FRANK E. CASWELL vs. LICENSING COMMISSION FOR BROCKTON.

HENNESSEY, C.J. The plaintiff, Frank E. Caswell, commenced an action for declaratory relief and for relief in the nature of certiorari against the defendant, the licensing commission for the city of Brockton (commission). Caswell's complaint sought review of the commission's denial, under G. L. c. 140, Section 177A, [Note 1] of Caswell's application for licenses for seventy-five coin-operated electronic amusement games, commonly known as video games. After a hearing, a Superior Court judge denied a motion by Caswell for summary judgment and granted the commission's motion for summary judgment. Judgment was entered, without opinion, dismissing Caswell's complaint. Caswell then filed his appeal.

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Caswell contends that G. L. c. 140, Section 177A, is unconstitutional under the United States and Massachusetts Constitutions both on its face because it is impermissibly vague and as applied because it violates rights to free expression and association. [Note 2] Caswell also asserts that, aside from the constitutional issues, the commission incorrectly interpreted the standard for denying a license application and that the evidence presented in this case is insufficient as a matter of law to support a denial of Caswell's application. We disagree with Caswell's constitutional arguments but conclude that the commission may have incorrectly interpreted and applied G. L. c. 140, Section 177A.

The judge, in ruling upon the motions for summary judgment, had before him for consideration the entire record of the proceedings before the commission as well as supplementary affidavits. We summarize pertinent facts immediately below and in subsequent parts of this opinion.

In 1981, Caswell, a resident of Brockton and the owner of a local restaurant, sought to enter the business of operating an entertainment center featuring coin-operated video games. To this end, Caswell leased premises in a freestanding building adjacent to the Westgate Mall shopping area in Brockton. In April, 1981, he filed with the commission applications for licenses for seventy-five video games. At a public hearing, Caswell presented a comprehensive plan for the design, maintenance, and operation of his video game entertainment center. The plans called for carpeting and acoustical ceilings to minimize noise. The interior would be decorated with plants and the exterior would be finished and landscaped. The following rules would be posted at the center and strictly enforced: no smoking, eating, drinking, or loitering, and no school age children

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admitted during school hours. To prevent loitering, Caswell's premises would have no seats. To ensure that the rules would be enforced and to control crowds, Caswell proposed to keep at least four people on duty at the center at any given time. Furthermore, at least one employee would patrol the parking area. Caswell planned to hire an off-duty police officer to patrol the parking area; he also agreed to contribute toward the cost of the security forces at the nearby Westgate Mall.

At the hearing, the commission considered written and telephone communication from community members and officials. The commission also heard testimony from a city councillor, an attorney representing the owners of the Westgate Mall, and a lieutenant of the Brockton police department. These people voiced opposition to the granting of the licenses. Various concerns with the arcade were expressed, including the adverse impact the proposed video center might have on an existing problem of youths congregating in the Westgate Mall area and on the high school's absentee rate. Concern was also expressed that patrons of Caswell's entertainment center would park in the Westgate Mall's shopping area and would cross a dangerous street to go to the arcade. The commission stated at Caswell's hearing that no policy exists against licensing video games or arcades. In July, 1981, the commission denied Caswell's applications, stating that the decision "was based on the opinion of the members that an arcade at this location would not be in the best interests of the City of Brockton." The commission cited "the proximity of Westgate Mall and the public safety problems which might arise therefrom" as particular concerns supporting the denial.

1. Caswell argues that G. L. c. 140, Section 177A, on its face and as applied by the commission, violates fundamental rights of free expression under the United States and Massachusetts Constitutions. A dispositive threshold issue is whether the video game entertainment that Caswell sought to present is expression entitled to constitutional

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protection. [Note 3]

