Gregory Cherms is the father of an adult son who is allegedly addicted to video games. I don’t know which game or games in particular this young man was playing so much that his father felt it necessary to take some kind of action. It’s not particularly important.
Most parents finding such behavior in their adult children would shake their head in sad frustration and disappointment at the spectacle of their children playing video games all day long, but in September of last year, the elder Mr. Cherms chose a different path. He sued Electronic Arts, Sony Online Entertainment, and Warner Brothers Entertainment for not providing warning labels on their products that they could be addictive.
This is the sort of thing that leaves a lot of people with the phrase “frivolous lawsuit” on their lips, and so I’m going to need to have a one or two sentence remark about it when someone expresses outrage at some undefined point in my future like a cocktail party or a conversation on an airplane, when I’m sure to be put on the spot to apologize for something someone else has done for no better reason than that I’m a lawyer and thus associated with a legal system about which my interlocutor is likely not well-educated.
That’s a dicey proposition when, as here, I’m kind of inclined to agree that this particular use of the legal system wasn’t a very good one, but I want to resist getting sucked into a dreary dialogue about whether the doors to our courthouses ought to be closed based on an impossibly ill-defined standard, poorly articulated by someone who is already both a bit tipsy and lacking either experience with, or perspective about, the legal system he criticizes. But knowing this will likely soon enter the realm of urban myth, needs must I arm myself with both knowledge of what actually happened, and a pithy response to the near-inevitable challenge.
So here’s what actually happened.
The defendants responded to Mr. Cherm’s suit with a motion to dismiss this case under California Code of Civil Procedure section 425.16 to have the lawsuit thrown out of court at an early date, and require the plaintiff to pay the defendant’s attorney’s fees and court costs for the privilege of having sued the defendant and lost. In order to make such a motion, the defendants prove that the activity purportedly giving rise to liability as alleged in the complaint is conduct of public interest protected by the First Amendment right of free speech or the California Constitution’s equivalent of it. If the defendants can do that, the burden falls upon the plaintiff to produce admissible evidence that he is likely to win the lawsuit on its merits, notwithstanding the defendants’ invocation of their free speech rights.
This law has come in to play in many prominent California cases, most famously one involving a photograph of a well-known entertainer’s lovely home. Surprisingly, the statute is not well-known by a lot of the attorneys I come across, and consequently I have had the pleasure of availing my clients of it on multiple occasions throughout my career. And when I say “pleasure,” I mean that exact word: filing and winning one of these motions is one of the thrills that attracted me to the legal profession in the first place lo these many years ago. I get to vindicate an important basic right of all citizens. I get to research and apply interesting law. And, I get to pass along my fees to the other guy who was foolish enough to walk right in to a trap. It’s fun.
I’ve never had to oppose such a motion. I think the motion was probably appropriately granted in Mr. Cherms’ case. But I do think that it’s perhaps a closer case than the plaintiff — who was not a lawyer and who filed the lawsuit on his own without the assistance of counsel — could have made it.
Let there be no doubt that the authors and publishers of video games are acting within the ambit of First Amendment protections. That their works of art are often not particularly highbrow, and that they are made for profit, are matters completely irrelevant to this analysis. What I wonder about, though, is whether the grounds cited for use of this special motion by the defendant were well-taken:
Specifically, defendants insist that developing, publishing and selling videogames are acts “in furtherance of” their First Amendment free speech rights and further that the availability of videogames is an issue of “public interest,” both of which fall within the scope of protections afforded by §425.16.
The plaintiff chose not to contest these assertions, so the Court appropriately treated that matter as settled for purposes of considering the motion.
Other products are sold under requirements that they bear warning labels. Tobacco products, sometimes alcohol, medications, and all manner of consumer products like power tools, ladders, and household cleaning solvents or soaps. Particularly here in California, nearly any sort of product that is theoretically ingestible, even if not intended for bodily consumption, is likely to need a warning label of some sort under Proposition 65. These products are still widely and easily available and the cost to the manufacturers of providing these warning labels is in most situations close to trivial — and more importantly, do not impermissibly diminish their manufactuers’ ability to engage in free speech.
