A lawyer for the maker of the video game Call of Duty argued Friday that a judge should dismiss a lawsuit brought by families of the victims of the Robb Elementary School attack in Uvalde, Texas, saying the contents of the war game are protected by the First Amendment.
The families sued Call of Duty maker Activision and Meta Platforms, which owns Instagram, saying that the companies bear responsibility for products used by the teenage gunman.
Three sets of parents who lost children in the shooting were in the audience at the Los Angeles hearing.
Activision lawyer Bethany Kristovich told Superior Court Judge William Highberger that the “First Amendment bars their claims, period full stop.”
“The issues of gun violence are incredibly difficult,” Kristovich said. “The evidence in this case is not.”
She argued that the case has little chance of prevailing if it continues, because courts have repeatedly held that “creators of artistic works, whether they be books, music, movies, TV or video games, cannot be held legally liable for the acts of their audience.”
The lawsuit, one of many involving Uvalde families, was filed last year on the second anniversary of one of the deadliest school shootings in U.S. history. The gunman killed 19 students and two teachers. Officers finally confronted and shot him after waiting more than an hour to enter the fourth-grade classroom.
At the hearing, the families’ attorney, Josh Koskoff, argued that the game goes beyond artistic representation into marketing weapons to teenagers.
He showed contracts and correspondence between executives at Activison and gun makers whose products, he said, are clearly and exactly depicted in the game despite brand names not appearing.
“Likenesses of brands,” Koskoff said, “whether they are labeled or not, is of great value to Call of Duty.”
The families have also filed a lawsuit against Daniel Defense, which manufactured the AR-style rifle used in the May 24, 2022, shooting.
Koskoff said the shooter experienced “the absorption and the loss of self in Call of Duty.”
He said that immersion was so deep that the shooter searched online for how to obtain an armored suit that he didn’t know only exists in the game.
Koskoff played a Call of Duty clip, with a first-person shooter gunning down opponents.
The shots echoed loudly in the courtroom, and several people in the audience slowly shook their heads.
“Call of Duty is in a class of its own,” Koskoff said.
Family lawyers are expected to argue the First Amendment issues of the Activision case later Friday.
The motion for Activision to be dismissed as a defendant is based on California’s anti-SLAPP law, or “strategic lawsuits against public participation.”
It is meant to block lawsuits filed to intimidate or silence critics.
Highberger asked Kristovich whether it was appropriate for a major company to invoke a statute meant to protect “the little guy” against a powerful opponent.
“The statute is clear, it does not depend on the court’s characterization of big guy, little guy or medium guy,” Kristovich said. “The First Amendment applies regardless of the size of your pocketbook.”
Highberger told the lawyers he wasn’t leaning in either direction before the hearing, and it is unlikely he will issue a ruling immediately.
The judge did tell the plaintiffs’ lawyers that their description of Activision’s actions seemed like deliberate malfeasance, where their lawsuit alleges negligence. He said that was the biggest hurdle they needed to clear.