The First Amendment protects the communication or expression of ideas or information. See Cohen v. California, 403 U.S. 15, 25-26 (1971). Entertainment may come within the ambit of the First Amendment, but to gain protected status, that entertainment must be designed to communicate or express some idea or some information. See Schad v. Mount Ephraim, 452 U.S. 61, 65 (1981) (nude dancing); Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933 (1975) (nude dancing); Erznoznik v. Jacksonville, 422 U.S. 205, 208-210 (1975) (drive-in movies); Southeastern Promotion, Ltd. v. Conrad, 420 U.S. 546, 556-558 (1975) (stage musicals); Schacht v. United States, 398 U.S. 58, 62-63 (1970) (theatrical skit conducted on the street). The Supreme Court of California has suggested standards to be applied in determining which types of entertainment and amusement may be entitled to First Amendment protection. That court stated: "[N]o case has ever held or suggested that simple physical activity falls within the ambit of the First Amendment, at least in the absence of some element of communicating or advancing ideas or beliefs. . . . '[A]ll forms of communication, not merely the expression of concrete and definite ideas, potentially receive First Amendment protection. . . . The key element is, of course, communication" (emphasis in original) (citation omitted). Sunset Amusement Co. v. Police Comm'rs of Los Angeles, 7 Cal. 3d 64, 74 (1972), appeal dismissed, 409 U.S. 1121 (1973), quoting In re Giannini, 69 Cal. 2d 563, 569 (1968), cert. denied, 395 U.S. 910 (1969), overruled in part on other grounds in Crownover v. Musick, 9 Cal. 3d 405, 424-428, 431 (1973), cert. denied sub nom. Owen v. Musick, 415

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U.S. 931 (1974). Under this standard, the court concluded that the physical activity of roller skating in a public roller skating rink was not protected speech because, although some expression might be involved, the patrons of the skating rink "primarily use the facilities for physical exercise and personal pleasure." Sunset, supra. The court noted that a nonobscene dance for an audience was protected because of the element of communication between the artist or performer and an audience. Id., citing Giannini, supra at 567-572. See also Commonwealth v. Blackgammon's, Inc., 382 Mass. 610, 622 (1981) (recreational dancing is "not to the same extent [a form] of expression protected by the First Amendment . . . [because recreational dancing] is not that of a performer, paid or otherwise, whose performance is presented for the entertainment of the public").

In this case it is clear that video games contain an element of physical activity. Indeed, an affidavit presented on behalf of Caswell states that "[s]uccessful play on these video games depends on the player's eye-hand coordination, reflexes, muscular control, concentration, practice, and on the player's understanding of the rules of play" (emphasis supplied). Nevertheless, Caswell argues that video games are deserving of First Amendment protection because they do contain communicative and expressive elements, analogous to motion picture and television entertainment. See Oltmann v. Palos Hills, No. 82 CH 3568, slip op. at 13-14 (Ill. Cir. Ct., Aug. 20, 1982) (trial judge determined that, since video games are similar to movies, they deserve First Amendment protection); Gameways, Inc. v. McGuire, N.Y.L.J., May 27, 1982, at 6, col. 2 (N.Y. Sup. Ct. May 3, 1982) (In ruling on motion for preliminary injunction, trial judge stated: "Considering the fact that other forms of expression no more 'informative' than video games -- viewing nude dancing through a coin operated mechanism -- have been recognized as constitutionally protected and the elusive line between informing and entertaining, this court concludes video games are a form of speech protected by the First Amendment"). Cf. Stern Elecs., Inc. v. Kaufman,

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523 F. Supp. 635, 639 (E.D.N.Y. 1981) ("In essence, the [video game] is a movie in which the viewer participates in the action as the fearless pilot controlling the spaceship"), aff'd, 669 F.2d 852, 853-854, 856-857 (2d Cir. 1982). But see America's Best Family Showplace Corp. v. City of N.Y., 536 F. Supp. 170, 173-174 (E.D.N.Y. 1982) (video games not protected speech because no element of information or idea is being communicated); Playtime Games, Inc. v. City of N.Y., N.Y.L.J., June 15, 1982, at 12, col. 6 (N.Y. Sup. Ct. 1982) (following America's Best).

