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I remember the day my father brought home our first Atari game system. It wasn’t long before we were engaged in furious gunfights, as stick-figure cowboys hurled pixel blocks at each other. I could not know then that two decades later it would be possible to engage in immersive, first-person firefights with real people from around the world.

Games so simple they can now be played online in Web browsers or on the tiny screen of your wireless phone, games with file sizes so comparatively small that a handheld plastic game unit can hold a library of hundreds of “classic” video games, have been supplanted by serious “games” whose complex graphics and high-fidelity sound border on virtual reality. To examine the history and development of video games is to be at once nostalgic and awed, as the now-quaint pastimes of thirtysomethings’ childhoods have become the juggernaut of an interactive entertainment industry. That industry is poised to overtake worldwide music sales through 2011, worth nearly 50 billion projected dollars.

Your government can’t have that.

As PCWorld reported Tuesday, the United States Supreme Court is poised to rule on whether your government can “protect” you – or “the children,” who are so often invoked as a category to histrionics, hand-wringing and the strains of tiny violins – from “violence” in video games. As J.R. Raphael wrote:

According to [the wording of a California law forbidding sales of "violent" video games to minors], a violent video game would be defined as one “in which the range of options available to a player includes killing, maiming, dismembering, or sexually assaulting an image of a human being” in a manner that’s “patently offensive,” appeals to a person’s “deviant or morbid interests,” and lacks “serious literary, artistic, political, or scientific value.” …

Even if you accept the “video games are different” argument, opening the door to government-controlled content regulation is asking for trouble. Do we want to make the First Amendment a medium-specific form of protection? … If this law is green-lighted, we’d better brace ourselves for an awful lot of asterisks under America’s “free speech” header.

Raphael correctly points out that this isn’t about video games at all, but rather the nature of freedom of speech. What is a video game? It is, when it is sold for profit, arguably a form of commercial speech. In and of itself it is also (and primarily) an artistic expression. Regardless of whether you consider it so, the average video game (particularly today) is the product of a tremendous amount of artistic input and merit, from the design of its characters to its music and voice-acting to its often cinematic interactivity, its pacing and its overall presentation. All of this is true before we even begin to consider the hours of effort in coding, debugging, play testing and implementation of the game’s software.

Whether that artistic merit and those hundreds (if not thousands) of hours of effort produce a serene, puzzle-solving, picturesque classic (remember “Myst”?), a light-hearted adventure series (the name “Monkey Island” comes to mind), or a visceral and blood-soaked survival-horror game in which players shoot zombies in the head (or become zombies themselves), there is no denying the tremendous industry and art involved in such a production. How is it, then, that we are repeatedly told that blasphemous, offensive and outrageous “art” (a crucifix submerged in urine, the Virgin Mary rendered in dung, dead animals sawed in half, morbidly nude statues of Paris Hilton and other abominations that have figured in news reports over the years) is protected free speech … and yet far less offensive but “violent” video games must be rebuked, restricted and regulated?

Worryingly, Businessweek‘s Jesse Holland says the Supreme Court has “expressed sympathy” for the California law. Holland did note, however, that “Antonin Scalia, Ruth Bader Ginsburg and Anthony Kennedy … noted that entertainment forms like comic books, movies, rap music and even children’s fairy tales can also be violent but are not regulated by the state.” Those justices, Holland reports, have said the California law might be too vaguely worded to pass constitutional muster. The key to the justices’ debate seems to be whether the law draws “sensible distinctions” among the forms of entertainment it seeks to regulate.

The push to regulate vaguely defined “violence” in video games, to control, subjectively, the content delivered to “the children,” sets the precedent that your government can judge what expressions of art fail to meet some arbitrarily set, presumably politically correct standard. If your game is “too violent,” it is only a matter of time before “violence” is used to justify infringing on other areas of free speech. Do you want YouTube determining, subjectively, that something about your video makes people “uncomfortable” and thus it must be censored for failing to meet “community standards?”

I have used before the phrase “the camel’s nose in the tent.” If you’ve never really thought about what this means, you should. When a camel pokes his nose into your tent, it’s only a matter of time before the rest of him follows.

Upholding the constitutionality of California’s vaguely worded video game restrictions would serve only to force the camel of censorship under the tent-flap of society. Such a ruling would clear the path for further infringements on freedom of speech, not the least of which is to empower your government to decide, arbitrarily and capriciously, which expressions of art and entertainment are somehow legitimate. If this issue is to be decided at all, it must be decided by the voters, who collectively could choose to alter the protections of the First Amendment.

Absent so significant an intervention by the citizens it protects, the Constitution and its Bill of Rights should be respected. The courts have no business regulating the creation or sale of art. Video games are art. If they are not, a host of other artistic expressions become fair game for regulation – and millions of American citizens are about to find out just how large and foul-smelling is an entire camel standing in their living rooms.

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