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

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.

And that's just in single-player mode.

The expressive potential of video games jumps exponentially when players take interactivity online. Players can cooperate with or compete against friends, acquaintances or strangers. They can create unique characters, build original worlds and tell their own stories in multiplayer online universes with a few or a few thousand of their friends.

Video games, even the violent ones, enable players' free expression, just like musical instruments enable musicians' free expression. No one in the government is qualified to decide which games don't enable free speech, even when that speech comes from a 15-year-old. The courts settled the question of the First Amendment rights of minors long ago. Those rights are so strong that, for example, the Supreme Court ruled that school boards do not have the power to ban books from school libraries, even if students can obtain those books outside of school (Board of Education v. Pico in 1982). In that case, the justices said that "the right to receive ideas is a necessary predicate to the recipient's meaningful exercise of his own rights of speech, press, and political freedom," even when the recipient is a minor.

The people allowed to limit a minor's free speech rights are his parents or guardians. And maybe his grandparents and aunts and uncles. But not Sen. Yee and Gov. Schwarzenegger.

Most developers of video games will admit that we have barely begun to tap their vast potential to enable player creativity and free speech. In this early stage in the history of video games, the range of expression that we provide to players is too limited. We've done a good job of creating imaginative ways to attack our imaginary enemies, but we have not done nearly as thorough a job exploring all the other forms of human (and nonhuman) interaction.

Fortunately, many of the best developers are tackling new ways to increase players' in-game actions. I've seen some amazing early work in this field, from the biggest video game companies right down to one-person indie developers.

For example, the seemingly simple but emotionally complex online game "Darfur Is Dying" lets the player try to survive in a refugee camp without being killed by militias. "Infamous 2" promises a much richer, open-ended world to help or harm. In "Epic Mickey," Mickey Mouse will have the ability to misbehave.

One of my current projects is a game system that lets players shape and reshape the moral and spiritual development of the game world and the people in it by their actions and alliances.

If California's law is upheld, it is likely that far more onerous measures will appear all over the country. Some stores may stop carrying Mature-rated games. Game publishers might be afraid to finance them. Developers would not know how to avoid triggering censorship because even the creators of such laws don't seem to know. The lawmakers won't tell us their criteria, and their lawyers have refused to reveal which existing games would be covered, even when asked in court.

Such censorship is not only dangerous, it's completely unnecessary. More than 80 scholars and researchers from schools such as George Mason University and Harvard Medical School have written an extensive friend-of-the-court brief in opposition to the law, noting that California failed to produce any real evidence showing that video games cause psychological harm to minors. And even if there was harm, the law's supporters have not shown that the statute could alleviate it.

The game development community has worked hard on creating a rating system that clearly discloses games' content. Even our critics, such as the Federal Trade Commission, have praised our efforts. The FTC's own survey shows that 87 percent of parents are satisfied with the rating system.

Parents have good reason to be concerned about their children's media diet and to ask what possible good can come from blowing out the brains of a character in a game. Make-believe violence appears to have many benefits for minors, such as relieving stress, releasing anger and helping children cope with difficult feelings such as powerlessness and fear of real violence. A recent Texas A&M International study shows that violent games could actually reduce violent tendencies and could be used as a therapy tool for teens and young adults.

There is no small irony that the man helping to spearhead the charge against violent video games is Schwarzenegger, the Terminator himself. He, more than anyone, should understand the thrill of a good fake explosion.

Even when video games contain graphic violence, and even when the players are minors whose parents let them play games with violence, picking up that game controller is a form of expression, and it should be free.


Daniel Greenberg is a Washington-based video game writer and designer. He chairs the anti-censorship and social issues committee of the International Game Developers Association.

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