Caswell asserts that video games are similar to television and motion picture entertainment in that every video game computer program represents the author's expression of a particular idea or fantasy in a tangible form. This idea or fantasy, Caswell submits, is transmitted to the consumer by means of audio and visual effects. An affidavit presented on behalf of Caswell discusses the video game "Space Invaders" as representative of the other seventy-four games that Caswell proposed to license. The affidavit indicates that video games contain computer programs that are stored in a memory. These computer programs, with the aid of circuitry, a cathode ray tube, and speakers, can reproduce continuously an audio visual display of images for video game-playing. The affidavit also indicates that the computer programs have a plot or theme -- in the case of Space Invaders, the game player must strive to shoot down attacking invaders before the player's own laser bases are destroyed.

On the record before us, however, we conclude that Caswell has not satisfied his burden of demonstrating that video games are or contain protected expression. Although the affidavit indicates that video games might involve the element of communication that is the sine qua non of First Amendment protection -- for example, a player may strive to shoot down invaders -- this showing is insufficient to demonstrate protected expression. We emphasize that nowhere in his pleadings or in affidavits submitted on his behalf does Caswell indicate that he has any further evidentiary showing to

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make on the First Amendment issues in this case. We also note that, in the proceedings before the commission, Caswell never mentioned the applicability of the First Amendment to this case. We conclude that summary judgment was granted properly against Caswell despite Caswell's constitutional arguments, because he has failed to demonstrate that video games import sufficient communicative, expressive or informative elements to constitute expression protected under the First Amendment to the United States Constitution or art. 16 of the Massachusetts Declaration of Rights, as amended by art. 77 of the Amendments. From the record before us, it appears that any communication or expression of ideas that occurs during the playing of a videogame is purely inconsequential. Caswell has succeeded in establishing only that video games are more technologically advanced games than pinball or chess. That technological advancement alone, however, does not impart First Amendment status to what is an otherwise unprotected game. Hence, we determine that on this record protected expression has not been shown.

2. Caswell maintains that G. L. c. 140, Section 177A, both on its face and as applied, violates his potential patrons' rights to free assembly and freedom of associatio [Note 4] arising under the First Amendment and art. 19 of the Massachusetts Declaration of Rights. [Note 5] Freedom of association guarantees an

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opportunity for people to express their ideas and beliefs through membership or affiliation with a group. See, e.g., NAACP v. Button, 371 U.S. 415, 430-431 (1963); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). In Griswold v. Connecticut, 381 U.S. 479, 483 (1965), the Supreme Court also indicated that this right protects "forms of 'association' that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members." Cf. Gilmore v. Montgomery, 417 U.S. 556, 575 (1974), quoting Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 179-180 (1972) (Douglas,J., dissenting) ("The associational rights which our system honors permits all white, all black, all brown, and all yellow clubs to be formed. They also permit all Catholic, all Jewish, or all agnostic clubs to be established. Government may not tell a man or woman who his or her associates must be"). Caswell urges that potential patrons' freedom of association is infringed by the denial of his license applications because potential patrons have a right of access to his video game arcade. See Aladdin's Castle, Inc. v. Mesquite, 630 F.2d 1029, 1041-1042 (5th Cir. 1980), rev'd in part on other grounds, 455 U.S. 283 (1982). We disagree.

The Supreme Court's reasoning in freedom of association cases does not support a constitutional right on the part of potential patrons to gather at Caswell's proposed arcade for video game amusement. Caswell points to no identifiable group consisting of video game players. Furthermore, even if there were such an identifiable group, gathering in an amusement arcade for the purpose of playing video games would not advance the social, legal, and economic benefits of the group's members in the way that the freedom of association contemplates. Cf. NAACP v. Button, supra (freedom of association encompasses right of NAACP and its members to associate for purpose of assisting persons who seek legal redress of constitutional and other rights).

