Why the Supreme Court should rule that violent video games are free speech

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By Daniel Greenberg
Sunday, October 31, 2010; 12:00 AM

On Election Day, everyone in Washington will be focused on the polls. Everyone except the Supreme Court justices. They'll be busy with video games.

Tuesday is the day that the court has agreed to hear Schwarzenegger v. EMA, a case in which the state of California says it has the power to regulate the sale of violent video games to minors - in essence, to strip First Amendment free speech protection from video games that "lack serious literary, artistic, political, or scientific value for minors."

Since I express myself through the creation of video games, including violent ones, I'd like to know how government bureaucrats are supposed to divine the artistic value that a video game has for a 17-year-old. The man who spearheaded California's law, state Sen. Leland Yee, has not explained that. We've had no more clarity from Gov. Arnold Schwarzenegger, who signed the bill into law.

Yee argues in his friend-of-the-court brief that since the government can "prohibit the sale of alcohol, tobacco, firearms, driver's licenses and pornography to minors," then "that same reasoning applies in the foundation and enactment" of his law restricting video games.

As a game developer, I am disheartened and a little perplexed to see my art and passion lumped in with cigarettes and booze.

The U.S. Court of Appeals struck down the law as unconstitutional, just as other U.S. courts have struck down similar anti-video-game measures. California appealed to the Supreme Court, which surprisingly agreed to reconsider the lower court's rejection of the law.

So while everyone else is celebrating their constitutional right to vote, the Supreme Court will ask: Does the First Amendment bar a state from restricting the sale of violent video games to minors?

It seems clear to me that violent video games deserve at least as much constitutional protection as other forms of media that would not be restricted under this law, such as violent books and violent movies. Books and movies enable free expression principally for their authors and makers. But video games do more than enable the free speech rights of video game developers. Games - even those incorporating violence - enable a whole new medium of expression for players.

Gameplay is a dialogue between a player and a game. Reading a book or watching a film can also be considered a dialogue, but the ability of the audience to respond is far more limited. Books and movies rarely alter their course based on the emotional reaction of the audience. (One exception would be those old Choose Your Own Adventure-type books, some of which I wrote before I started working on video games.)

The exploration and self-discovery available through books and movies is magnified in video games by the power of interactivity.

A new generation of games features real changes in the story based on the morality of a player's decisions. Mature-rated games such as "BioShock," "Fable 2" and "Fallout 3" go far beyond allowing players to engage in imaginary violent acts; they also give players meaningful consequences for the choices that they make. In "BioShock," the player meets genetically modified people who have been victimized by a mad ideology. The player can help the unfortunates or exploit them for genetic resources. The game's ending changes radically depending on the player's actions. In "Fallout 3," players can be kind to people or mistreat them, and the people will respond in kind. In "Fable 2," the player must make a painful choice to save his family from death or save thousands of innocent people - but not both.

In games such as these, gameplay becomes a powerful meditation on the nature of violence and the context in which it occurs. Some of the most thought-provoking game design is currently in Mature-rated games (similar to R-rated movies). This is because, in order to have a truly meaningful moral choice, the player must be allowed to make an immoral choice and live with the consequences.


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