Playing With Free Speech: Video Games Take on the First Amendment
In the early 1980's, courts began wrestling with the issue of whether video games were forms of expression entitled to First Amendment protection. Many believe that video games have reached a level of sophistication that entitles them to serious consideration, equal to the cultural status accorded film and television. However, after a surprising ruling by a Missouri court, the issue has become more complicated than it first seemed.

By Juan Antonio Pastor

In "Grand Theft Auto: Vice City," the action takes place in the underworld of 1980's Miami.

Video games have become a strong cultural force, a medium that entertains millions around the world and brings in a reported 8 billion a year in revenue for its creators. For some, however, it is a cultural poison, one that inspires violence, misogyny, and disrespect for all types of authority. After the 1999 killings at Columbine High School, many journalists, academics, pundits, and groups like the Citizens for Peace and Respect, were quick to blame video games as the cause of this regrettable event; they argued that playing video games of violent nature directly leads to violent behavior in real life.

As a result, a movement to censor and control such video games has erupted in America. In April, 2002, Judge Stephen N. Limbaugh Sr., Chief Justice of the U.S. District Court of Missouri, ruled that video games are not protected by the First Amendment, and can thus be censored.

This chilling proclamation has been labeled by journalists and gamers alike as the "shot heard 'round the Net." The issue is further complicated because video games are seen by many as a sub-legitimate artistic and creative medium; typically, those who are not familiar with digital gaming are quick to dismiss video games as nothing more than child's play at best, and as child's play with a handgun, at worst. Judge Limbaugh, in a 26-page memo he wrote to support his ruling, contends "there is no conveyance of ideas, expression, or anything else that could possibly amount to speech" in video games. Wrote Limbaugh, "Video games have more in common with board games and sports than with motion pictures."

Limbaugh's ruling came about after the Interactive Digital Software Association (ISDA), headed by Douglas Lowenstein, had asked for a summary dismissal of a St. Louis ordinance that requires parental consent before children under 17 can buy or play sexually explicit video games. The ISDA's argument, plain and simple, was that the ordinance stood in violation of the First Amendment. Parent's groups, in turn, blasted the ISDA. Democratic councilman and bill sponsor Jeff Wagener, in an article for the Jefferson City News Tribune, stated that "minors do not have a constitutional right to have explicit violent games available to them." He continued, "I think that's bogus and that this comes down to money. ... This lawsuit, while it may talk about constitutional rights, is nothing more than business."

Judge Limbaugh's ruling surprised many in the gaming community, not only because of the antagonism it displayed when denying the ISDA's motion, but also because the Judge "went beyond the call of duty" by "unnecessarily" ruling that video games are not free speech, in the opinion of gamer and webblogger Atticus XI, in an August 2000 entry to his online diary Evil Avatar. Gamers and their allies were especially stunned that the judge gave his ruling after reviewing only four games, which the county had submitted as evidence: "Mortal Kombat," "Fear Effect," "DOOM," and what the judge called "The Resident of Evil Creek" -a game that is actually just titled "Resident Evil."

From his ruling, Limbaugh appears to believe that no amount of contextual information or additional narrative in a game is enough to make it a work of art or expression worthy of the label "free speech." To gamers and their legal and corporate advocates, this is a "slippery slope" argument. Not only does it ignore the cultural value of video games in the digital age, they maintain, but it poses a threat to democracy by denying First Amendment protection to one of the most important, up-and-coming, and powerful mediums.

One of the earliest games to cause a stir was "Mortal Kombat." By today's standards, this game is considered to be very tame.

This particular ruling has resulted in a flurry of debate both in cyberspace and in traditional media regarding the value and importance of the gaming medium. Henry Jenkins, director of MIT's Comparative Media Studies program, argues in an article published for Salon.com on February 2002 that Judge Limbaugh's decision "is remarkably ill-informed. Imagine if I took a look at four books, all within the same genre, to determine whether literature was worthy of Fist Amendment protection... The Judge even manages to misidentify or mangle the titles he cites, suggesting that he didn't look at them very closely."

