Selling Violent Video Games — Constitutionally Protected Commerce?

I don’t have time to look into the matter myself just now — what with saving the environment and everything — but I think Glenn Reynolds left out an analysis of possibly the most interesting part of the case in his post about a court ruling unconstitutional, on free expression grounds, an Illinois ban on the sale of sexual and violent videogames to kids.

Selling video games to anybody is commerce, and the courts have been unwilling to freely apply the free speech clause to commerce. So, why was this case different?

A few years ago Nike got into trouble for, among other things, saying in correspondence that it had honorable hiring practices. Somebody who disagreed sued. Nike tried to have the suit thrown out on the grounds that it had the free expression right to defend its own reputation; the California Supreme Court declined to throw out the suit. Nike appealed to the U.S. Supreme Court, which declined to hear the case — leaving Nike’s free expression rights limited.

Had Nike been sued for creating and selling a violent video game, could it have successfully used a free expression defense? Is creating and selling a violent video game a “right” more worthy of protection than writing a letter about hiring practices?

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