U.S. Military’s Ban of ‘Medal of Honor’ Is An Unconstitional Restriction of Speech

The new Medal of Honor, an upcoming video game scheduled for release in October, will not be sold on U.S. military bases due to objections over the game’s content, specifically the “well-documented reports of depictions of Taliban fighters engaging American troops.”

The commanding general of the Army and Air Force Exchange Services explained the policy as follows:

“Out of respect to those we serve, we will not be stocking this game…. We regret any inconvenience this may cause authorized shoppers, but are optimistic that they will understand the sensitivity to the life and death scenarios this product presents as entertainment. As a military command with a retail mission, we serve a very unique customer base that has, or possibly will, witness combat in real life.”

Of course, there are plenty of other violent war-based FPS games available through the AAFES. It appears that the military’s ban on video games in which you play the role of the “bad guy” is limited to incidences in which you are playing a bad guy that is killing American troops. As noted by GamePolitics, “while Medal of Honor was pulled because players could assume the role of Taliban fighters, as of the time of this article, it was still possible to purchase Call of Duty: Modern Warfare 2 from AAFES stores, which featured a mission in which the player acts as a terrorist, shooting civilians in a Russian airport.”

This seems like a clear example of the government implementing a content-based restriction on speech. Under the First Amendment, such content-based restrictions of speech must be ‘narrowly tailored to serve a compelling state interest.’ Restrictions that are also viewpoint-based get a higher level of scrutiny yet. The AAFES’ refusal to sell Medal of Honor on military bases is a content-based restriction and, I’d argue, also a viewpoint-based one, particularly given the manner in which Medal of Honor has been singled out.

True, the military often gets some leeway when it comes to Constitutional restrictions, particularly when “national security” is invoked. But as held by a district court earlier this year in Nieto v. Flatau , “[w]hile military officials are entitled to great deference in restricting speech to further the military’s needs, they may not do so in a manner that discriminates against a particular point of view.” Additionally, any argument that this is a restriction of “commercial speech” would almost certainly fail. This is a refusal to sell a piece of media because of what it portrays — in that regard, restrictions based on a video game’s content should be evaluated in exactly the same manner as restrictions based on a book’s content.

And the ban on Medal of Honor doesn’t even come close to passing the degree of scrutiny required for such restrictions. “[S]ensitivity to the life and death scenarios this product presents as entertainment” is not a compelling state interest.

-Susan

2 thoughts on “U.S. Military’s Ban of ‘Medal of Honor’ Is An Unconstitional Restriction of Speech

  1. While I understand the possibility of violation of constitutional rights, for the given scenario…who cares? The AAFES statement was carefully written to identify “…authorized shoppers…” as their target audience. There has been no restriction placed on individuals within the military preventing them from purchasing the video game somewhere else. Is it not the right of an organization to refuse to promote something as trivial as a video game? Does it matter that the organization feels ethically and/or morally against placing this item on it’s shelves? Is it not wrong then to force that organization to act against what it feels is wrong? Is it more important to give “wanna-be’s” the ability to play Army than to protect the family members of those who may have been affected?
    Again, it is a video game. Why even bother to spend time getting upset over it? It’s not like this one video game will become the “tip of the iceberg” in a string of lost constitutional rights. AAFES has a very specific customer base, by not keeping this game on their shelves they are in fact not preventing anyone who really wants the game to have it.
    There is also a difference in “Taliban” and “Terrorist”. While sometimes referred to as one in the same, Taliban is a specific organization identified as an adversary to the United States. A terrorist is a general term that only has identity to a culture or organization through our own stereotypes.

  2. Pingback: An Inquiry Into the History of First-Person Shooter Video Game Villains, Pt. 2 | The View From LL2

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