What is qualitatively different about a video game, as opposed to soap, that places an undue burden hampering distribution of the product to the retail market that would make a warning label requirement a burden on the publisher or the author’s rights of free speech? Like the motion picture industry, the video game industry has enacted a form of self-regulation, printing labels disclosing the games’ content to consumers (and parents of those consumers). All of the defendants in this case participate in that voluntary practice and they seem to have suffered no diminishment whatsoever in their ability to communicate with their audiences. So how big a burden would a legal requirement to do pretty much what they are already doing voluntarily be?
I hesitate to say that a requirement that video game publishers also disclose that some consumers of their products have been known to consume the product immoderately and at the expense of other dimensions of a balanced life is required. All sorts of products, both entertainment products or ingestibles or who knows what else, are susceptible of being used in an obsessive, addictive fashion, and the problem is not the provider of the product. A guy who buys a bicycle and gets really in to bicycle riding, enough so that he abandons his job and neglects his family, might be said to have become addicted to bicycling — and the manufacturer of the bicycle is not responsible for that whether there is a warning label on the bike or not, he may even get healthier lifestyle and start to buy kratom and other natural supplements to help his body. So I don’t think much of the merits of Mr. Cherms’ argument that a video game must contain a warning label that some people get addicted to video games.
I also question whether the availability of video games is an issue of particular public interest. Certainly I can see the argument — these are works of art, things that have an impact on the broader culture. But, given the widespread assumption that exposure to media content that sexually explicit, violent, or involves substance consumption can be harmful to children, I might even be persuaded that fashioning reasonable restrictions on the availability of these works of art to young children is a matter of public interest greater than the freedom of the publisher to sell them to anyone who wants to buy them.
But regardless of the free speech issues, the ultimate outcome of the case seems correct to me as a matter of legal causation. Mr. Cherms’ son is an adult. He is responsible for his own actions and if those actions include playing video games to the point that he neglects his family, his education, and his career, that’s on him. Mr. Cherms ought to have no more complaint about the video game publishers creating an addictive product than he would have a claim against Diaego if his son drank too much and had become an alcoholic.
Also, Mr. Cherms’ evidence on the merits sucked. It consisted mainly of the video game box covers (sans addictivity-warning labels) and an excerpt from a book expressing an opinion about the advisability of such labels. There were pleading problems, too, that probably would have required a lawyer’s touch to rescue. The whole opinion is only two pages long and the bulk of it should be readily understandable by a layperson.
So even though I realize that it is an imposition to require a product manufacturer to provide a warning label, and the degree of that imposition is one which I think is a bit murkier than was stipulated in this case, I agree with the result. Perhaps in an ideal world, there would be a more thorough exposition of the speech issues. It’s not an ideal world, though, and the opinion reaches the same result I would have reached had I been the judge, notwithstanding the fact that this judge took a slightly different route to get to that result than I probably would have.
And let’s not forget that it’s far, far better than Mr. Cherm file an unmeritorious lawsuit than that he not have access to the justice system and grow frustrated and bitter with his inability to air his grievance anywhere, and then locate a weapon to take with him to the defendants’ places of business and resolve matters the old-fashioned way.*
But those aren’t the sorts of points that a cocktail-party interlocutor will absorb easily.
So when that drunk corners me and accusingly says, “Oh yeah? Well, what about all those lawyers filing frivolous lawsuits against video game companies?” I need to have a ready response. It has to be fast to say, and very easy to understand, because it’s quite likely my interlocutor will lack the patience, impartiality, and sobriety to massage the nuances.
I think my answer will be, “What? The guy that tried that lost.” Exploration of gray-shaded wrinkles in public policy is better-suited for a forum like this.
* I don’t imply that Mr. Cherm, a man whom I do not know, would ever do such a thing. But it’s tragically easy to image someone doing that. And that’s why we have open, public courts in which anyone can file a lawsuit against anyone else, for anything, at any time.
Burt Likko is the pseudonym of an attorney in Southern California. His interests include Constitutional law with a special interest in law relating to the concept of separation of church and state, cooking, good wine, and bad science fiction movies. Follow his sporadic Tweets at @burtlikko, and his Flipboard at Burt Likko.