Hot Coffee and Freeze-Dried First Amendment Analysis: The Dubious Constitutionality of Using Private Ratings for Public Regulation of Video Games

This Note argues that simply grabbing pre-packaged analysis off the ESRB’s shelf and running it through legislative machinery is not a recipe for good, or even constitutionally acceptable, law. This legislation, which curtails expression protected by the First Amendment, cannot rest on such stale standards. Additionally, this Note aims to suggest the importance of a serious and respectful application of First Amendment jurisprudence for video games. Although a recent phenomenon, video games comprise a medium that is increasingly popular and has already begun to demonstrate the ability for expression as sophisticated and powerful as any other speaker in the modern marketplace of ideas. Any legislation governing the medium should be grounded in fresh First Amendment analysis. But the legal percolation of the “Hot Coffee” controversy should also serve as a wake up call for the expressive possibilities of the medium as a whole.