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Michigan State Professor Argues Against Free Speech for Videogames |
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Professor Kevin W. Saunders of the Michigan State University College of Law, has just published a paper that makes three arguments: 1) Violent videogames cause such psychological harm that regulations against them can meet strict scrutiny standards; 2) Violent videogames are obscene and thus exempt from First Amendment concerns; and, 3) Videogames are not protected by the First Amendment (Regulating Youth Access to Violent Video Games: Three Responses to First Amendment Concerns).
While I was not particularly surprised to see the first two arguments being made in an article justifying regulation of videogames, I was somewhat surprised to see the third. I thought we were past the point were videogames were not seen as expression, the outlying (and overturned) decision of Judge Limbaugh in Interactive Digital Software Ass'n v. St. Louis County [PDF] notwithstanding. Yet here we have an academic research paper offering support for Limbaugh's decision which found that videogames did not have enough expression to receive First Amendment protection.
Of course, Saunders realizes that he has a problem with the fact that many games now clearly have a narrative structure and communicate a message (not to dismiss that even early videogames like Galaga or PacMan communicate simple stories). As he acknowledges, the First Amendment does not take kindly to people making distinctions within protected media. Who is to say that any particular movie is too simplistic to be covered by the First Amdendment? Once you grant that some videogames clearly communicate a message, you have to base your opposition to their inclusion under the First Amendment umbrella on some other factor.
Apparently, it is the interactivity of a game that is non-communicative and thus may be regulated by the state without implicating the First Amdendment - "The only personal interactions are simply moves of the game intended to win, rather than to convey any message." The article goes on to argue that:
The aspects of the code that allow for human participation in the game, however, are a different story. That part of the code is not read or viewed by the player and conveys no information to him or her. Rather, that part of the code is functional. It causes the program to skip to a particular spot to continue the action, depending on what the action of the player was. Arguably, skipping to a spot in the program could also be protected. If a video game did not show the same story each time a quarter was inserted but randomly chose different options at various points in the story, that is no less the conveyance of expression to a human. But, the player’s election of the next part of the story is not communication to anyone. There is, at that time, no other human involved, and the player in firing the weapon in a first person shooter game is no more speaking, in a first amendment sense, than is a computer operator who inserts a disk to run any other program.
Somebody get this professor a copy of Knights of the Old Republic, stat! KotOR is a first person narrative set in the Star Wars universe. Many have found the game to have a more compelling narrative than Lucas' most recent films in many people's opinions. The great element of the game is the way it handles player decisions, allowing them to pursue the dark side or light side of "the force." It is precisely the choice to shoot, or not to shoot, or what to shoot that gives KotOR its compelling multi-pathed narrative structure.
In any case, the professor's argument fails by its own logic. The analogy Saunders uses is of a computer user inserting a disk into a computer to run a program. Arguably, government could regulate the insertion of computer disks ... but even that is protected by the First Amendment. Clearly, many, if not the vast majority, of the programs and other data on a computer disk are protected by the First Amendment. Consequently, any hypothetical regulation of computer disk insertion would most likely have to meet the First Amendment standards for time, place and manner restrictions.
Saunders next goes on to confuse the meaning of "function" in order to get videogames out from under the First Amendment umbrella.
The firing of a weapon in a first person shooter game is an act that has a function rather than one that serves to communicate. As long as the state’s interest is in limiting the act rather than controlling the story, the limit should not violate the First Amendment.
As long as the state does not ban children from watching the story presented by the video game, its focus would seem to be on an act that is not a part of any human to human communication. Any second amendment problems aside, a ban on children shooting on a target range would not raise first amendment problems. That should be true even if the operator gave away books for prize winning performances. The same should hold for a video shooting game, where the prize is the continuation of the story in a particular direction. As long as it is the shooting activity that gives rise to the concern and is the sole limitation, rather than the content of the story, the First Amendment should not bar the regulation of access by children to first person shooter games.
It may seem strange to Saunders, but you know, when you shoot a gun in a first person shooter game you aren't actually firing a weapon. The "function" isn't shooting the virtual gun. Saunders is trying to confuse the issue to make it seem as if shooting in a virtual world is subject to regulation the same as shooting in the physical world, but it's not.
What exactly is the function at issue here? In videogames, the same "function" that takes you to the next chapter of a "choose your own adventure" novel is the same "function" as shooting in an FPS game. The "function" is called "pressing a key" or a "mouseclick." Saunders would have us believe that the state has in interest in regulating mouseclicks. Basically, he is complaining about how the actual function (a mouseclick) is represented in cyberspace. If you represent a mouseclick with the animation of a page turning in a book, apparently that is okay. If you represent a mouseclick with the sound and image of a gunshot, that is not okay and is subject to government regulation. But what the government is doing in such regulations is not regulating the "function" but regulating how the results of that function are communicated to the user.
Government can make such distinctions, but government must do so within the constraints of the First Amendment.
Finally, after all the proclaiming that videogames do not convey messages or that such games can be regulated as to "function", Saunders includes the following paragraph in his conclusion:
Resistance Records, the label that produces musical groups such as RaHoWa (Racial Holy War), Nordic Thunder, and Angry Aryans and such titles as “Racially Motivated Violence” and “Race Riot,” now offers a video game titled “Ethnic Cleansing.” The player, after choosing to play the role of either a skinhead or member of the KKK, moves through the streets of a virtual city killing gangs of “predatory sub-humans,” Black and Hispanic characters, eventually entering the subways to attack the “sub-human” Jewish masters, end their plans for world domination, and save the White race, and this is not the only game of its ilk.
Correct me if I'm wrong, but it seem as if the whole point of this example would be to show that videogames do convey particular messages. The message in this case is abhorrent, but it is a message nonetheless and fully protected by the First Amdendment. Heck, the title of the citation Saunders footnotes invalidates his argument that videogames don't convey particular messages: "Racist Groups Using Computer Gaming to Promote Violence Against Blacks, Latinos and Jews." We may not like the message this game promotes, but we have to defend the right of these groups to communicate it, regardless of the medium they choose to spread the message.
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Maybe Violent Video Games Are Good for our Kids (Score: 0) by Anonymous on Tuesday, October 07 @ 17:02:59 EDT | Homicide Trends in the U.S. [www.ojp.usdoj.gov]
Since 1995, Homicide rates amongst young people has plummeted, and the overall homicide rate has plummeted to a rate about equal to that of the 50's and 60's.
It's funny, because that's the same time frame when realisticly violent video games started becoming ubiquitous.
Could it be that violent video games help people take aggression out on thier computers than in real life?
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Re: Michigan State Professor Argues Against Free Speech for Videogames (Score: 0) by Anonymous on Wednesday, October 08 @ 11:16:50 EDT | Wouldn't the act of turning a (real) page be equivalent to a mouseclick or depression of a joystick button?
I can also see the potential outcome of this - I collect a dollar from each underage kid that wants to exercise the limits of their Consititutional rights by watching me play Half Life 2. |
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