whether something is considered speech. He wrote that “cultural and intellectual differences are not constitutional ones,”70 and that “[c]rudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy.”71


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