A visually impaired gamer has brought a lawsuit against Sony Entertainment claiming violations of the Americans with Disabilities Act (ADA) for failure to make its video games and online video games accessible to differently-abled players. Regardless of the merits of this claim, Sony is seeking the enforcement of an arbitration clause in the Terms of Service of its game to bar this claim from being brought to court. The plaintiff argues that this clause is unenforceable and that his motion for a jury trial should be granted.

Under the Sony Terms of Service all claims against the company by users must be submitted to binding arbitration. A similar clause was challenged for the virtual world Second Life in Bragg v. Linden Research in 2007. A contract clause is generally upheld regardless of whether the parties have had an opportunity to discuss or negotiate the language as long as the clause is not so one-sided as to be oppressive. While not held to be oppressive,the clause in Second Life’s Terms of Service was stricken as unenforceable because while there were other virtual worlds for Bragg to play, the court agreed with him that they were not “reasonable” alternatives.The reason for this determination is that Second Life allows its users to retain intellectual property ownership in their online creations, which at the time was a policy completely unique to Second Life. In the present case the plaintiff did not present an argument that he didn’t have any reesonable alternatives to Sony’s game(s), to the contrary, his complaint lists several games and virtual worlds that offer accommodations similar to the ones he is seeking. For this reason, and because his complaint does not sufficiently allege unenforceability, it is unlikely that the court will grant plaintiff’s motion for a jury trial.

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As of January 1, 2010, paparazzi that commit an assault while attempting to photograph, videotape or record an individual may be liable for three times the amount of general damages caused by the assault. They will also be prohibited from profiting from the media they obtain. Similarly, publishers, such as newspapers and magazines, may be held liable for directing, inducing or soliciting such behavior.

The law taking effect was signed by California Governor Arnold Schwarzenegger in October 2009 and will amend California Civil Code section 1708.8, which was enacted pursuant to a bill passed in 1998. Known by many people as “Stalkerazzi,” one of the main restrictions contained in the current version of section 1708.8 is the prevention of photographing, videotaping or recording of an individual engaged in a personal or familial event, during which said individual had a reasonable expectation of privacy. Section 1708.8 is not being superseded by the amendment, but just being added to. One repercussion of the inclusion of an additional punishment for publishers implicitly supporting assaults by paparazzi may be a chilling effect on speech. This chilling effect could be unconstitutional.

The First Amendment of the United States Constitution states that, “Congress shall make no law…abridging the freedom of speech, or of the press…” Contrary to popular belief, this Constitutional right to free speech has restrictions. There are certain exceptions that have been upheld by the United States Supreme Court. However, a law abridging a group’s freedom of speech, if challenged in court, must be analyzed under one of three legal standards to determine whether it is constitutional: the rational basis test, intermediate scrutiny or strict scrutiny. Content-based speech restrictions must pass strict scrutiny.

Although Stalkerazzi may not be a content-based restriction on its face, it is likely so in practice. Stalkerazzi would punish people violating the law whether celebrities are the subject of the photographs or video, or whether an unknown person is the subject. But realistically, this law will apply mostly to paparazzi-obtained, celebrity-based media. Most stalkers of non-famous people will probably not go to the extreme of viciously chasing someone’s vehicle to get a photograph, as paparazzi have done to unfortunate celebrities including Reese Witherspoon and Lindsay Lohan. Photographs, video and recordings of celebrities will be predominantly affected. News outlets may be hesitant to run media containing celebrity subjects for fear of being held in violation of section 1708.8. This is the potential chilling effect Stalkerazzi could have on dispensing news and information to the public.

Since Stalkerazzi is a content-based speech restriction, it must pass strict scrutiny, which means it must be the least restrictive means to accomplish the desired goal, and there must be a compelling government interest justifying the need for the restriction. If Stalkerazzi is challenged, it will have to pass this standard in court.

In addition to possibly violating First Amendment free speech protection by potentially unjustifiably restricting content-based speech, it is also possible Stalkerazzi could violate the First Amendment for other reasons, such as being overbroad or vague.