The ruling has helped lend credibility to those who argue that there is a direct connection between violent video games and real violence. In two studies appearing in the April, 23, 2000 issue of the American Psychological Association's (APA) Journal of Personality and Social Psychology, there is an indication that violent video games may be more harmful than violent television shows and movies "because they are interactive, very engrossing, and require the player to identify with the aggressor," say the researchers. Because of this, a law is about to be passed in Indiana that restricts the sale and access of coin-operated violent video games to children.

Many have flagged this type of legislation as a troubling trend. James Wagner Au, journalist for Salon.com, points out that there is a danger in censoring video games that are deemed inappropriate for the public "because it sets a very bad precedent, restricting the future development of games that might have meaningful, provocative content." Henry Jenkins agrees. He strongly feels that "the time has come to treat computer and video games as forms of popular culture worthy of serious consideration and criticism alongside film and television."

One of the main contentions in the 26-page memo that Judge Limbaugh wrote to support his ruling is that all video games fall into the same category. He argues that even though some games are more technologically advanced than others, "technological advancement alone does not impart First Amendment status to what is an otherwise unprotected game."

A far cry from the days of Pong, "Grand Theft Auto III" has its fair share of sex and violence.

However, the medium is a diverse, varied one. Many of the simpler games, such as computer game versions of chess and solitaire, are probably not speech, and never will be. Yet, the more detailed a game is, in terms of gameplay, design and storyline, the more likely it will have the qualities that are undeniably speech. In Grand Theft Auto III, for example, the player assumes the role of a cold-hearted street thug, making his way up the ladder of underworld gangs and organized crime. The games offer a non-linear story line in which missions are completed in Liberty City, and urban backdrop made up of three different districts. In it, there are busy streets filled with self-involved pedestrians, as well as ambulances, SUV's, and cop cars, all there for the taking.

During the 1990's, video games exploded as a medium and reached a level of complexity and sophistication never seen before thanks to new technological developments. "The computer and video game industry is in a transitional state," says MIT's Henry Jenkins, "finding their vocabulary, beginning to develop more aesthetic and thematic ambition. It is at such moments of transition that the First Amendment protections are perhaps most important." Moreover, during the 90's and at the beginning of this decade, many video games, such as "Mortal Kombat," "Tomb Raider," "Final Fantasy," and "Mario Brothers," were turned into feature films; concurrently, many films and television shows have been turned into video and computer games, blurring the lines between these mediums. Even big-name pop stars like Britney Spears are increasingly getting involved in the creation of games, further legitimizing them and bringing them into the mainstream.

Movie poster for "Lara Croft: Tomb Raider," based on the popular video and computer game of the same name.

Even so, many seem to argue that the gaming medium is an inherently violent one, designed specifically for young males. Psychologists Craig A. Anderson, PhD, and Karen E. Dill, PhD, who where behind the studies published in the APA journal, point out that "young men who are habitually aggressive are especially drawn and vulnerable to the aggression-enhancing effects of violent video games." This, however, seems to imply that as a communicative form, video games can only rise to the level of exploitative violence. "It is certainly possible for video games to convey political expression, criticism, and social awareness," says Jenkins. Of Judge Limbaugh's ruling, he says, "He was simply off the mark and is likely to be overturned."

Brenda Laurel, founder of Purple Moon, a now-defunct transmedia company directed at girls and dedicated to gender research in new media, points that "while there are examples of racist and sexist overtones in some games, there is nothing intrinsically 'male' about the medium." She admits that at this point in time, most content is directed at young men, but that "ample opportunities exist for the development of content directed at women, girls, elders, and general audiences." She cautions not to confuse the medium with a particular piece of content; while she finds some violent and sexist games offensive, like the recently released "BMX XXX" and "Grand Theft Auto," she says that censoring any of them would be "un-American." In fact, she believes that, while there seems to be a vacuum right now, the medium has the potential to offer much in terms of education and awareness.

A scene from "BMX XXX," released this month, in which topless female characters perform stunts on bicycles.

