Sony’s Removal of Advertisements Raises Hypthetical Constitutional Questions

Posted by Liz Surette on March 17, 2009

With all the recent discussion about Sony voluntarily pulling ads for Killzone 2 that were near schools in Toronto, questions have been raised about where American law stands on advertisements near schools–despite the lack of government action (or even the applicability of the United States Constitution) in this scenario.

Of course, Sony is a private entity and as far as granting community requests to remove advertising they can do what they want. Many have questioned why the government did not step in. If this were the US, then the answer would be because they would likely lose a First Amendment challenge.

Assuming this took place in the United States, and assuming the government–whether through injunction or ordinance/statute–had restricted the placing of ads for violent video games within a certain distance of schools, the First Amendment would be implicated. Content-based restrictions on speech (such as a hypothetical ordinance forbidding the advertising of violent video games within 1,000 feet of a school, for example) are Constitutional only if they are regulating certain types of speech and if the restriction comports with the legal test that is appropriate for that category. Commercial speech is an example of this.

It may seem obvious, but it bears stating that a posted item which attempts to persuade the viewer to purchase something constitutes commercial speech(1). When commercial speech is regulated, a four-part test from the case Central Hudson is triggered(2). If the test is satisfied, then the government regulation of the speech is constitutional. The four elements are as follows:

A. The speech is neither misleading nor related to unlawful activity,
B. The government’s asserted interest is substantial,
C. The regulation directly advances the government interest, and
D. The regulation is the least restrictive means of such advancement.

As for restricting the placement of advertisements near schools, the Supreme Court invalidated a law that prohibited advertisements of tobacco products within 1,000 feet of any school in Massachusetts(3). The prohibition directly advanced the state’s interest in preventing underage tobacco use. However, the demographics of the state rendered the regulation much too restrictive to survive due to it being a de facto banning in urban areas with high concentrations of schools.

Protecting the well-being of minors (a common justification for restrictions on the game industry) has been recognized as an important state interest. However, unlike Lorillard (in which tobacco’s negative impact on children was undisputed), there is no evidence to support a claim that minors would be harmed if they were to acquire violent video games. Therefore, it cannot be said that prohibiting ads for those games directly advances that interest. Further, the content of an advertisement does not change the locations of schools, and so a 1,000 foot radius around a school would still be unreasonable in an urban area. If this issue were to arise in a more rural state, a court might find otherwise. But due to the lack of a relation between prohibiting ads for violent games and protecting minors, the reviewing court would still most likely strike down the law.

In sum, no one should lose any sleep over the Sony situation. Even if a governmental body pulls similar ads in America, that prohibition would not last long.

1. See Virginia Pharmacy Board v. Virginia Citizens Consumer Council, 425 US 748
2. See Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 US 557
3. See Lorillard Tobacco Co. v. Reilly, 533 US 525

Popularity: 14% [?]