Videogames have Constitutional Protection! Where do we go from here?


Today, on on Monday, June 27th, 2011, the United States Supreme Court stood b y the First Amendment’s provision of free speech in the case of Brown vs. BMA, or “California vs. Videogames, as it has been called by the videogame community, where the Supreme Court Justices decided 7 to 2 that videogames are a form of speech protected under the constitution. Siding with videogames, Justice Scalia stated that “the basic principles of freedom of speech  [. . .]  do not vary’ with a new and different communication medium.” I, and most of us, would agree. Many videogame publications have already published volumes of texts explaining how, obviously, videogames should be afforded the same rights as film and books – and mostly I concur. I won’t go into long comments about how this was a historic win for videogames or even go into a re-statement of the arguments made in favor of videogames, as I think the videogame community has addressed the first point at length and the academic community [1] has thoroughly explained the second point to the satisfaction of all but the most hardcore denier [2]. Instead, I would like to comment on the statements made by Justices Alito and Breyer and the concerns they raises, which have been labeled by the gaming community as misguided hogwash, and why I think not only why both Justices were correct in raising those concerns, but why I think the issue he raises should be further explored. These concerns, however, not by lawyers or policy makers ignorant of the medium, but by scholars interested in digital media research, videogame designers, and educated gamers. I will then propose what is perhaps the most significant question we [3] should be asking ourselves right now.

Justice Alito commented regarding videogames and the potential of videogames that “if the technological characteristics of the sophisticated games that are likely to be available in the near future are combined with the characteristics of the most violent games already marketed, the result will be games that allow troubled teens to experience in an extraordinarily personal and vivid way what it would be like to carry out unspeakable acts of violence.” I agree with Justice Alito’s comments – indeed, just as videogames have the potential of becoming wonderful classroom tools and the most significant and powerful medium of communication humanity has ever seen, they also have the potential to become immersive simulators that allow for experiencing violence on a massive virtual scale. At this point I would remind my reader that just as there was a William Shakespeare and a Miguel de Cervantes, both of whom created literary masterpieces that transcended time and space to lift humanity to a higher intellectual and spiritual level, there was a Joseph Goebbles and a Rangar Redbeard, both of whom created manuscripts of questionable character. The same is true of videogames. Videogame designers can create wonderful works of art that embody poetic values and help enlighten the human souls (Flower comes to mind) just as they can create open worlds where the player can wantonly murder bystanders and where there is no clear goal or purpose beyond gratification through violence. I can’t think of a single title right now that fits this later description – even the GTA series gives players a narrative whose purpose is to inform the player, introduce the player to a new perspective, and question the self through morality. Still, there is a possibility that sometime in the future a game designer might create a “murder simulation” in the style of Jack Thompson’s imagination – and to that I say I’m looking forward to it. This will give troubled teens a chance to see what it’s like to go on a rampage in the virtual world and reconsider when they are faced with the simulated horror, but it will also give the everyday stressed out individual a much-needed chance to blow off steam.

More importantly, Justice Breyer echoed California’s argument that “what sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting a sale to that 13­ year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her? What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman-bound, gagged, tortured, and killed-is also topless?” I agree with Justice Breyer – it seems hypocritical to protect children from a playboy magazine and allow them to play a videogame where the player can gag and rape a prostitute. However, there are two flaws with this train of thought – right now there is no single videogame [4] whose purpose is to rape a gagged woman. Secondly, even if these videogames existed, they would be rated M by the ESRB, and thus, would not be sold at retail stores or to minors online. Finally, let’s consider Playboy Magazine (or the nude images magazine of your choice). Selling a magazine with nudity to a minor is illegal, but selling a magazine about cars, sports, or music to a minor is not illegal. Selling a newspaper, many of which contain violent images at times, to a minor is not illegal. When applied to movies, allowing a minor into Narnia or Pirates of the Caribbean, both of which have violent scenes, is not illegal. Why, then, would it be illegal to sell Street Fighter IV to a minor? If any legislation banning the sale of videogames to minors should be banned, it should be phrased in a way where only the sale of videogames with explicit sexual content AND where the main purpose of the game is to obtain said virtual sex imagery would be banned from minors. In short, it would be illegal to sell sex sims and hentai games to minors. It might be that the previous law that forbids the sale of pornography to minors applies to hentai videogames as it does to sex magazines just as constitutional rights protect videogames as well as any medium, but I’m not a law scholar so don’t take my word for it.