Much of the controversy that has erupted in the last few years has centered on "Grand Theft Auto III," a game released for play with Sony's Playstation 2. In it, players are rewarded with game points for killing cops, trafficking drugs, and picking up prostitutes and killing them afterwards so as not to pay them for their services. The game has been blasted by many as sexist, misogynist, ultra-violent, and downright evil. It was banned from sale in Australia, labeled with a "dishonorable mention" on the annual Video Game and Violence Report card, and disdained by some video game industry followers and players as an unwelcome plunge to new depths. The game has gotten a rating of "M," for its violence and strong sexuality, which means that anyone under seventeen cannot buy it. Because of the M rating and the unprecedented amount of controversy, many retail outlets will not even display the game in-store.

The game, however, has its devout fans and followers. Lisa Shea, a 33-year-old mother of one and a computer/console gaming host is a big fan of the game and says that many people are missing the point. "'Grand Theft Auto III' is a coherent satire on contemporary American life," she points out. "The 'messages' in the game, if you want to call them that, are as diverse and varied as those in many films and television programs." Mark Sumalde, a 23-year-old fan typical of the gaming demographic, attributes the game's popularity to the fact that it is totally unique. Says Sumalde, "It's a shooting game, a driving game and an adventure game," rolled into one.

Henry Jenkins seems to agree with the fans. "One of the signs that games are maturing as a medium as that we now have artists who want to use games to offer critical perspectives on contemporary life," he says. "It's a step forward any time games are about something more than blowing up things." While "Grand Theft Auto" might be dismissed by many critics as nothing more than gratuitous sex and violence, other notable games, such as "State of Emergency," "Majestic," "Final Fantasy," and "Deus Ex," point to a high level of social and political sophistication.

James Wagner Au goes as far as to say that "socially minded films and television programs can only dramatize their politics, but we now have a medium where you can interact with them, as an engaged participant. Indeed, the revolution will not be televised; instead, it will come with a game pad."

In Electronic Arts' "Majestic," the player must attempt to unearth a decades-old conspiracy through clues found in e-mails, instant messages and newspaper articles. At one point, the player receives a fax detailing a character's background, which reveals that he was the founder of a crack cocaine distribution network in the 80's, set up to funnel drug profits to finance the Contra rebellion in Nicaragua. Au, who was involved in making the game and actually wrote the fax mentioned above, says that his intentions were to "dramatize the controversial but important allegations that the civil war against Nicaragua's Sandinista government was partially financed by crack dealing in Los Angeles."

Similar examples of gameplay designed to function as social commentary are evident in "State of Emergency." Au points out that "contrary to Limbaugh's views, the expressions are not inconsequential, but are inextricably woven into the experience of the game itself." The purpose of this specific game is to overthrow a giant multinational corporation that now dominates the entire country. Set in the near future, the only glimmer of resistance comes from the Freedom Movement, which mirrors the anti-globalization protests in Seattle and Genoa. In the game, the player is awarded game points for trashing stores, creating mayhem, and killing the corporation's security guards.

A scene from "State of Emergency" echoes the anti-globalization protests in Seattle and Genoa.

An anarchist involved in the actual protests in Seattle and Genoa, with the pseudonym "Luther Blisset," posted a message in an Internet chat room responding positively to the game: "Maybe normal video game kids will end up playing the game and maybe even joining us." Henry Jenkins points out, however, that for every game that questions capitalism, there are hundreds out there "which encourage us to fantasize about becoming a tycoon." Still, he says, "if the game encourages kids to learn more about one of the defining political debates of our times, the game will have served a useful purpose."

While in the 1980's Judge Limbaugh's ruling would not have caused much of a stir, today, it flies in the face of the deeply held beliefs of video game creators and gamers alike by ignoring and de-legitimizing the progress that this medium has made commercially, technologically, artistically, and socially in the past decade. Not surprisingly, much of the criticism of the digital gaming medium comes from those who have never played the games and are unfamiliar with the medium itself. Atticus XI contends that video games are "electronic storybooks," elevated beyond film or prose and have become "a heightened form of free speech." Whether this is true or not, it seems that the courts will still have to decide. As a result of the ruling, the ISDA has decided to appeal, and it is expected that the ruling will be overturned. We'll soon find out if the courts consider this is a true and legitimate medium, one that conveys ideas, expressions, philosophies, and emotions. As far as gamers go, we know how they feel.

Juan Antonio Pastor is the Managing Editor of ReadMe 3 and a senior at New York University, where he is majoring in broadcast journalism.

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