Censorship. Just say that word in front of hard core gamers, particularly on a forum which grants anonymity, and you’ll likely get a stream of profanity laden rants against “fascists” and “Christians” wiping their collective asses with the First Amendment. Indeed, with every new violent game, whether the game is a great one or a repulsively stupid one, the back and forth is largely the same. What gets lost in the discussions of censorship, the Entertainment Software Rating Board (ESRB), and fragile young minds is what the law and the courts have come to decide about the rapidly growing video games industry. This column will attempt to address these issues by examining case law and legal opinion on video games and the government’s power to regulate and censor them.
ARE VIDEO GAMES PROTECTED BY THE FIRST AMENDMENT?
What well intentioned, but usually ill informed, video game advocates often assume is that video games are constitutionally protected free speech. While there can be no doubt that video games are speech, the Supreme Court has stated that not all speech is constitutionally protected.[1] The early years of video games were rife with decisions that equated the rather primitive games of the time equalto pinball machines and board games, which do not receive First Amendment protection.”[2]
This would change in the last decade as the level of interactivity and graphics increased. The courts would address these questions most prominently in the case American Amusement Machine Association v. Kendrick.[3] In AAMA, the plaintiffs, the creators of several arcade games, sued to prevent the enforcement of an Indianapolis ordinance that forbade an unaccompanied minor to enter an arcade with five or more machines that were deemed “harmful to minors."
The court reasoned that recognized forms of free speech, like literature, have long had violence as a central theme, whether it was Homer’s Odyssey, Shelley’s Frankenstein, or Stoker’s Dracula. Video games with violent story lines and themes, therefore, should not be held to a different standard than works of literature. Additionally, it rejected that video games should be held to a different standard because of their interactivity.
All literature … is interactive; the better it is, the more interactive. Literature when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader's own.[4]
The court went on to describe how the arcade version of House of the Dead echoed “age-old themes of literature” including “self-defense, protection of others, dread of the ‘undead,’ [and] fighting against overwhelming odds.” [5] Why, then, should House of the Dead be afforded less protection than books or movies? The court couldn’t find a reason and sided with the plaintiffs, preventing the enforcement of the ordinance.
The decision in AAMA would later be expanded in Interactive Digital Software Association v. St. Louis County [6] which explicitly stated that “the first amendment shields video games as they would [paintings, poems, and music],” and that “[the court] is obliged to recognize that violent video games are as much entitled to the protection of free speech as the best of literature.” [7]
[1] As Justice Oliver Wendell Holmes famously stated, “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” Schenck v. United States, 249 U.S. 47, 52 (1919)
[4] Id. at 577
[5] Id. at 577-578
[7] Id. at 957-958
Darke
said:
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Great feature, haven't seen one on the subject of Obscenity that has such comprehensive sources and a strong point. Hope we can see more features by Nikhil Baliga! |
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