The most important question that we should be asking ourselves right now is something along the lines of our title: “videogames have first amendment protection, now what?” Where do we, game designers, game scholars, and game enthusiasts, move to now that our 25 year old dream of being recognized by “the credible community at large” has been achieved? I believe that we can find the answer to that question in Justice Scalia’s comments: “reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat. But these cultural and intellectual differences are not constitutional.” Justice Scalia hit the nail in the head, and this comment, I think, should guide our path for the next few years.

There will always be another Unreal clone. There will always be a new Madden. There will always be a new God of War, a new Mortal Kombat, and a new Wii Sports. The question is, is there any reason for us not to have a higher, more “cultured” layer of videogame? Is there any reason for Flower or Shadow of the Colossus to not exist? I believe that now that “we” have been recognized as a legit form of expression, we should strive to become a legit form of art. This will not happen game designers making endless remakes of Unreal, but instead going past the boundaries of gaming and creating masterpieces that tickle the mind and provoke our emotions. As most of the gaming community knows, Ebert is wrong – videogames are art. But we need to raise the level and create more “high” art, games that are fun to play but have something to say. Ayn Rand’s works have already been projected in Bioshock, Wordsworth’s poetry in Flower, and even our societal concerns have been explored in Fallout III. With aural masterpieces like those created for Symphony of the Night and various Final Fantasy titles, it would be tough to argue that creators of videogame music, just as it would be tough to argue that Okami’s visuals are not art. Let us strive, then to create more titles like these – titles that assault the senses and awaken emotions, titles that explore society and make statements. Let us make more games that explore human relationships. Let us make more games that make us question the self and wonder about morality. And please, let’s stop making so-called AAA titles that are nothing more than new skins over old action / fps games and let’s stop making variations of Wii Sports. Let’s move on to a bright future where, as Gee suggested would happen, videogames will stand in classrooms and libraries next to literary masterpieces. Let’s attempt to create the videogame equivalent of War and Piece or Clarissa. Personally, I’m psyched to see who videogame’s first Shakespeare will be.

But until then, excuse me while I go make yet another fan tribute of Super Mario and another cliché-ridden JRPG.

[1] Gee’s “What videogames have to teach us about literacy”, Johnson’s “What every parent should know about videogames”, and many other texts.

[2] Jack Thompson et. al.

[3] Anyone who thinks about videogames.

[4] I should make the distinction here: I’m talking about contemporary mainstream games in America. I am aware that there were “porn games” during the late 1970s and the early 1980s where the player would take control of some oddly-shaped sprite and he would attempt to “rape” another oddly shaped sprite (Custer’s Revenge comes to mind) and that there are many dating sims and hentai games (predominantly in Japan) where the purpose is to date / have sex with the game’s characters. As I have stated, these games are not for sale in retailers and can only be acquired through online purchases with credit cards which are not granted to minors. Furthermore, I believe that the sales of these games are already illegal to minors, but don’t quote me on that.

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About Quijano

Johansen Quijano is a professor of English in The University of Texas at Arlington, where he is currently pursuing a Ph.D. in English. He holds a Bachelor’s Degree in the Teaching of English to Speakers of Other Languages (TESOL), a Master’s Degree in Curriculum and Development focusing on TESOL, and a Master’s Degree in English Literature. He has published and presented on a variety of topics including video game studies, popular culture studies, education, teaching methodology, language acquisition, romantic poetry, and victorian literature. His research interests include the above-mentioned topics, narrative, interactivity, simulation, new media in general, and 18th century literature. He also enjoys creative writing (fiction, historical fiction, and poetry), and reading all kinds of epic literary works - from the Epic Poem of Gilgamesh to Robert Jordan’s Wheel of Time series.

Posted on June 28, 2011, in Video Game Commentary and tagged , , , . Bookmark the permalink. Leave a comment.

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