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3. Caswell contends that G. L. c. 140, Section 177A, is unconstitutionally vague because it fails to set forth any standards to limit administrative discretion. A law is void for vagueness if persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Smith v. Goguen, 415 U.S. 566, 572 n.8 (1974), quoting Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). Vague laws violate due process because individuals do not receive fair notice of the conduct proscribed by a statute, Papachristou v. Jacksonville, 405 U.S. 156, 162 (1972), and because vague laws that do not limit the exercise of discretion by officials engender the possibility of arbitrary and discriminatory enforcement, Grayned v. Rockford, 408 U.S. 104, 108-109 & n.4 (1972). Caswell acknowledges that laws which merely regulate business activities need not contain criteria as precise and definite as laws which affect First Amendment freedoms. We have stated that "[a] law which requires that the exercise of First Amendment rights be subject to license must contain narrow, objective and definite standards, or it is void for vagueness." Fitchburg v. 707 Main Corp., 369 Mass. 748, 752 (1976). Similarly, statutes that do not define or relate to criminal conduct need not be drawn as precisely as statutes that touch upon criminal acts. See Saxon Coffee Shop v. Boston Licensing Bd., 380 Mass. 919, 925 (1980). Since neither First Amendment freedoms nor criminal conduct are concerned in this case, a less stringent vagueness standard applies. Thus, we limit our vagueness analysis to whether G. L. c. 140, Section 177A, is unconstitutionally vague as applied in this case and do not consider whether G. L. c. 140, Section 177A, would be void for vagueness if applied in a case where the video games at issue were shown to contain protected expression. [Note 6]

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Caswell argues further that, free speech and criminal statutes aside, absolute discretion is vested impermissibly in local licensing authorities under G. L. c. 140, Section 177A. This broad grant of discretion, however, may be limited properly by judicial interpretation. See Fitchburg v. 707 Main Corp., 369 Mass. 748, 752-753 (1976). In Turnpike Amusement Park v. Licensing Comm'n of Cambridge, 343 Mass. 435, 438 (1962), we explained the nature of a local authority's duty in evaluating license applications under G. L. c. 140, Section 177A. At issue in that case was the validity of a policy pronounced by the Cambridge licensing commission that it would not renew or issue licenses for any pinball machines. Id. at 436. We declared that "[t]he statute does not empower local licensing authorities to make such an over-all denial." Id. at 438. We stressed that "[l]ocal authorities may deny a particular license if in their discretion they find that the general good, order and welfare of the community so require. They cannot, however, act in an unreasonable or arbitrary manner and must consider and determine each application '. . . on its own set of facts.' " Id., quoting Mosey Cafe v. Licensing Bd. for Boston, 338 Mass. 199, 205 (1958). Thus, the local licensing authorities may consider "the intended location of the machines, the number of machines in a given area, or any other consideration which [they] might deem pertinent to the issuance of a license." Turnpike Amusement Park, Inc., supra at 437.

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We conclude that G. L. c. 140, Section 177A, as interpreted by us in Turnpike Amusement, is not unconstitutionally vague. The purpose of G. L. c. 140, Section 177A, is "the preservation of public order at public entertainments." Mosey Cafe v. Licensing Bd. for Boston, 338 Mass. 199, 205 (1958). [Note 7] Because Section 177A is concerned with the impact of a particular video game or video game arcade on a particular community and because First Amendment freedoms are not involved in this case, the statute need not specify with great particularity the relevant considerations in evaluating a license application. Rather, the statute does and may confer "upon the licensing authorities a 'quasi judicial authority to determine the facts and to pass upon the application in each instance under the serious sense of responsibility imposed upon them by their official positions and the delicate character of the duty entrusted to them.' " Mosey Cafe, supra, quoting Butler v. East Bridgewater, 330 Mass. 33, 37 (1953). We emphasize that, although the statute does not list particular standards for the local authorities, these authorities may not act arbitrarily or capriciously. Turnpike Amusement Park v. Licensing Comm'n of Cambridge, supra at 438. Mosey Cafe, supra.

