Monday, May 6, 2002 7:30 PM UTC

Playing games with free speech

A federal judge says computer games don't deserve First Amendment protection. His decision is wrong, stupid and dangerous.

“[There is] no conveyance of ideas, expression, or anything else that could possibly amount to speech. The court finds that video games have more in common with board games and sports than they do with motion pictures.”

– U.S. District Judge Stephen N. Limbaugh Sr.

Saving democracy sometimes means having to wade toward the shore, while fascists unload hell on you from the beachhead. Which means you usually get killed. But you make that run, again and again, because the goal is worth all those lives you lose in the churning sea.

I could have learned this truth about D-Day from a film like “Saving Private Ryan” or a book like “Citizen Soldier.” But I’m now grasping it just as vividly from “Medal of Honor: Allied Assault,” a computer game.

While the game’s Omaha Beach level is derived from the opening of “Ryan,” it’s a fully interactive re-creation. The object here is to get across the Normandy beach, or die. You die a lot. You’re forced to repeat the process — strafed every step of the way, men screaming all around you — over and over (and over) again, until you’re finally able to reach the bunkers. It’s a common conceit in games: play, die, reload, and ride the karmic wheel of kick-ass, until you get it right. But what “Allied Assault’s” developers have done is use this feature to express an explicit point about World War II, and what it took to win it.

However, according to a federal judge, this cannot be happening — there is no larger purpose for computer games. On April 19, Judge Stephen N. Limbaugh Sr. decided that games weren’t speech at all, and thus deserve no First Amendment protection.

At issue was a St. Louis ordinance that requires parental consent before children under 17 can buy or play violent or sexually explicit video games. The Interactive Digital Software Association had asked for a summary dismissal of the ordinance, arguing that it violated the First Amendment. Limbaugh disagreed.

How significant is the ruling? The U.S. District Court of Appeals for the 7th Circuit has already ruled, in a separate case involving a similar ordinance, that games are indeed speech. According to Lee Tien, senior staff attorney for the Electronic Frontier Foundation, Limbaugh’s ruling doesn’t possess sufficient legal kung fu to take down the higher court’s decision.

“Technically,” says Tien, “no other court is bound by [Limbaugh's] decision, unlike the decision by the 7th Circuit, which binds many district courts in that circuit.”

At least for now. “But if it is appealed and upheld,” adds Tien, “then you’ll have a decision of equal weight to [the 7th Circuit's ruling].”

And that could be a disaster for anyone who wants to see games evolve into a medium every bit as culturally relevant as movies or books. It is, of course, indisputable that the world of gaming is replete with titles that have little redeeming value, just as it is true for every other artistic medium. But as Medal of Honor and other games demonstrate, computer gaming has created a new means of conveying complex, relevant ideas. One more uninformed ruling, and the potential of this medium could be curtailed even further, by legislators with elections to win, and ideologues who’ve pincered it from both sides of the political spectrum. The stakes really are the future of free expression; and as this ruling makes plain, the need for the game industry to mount a preemptive attack is past due. The time for a counterstrike is now.

Limbaugh’s deliberations were based in part on his review of four games: “Fear Effect,” “Doom,” “Mortal Kombat” and “Resident Evil” — though the court opinion misnames two of them as “Mortal Combat” and “Resident of Evil Creek.”

“I think it is obvious that such a small sample is not conducive to a thoughtful analysis,” says EFF’s Tien. (Not to mention that three of the games are 6 to 9 years old — quite hoary, by the young medium’s standards.)

“First of all,” says Henry Jenkins, director of MIT’s Comparative Media Studies Program, “the 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 First Amendment protection. … The judge even manages to misidentify or mangle the titles he cites, suggesting that he didn’t look at them very closely.”

In fairness, Doug Lowenstein, president of the Interactive Digital Software Association, repeated the “Resident of Evil Creek” misnomer when I asked him why only four games were presented to the court.

“A tape with excerpts of these games was … submitted to the court by the county [of St. Louis] as part of the record,” Lowenstein says. The IDSA legal team countered the tape with scripts to video games, he says, that emphasized plot and story lines aimed at proving that games qualified as speech. But, with the background of the 7th Circuit Court’s favorable decision as a guide, “It was frankly inconceivable that this issue was in question.” (Messages left with Limbaugh’s office, asking if his honor had actually played any of these games, or if he had considered reviewing other games, were not returned by press time.)

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 name “free speech.”

“The court admits that these ‘scripts’ were creative and very detailed,” Limbaugh says in his ruling. “However, this ‘background’ expression does not make every automobile, gadget, or machine created, a form of expression.” In other words, any element that seemed like speech, in other words — plot, dialogue, and so on — was inconsequential to expressing anything substantial outside the game itself. And this was especially true in the narrow selection of games that Judge Limbaugh inspected. “[T]he Court simply did not find the ‘extensive plot and character development’ referred to by the plaintiffs in the games it viewed.”

But is that enough to deny games their rightful constitutional honor? EFF’s amicus brief for the 7th Circuit case argues that while the speech in a horror-themed video game is indeed trivial, it’s no more so than a comparable gore-fest from Hollywood:

“To describe the artistic or communicative elements of such games as inconsequential, prompts the question, ‘as compared to what?’” Certainly anyone familiar with the modern horror film genre would not suggest that this body of work contributes much to further the practice of deliberative democracy.”

That may be, but it’s hardly a banner you can rally the troops to: Computer games — almost as important as schlocky drive-in crap!

The argument also seems to accept the assumption that as a communicative form, games can only rise to the level of exploitation film. “It is certainly possible for video games to convey political expression, criticism, etc.,” Tien expands. “But as a general rule EFF does not like arguing that ‘X can express political views, therefore X is speech.’ First Amendment protections are not and should not be limited to political speech.”

No doubt. But that still seems beside the point: As with pornography and gratuitously violent films, censorship inevitably targets media that’s perceived to have nothing of value to say. (The St. Louis ordinance is specifically designed to regulate violent games that lack “serious literary, artistic, political or scientific value as a whole for minors.”)

But even a brief review of several notable games from recent years suggests how wrongheaded that formulation really is.

At one point in Ion Storm’s Deus Ex, the player (you are an American counterterrorist agent) must acquire important information from a Hong Kong bartender to progress further in the game. To talk with him, you’re presented with a conversation tree — a series of statements the player can make in the dialogue. (A common interface in gaming.) The bartender has a decidedly leftist bent, and he’s not buying the player’s naive faith in the Constitution. Accordingly, your options in the conversation tree are now: “I’ll take a drink,” “I’ll get a drink later” and “The separation of powers acknowledges the petty ambitions of individuals; that’s its strength.”

In Lionhead Studios’ Black & White, the player takes on the role of a god, who must care for the needs of his worshipful tribe. But as the game goes on, these needs expand, forcing the player to micromanage his or her everyday wants ever more attentively. According to Richard Evans, the game’s artificial intelligence programmer — who based much of it on concepts he learned while he was a philosophy student at Cambridge — this was entirely intended by Peter Molyneux, the game’s lead designer.

“Peter wanted the villagers to be increasingly reliant,” Evans once told me, “so that the more you helped them, the less self-sufficient they are, so that you are drawn into a spiral of dependency. He was trying to make a point about human nature.”

In Electronic Arts’ “Majestic,” the player must unearth a decades-old conspiracy by uncovering clues found in e-mails, instant messages and other media. Early on, you receive a fax, detailing one character’s personal background — whose motives up until then seem entirely benign. The fax reveals that he was actually the founder of a crack cocaine distribution network in the ’80s, set up to funnel drug profits for financing the Contra rebellion in Nicaragua. Important to the game, the original author of this element meant 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 — which the CIA possibly suspected, but did little to interdict. (I should know: I’m the one who wrote the fax.)