4. Caswell also contends that the commission committed a material and substantial error of law in its interpretation and application of G. L. c. 140, Section 177A. Caswell urges that the commission required Caswell to demonstrate that his video game arcade would enhance the city of Brockton, and he argues that this requirement is invalid under the statute. We agree with Caswell that, if the commission applied such a standard, it acted incorrectly. A local licensing authority may not deny an applicant a license for a video game on the

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ground that the city would not be enhanced, benefited, or somehow improved by the availability of the video game. Under our reasoning in Turnpike Amusement Park v. Licensing Comm'n of Cambridge, 343 Mass. 435, 438 (1962), the determination to be made in evaluating an application under G. L. c. 140, Section 177A, is whether the proposed video game will detract from one or more aspects of the community. From the record before us, we cannot conclude that the commission did not deny Caswell's applications on the basis of an enhancement of the community standard. The chairman of the commission clearly indicated that enhancement of the community was a legitimate and essential factor. [Note 8] We cannot determine the extent to which his mistaken interpretation of G. L. c. 140, Section 177A, influenced the commission as a whole. The commission's denial states: "The decision of the Commission was based on the opinion of the members that an arcade at this location would not be in the best interests of the City of Brockton." Although the denial cites concern with "the proximity of Westgate Mall and the public safety problems which might arise therefrom," we are unable to ascertain whether the decision was based substantially on the chairman's incorrect interpretation of Section 177A. In light of the extensive list of rules and regulations proposed by Caswell for his arcade and his willingness to hire his own security workers as well as to contribute to security forces at the nearby mall, we cannot determine that safety concerns actually

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motivated the commission. Therefore, the matter must be reconsidered by the commission and, if the applications are once more denied, a statement of the commission's reasons must be given.

5. Caswell's final contention is that the appropriate standard of review of the denial of an initial license application under G. L. c. 140, Section 177A, is the substantial evidence test. Although we need not reach this issue because of our decision that the case requires clarification by the commission, we nevertheless address it. General Laws c. 140, Section 177A, does not provide for either further administrative review or judicial review of decisions made by the commission. Furthermore, the commission is not a State "agency" within the meaning of the State Administrative Procedure Act, G. L. c. 30A, Section 1 (2), and the provisions of that act, therefore, do not apply. See Saxon Coffee Shop v. Boston Licensing Bd., 380 Mass. 919, 922-924 (1980). Caswell, therefore, properly brought this action in the Superior Court under G. L. c. 249, Section 4, as a civil action in the nature of certiorari. See Saxon Coffee Shop, supra. The appropriate standard of judicial review in a certiorari case such as this must be determined according to "the nature of the action sought to be reviewed." McSweeney v. Town Manager of Lexington, 379 Mass. 794, 800 (1980), quoting Boston Edison Co. v. Boston Redevelopment Auth., 374 Mass. 37, 49 (1977). See also Konstantopoulos v. Whately, 384 Mass. 123, 137 (1981). In this case, we consider whether, as Caswell contends, the substantial evidence test should apply or whether the standard of review should be limited to examining whether the local licensing authority acted arbitrarily or capriciously, abused its discretion, or made an error of law. See McSweeney, supra. In Turnpike Amusement Park v. Licensing Comm'n of Cambridge, 343 Mass. 435, 438 (1962), we indicated that local licensing authorities are vested with discretion in evaluating license applications under G. L. c. 140, Section 177A. We did not resolve, however, whether judicial review of a local licensing authority's actions would be limited to a lesser standard

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of review than the substantial evidence test. In addressing this issue, we note that G. L. c. 140, Section 177A, does not require that a hearing be held by the commission. Compare Saxon Coffee Shop, supra at 924. Furthermore, the statute does not contain narrow and objective criteria to be applied by authorities in evaluating license applications. Compare Fantasy Book Shop v. Boston, 652 F.2d 1115, 1123 (1st Cir. 1981), with McSweeney v. Town Manager of Lexington, 379 Mass. 794, 796-800 (1980). We conclude that, in an action for judicial review of a local licensing authority's denial of an initial application for a license under G. L. c. 140, Section 177A, where First Amendment rights are not involved, [Note 9] the appropriate standard of review is error of law or abuse of discretion, as measured by the "arbitrary or capricious" test.

The summary judgment is reversed, and the case is remanded to the Superior Court, there to be returned to the commission for reconsideration of its decision and, if Caswell's applications are again denied, a statement of the commission's reasons therefor. Thereafter, if necessary, further proceedings consistent with this opinion are to be had in the Superior Court.

So ordered.