Similar examples of gameplay designed to function as social commentary are evident in “Max Payne,” “The Sims” and “State of Emergency,” to name a few more. (And with the possible exception of “The Sims,” all contain violence graphic enough to run afoul of the St. Louis ordinance.) And contrary to Limbaugh’s views, the expressions are not inconsequential, but are inextricably woven into the experience of the game itself.

And at least one of them confounds Limbaugh’s cheeky comparison of video games with traditional games like backgammon, or baseball. In The Sims, there are no discrete conditions for “winning” or “losing” the game; the only goal is what you choose to do with your Sims, and the narratives you construct for them — which vary wildly from player to player. (This is sometimes referred to in the industry as a “sandbox” game, and it’s also a strong aspect to Black & White.)

The pity is, we can name only a few more. Because as it happens, Limbaugh is pretty much right that most speech in games really is inconsequential, with characters and plots that are largely an artifact of marketing, more than anything else, derived from the shuffling about of recycled archetypes with the necessary Q-rating. (In this game, you’re a warrior/wizard/officer/king/commander, and you’re the only one who can stop/escape/surpass/overrun/destroy an evil race/army/mysterious entity/monstrous horde/dictator that threatens your self/society/kingdom/planet/entire known universe.)

The industry has largely let itself decay to this state, while many in it seem oblivious of the larger stakes. In an apparent slam at fellow developers who strive for something higher, for example, “Doom” co-creator John Carmack recently announced, “We’re doing entertainment. Saying it’s art is a kind of sophistry from people who want to aggrandize our industry.”

He’s ignorant of at least one more motive: building a shield to protect the industry from oncoming waves of regulation-minded civic leaders, still unaware that games contain meaningful speech. (And who can really blame them, when they’re asked to find the meaning in games like, well, “Doom”?)

“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.”

The judiciary is not Jenkins’ main concern. “This judge was simply off the mark and is likely to be overturned. … Politicians are going to be a tougher sell because they really aren’t interested in finding out the truth. They don’t hold hearings; they hold show trials.” And they’ll hold them, until a generational shift kicks in: “until there is a significant portion of the public who grew up playing games and who are now part of the voting population.”

But what to do, during the 10 or 20 years before that happens? Jenkins himself runs a program aimed at expanding the power of games as an instructional tool, while the nonprofit International Game Developers Association has launched an effort to create a dialogue between game developers and academia. Both highly laudable — but, again, their main yield comes in the long term, with no immediate plan against these constant incursions.

But there is an opportunity for another approach. In old Hollywood, the studios regularly produced a few films every year whose main intent was to dramatize social issues and give their more ambitious artists room to breathe. Profit was secondary (but hardly impossible, especially when Oscar dividends kicked in).

Imagine what could happen if the game industry followed this example. Successful game publishers could invest a portion of their profits into games conceived with explicit social and artistic goals in mind. The ideas are out there, nurtured by designers aching for the chance to develop them, but fairly certain that their employers would never risk the investment on something so incomprehensible as having something important to say. The obstacles are steep, even for seasoned developers: Despite his stellar track record, Will Wright had to fight executives to secure financing for “The Sims.” “They were all sure,” he once noted, “that it would suck.” (This, for a title that’s become the most popular computer game of all time.)

Is something like this happening now? Jason Della Rocca, program director for the IGDA, can’t come up with a single example.

“Sadly, I am not aware of any publisher that dedicates resources to these types of agendas. … In the end,” he suggests, “it comes down to economic and prestige factors. If our media was more critical and there was a demand for such content, we would certainly see more of it.”

But as a recent Los Angeles Times article makes clear (if a much earlier Salon story had not), the gaming press is too beholden to game publishers, too cowed by their largesse to offer much objection when the curtain is parted on yet another iteration of an expansion pack to a sequel from a series of a genre that hasn’t strayed outside its preconceived borders in years.

I’d love to be proved wrong. Because until the industry is willing to make those risks, we’re doomed to flounder on the ramp, while the Judge Limbaughs of the world peer down at us through their gun sights, and slam the hammer back.