"Playing Games With Free Speech"

By Wagner James Au

By Salon Staff
May 13, 2002 11:00PM (UTC)
main article image

Read the story.

As always, Wagner James Au has written an interesting article on computer gaming. But I feel he has confused two important issues in this piece: whether or not video games deserve First Amendment protection, and why there are so few really interesting and artistically (or socially) important games.


Whether or not games are constitutionally protected speech should not depend on whether they, in fact, say much of anything (hence EFF's reluctance to tie that constitutional protection to the real -- or potential -- political speech contained in games).

That a court would rule that games do not have such protection is unfortunate, but not entirely surprising. We've been down this road before. From 1915 through 1952, motion pictures enjoyed no First Amendment protection, thanks to the U.S. Supreme Court's ruling in Mutual Film Corp. vs. Ohio Industrial Commission. The court held that films were simply business, not speech.

Of course, our current notions of what speech falls under the First Amendment are much broader than they were in the 1910s. It sounds unlikely that higher courts will uphold Judge Stephen Limbaugh's ruling.


Giving games the First Amendment protection they deserve in no way guarantees that Au's second concern will be addressed. (And it is worth pointing out that the "Golden Age" of the Hollywood studio system occurred during a period in which films had no First Amendment protection.) Nor do I even think that the Judge Limbaughs of the world would view the medium differently if there were more good games. Folks who think that whether or not a medium is a form of expression depends on the quality of that medium's expression (yes, I know that's a paradox, but there you have it), will always be able to find trash with which to denigrate the form. No number of new, high quality games will eliminate the profusion of mindless first person shooters.

The argument over games as speech has to be won for the trash as well as the art, though I join Au in hoping that the overall quality of the medium improves.

-- Ben Alpers


When I read that video games are no longer considered sources of information and are therefore not protected under free-speech clauses, I think "good!" I know that this diminishes the amount of legal respect that my passion gets, but doesn't it also cause the arguments against video games to dissipate?

I say this, because if there is "no conveyance of ideas" in video games, then how can kids get evil messages from them? Wouldn't it be paradoxical, now, for legislators to claim that video games are filling the nation's children with violent ideas if, as the court believes, a video game lacks the potential to transmit those ideas? According to this ruling, video games are harmless, and it appears that the moral right has just painted itself into a corner.


-- James Douglas

The fundamental problem here is that if First Amendment protection can be removed from any form of expression if "un-speechlike" elements are "discovered" to be part of it then any expression can, with a very little creativity, be parsed in such a way as to discover such elements. It's similar to the argument, made in other First Amendment contexts, that, because speech can have effects, First Amendment protection can be removed from the "acts" that cause such effects. Can anyone not see through this? Free speech has never been absolute, but in order to limit it, you must, if you wish to have any kind of real freedom of speech, only permit exceptions which are fundamentally limited in principle.

-- Dave Bollman


In his article, Wagner James Au asks the question "Don't computer games deserve the same protection as schlocky Hollywood gore-fests?"

They may well, and my suspicion is that they will get that same level of protection as soon as the computer game industry increases its congressional campaign contributions to the level of Hollywood's. Money talks in Washington, and will continue to do so despite the well-intentioned campaign finance reform legislation recently passed. Look at the recent legislation Fritz Hollings has sponsored, which might as well be titled the "Movie, TV, and Software Industry Protection From Their Customers Act" for an illustrative example.

-- Alan Lloyd


I just read this article, and in general I support the author's point but I wonder at something that I did not see mentioned. Over and over the issue here, that games should be protected by the First Amendment, seems to be one that is supported by people only reluctantly. As Mr. Au himself puts it, "... And at least one of them confounds Limbaugh's cheeky comparison of video games with traditional games like backgammon, or baseball ... 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 ..."

Many of the games that come to the attention of mainstream media are, indeed, worthless if you wish to make a case for games as speech, but, as Mr. Au pointed out, so are mainstream films. Does that mean that all games are this way? No. Does that mean that it is even difficult to find games that should be protected by the First Amendment? Again the answer is no. Throughout video gaming's history there have been multiple titles that have covered diverse topics from government corruption (Deus Ex, Floor 13, KGB, etc.) to racism (Ultima VI, Oddworld, etc.). Perhaps the issue here really isn't whether or not games should be protected forms of speech but whether or not an opinion can be formed without the facts. Maybe we need to ensure that no one with a prejudicial opinion be allowed to decide the future course of government or curtail the ability of our children to choose the medium through which they explore and develop their own morality.

Video games are the first medium available to us that actually allows us to experiment with our life choices. Black & White, a game mentioned in the article, is a perfect example of this. How the player plays the game, the moral choices made, becomes an indicator of what type of person the player is and the game changes to reflect that. Treat your villagers poorly or with cruelty and you slowly turn grotesque, your persona's darkness slowing being revealed to all. A game like this allows anyone with the patience and open-mindedness to do so to explore who they are by making the choices they feel are right and comparing the outcome to their expectations. You can't do that in books, you can't do that in film, you can't even do that in a discussion with another person without their opinion coloring the outcome. For that sole reason alone shouldn't interactive gaming be nurtured and protected? I don't really know, but I do know that as a child and an adolescent this medium did more to shape the man I became than film and I think I ended up a better person because of it, but as Mr. Au put it, "That can't be happening" since this court has decided games cannot possibly contain any speech worth protecting.

-- Adam Maxwell


The real problem was with the IDSA's attempt to use the First Amendment as a battering ram to knock down an ordinance that has nothing to do with free speech. By asking for a summary dismissal based on that, they force the court to make a decision on freedom of speech for video games. R and X rated movies are protected by the First Amendment, but laws still prevent children from seeing these films without adult supervision. Why should we leave video games wide open to children?

The ordinance was designed to use the industries rating system to control access. How much more fair could that be?

Judge Limbaugh did make a bad decision in addressing freedom of speech for games at all, but I place the blame for that decision firmly on the IDSA's attempt to hide behind the Constitution so they can circumvent a parent's ability to monitor what their child is buying.

-- John Zucco


If games are inconsequential and thus not deserving of First Amendment protections, is one to assume that the digital code used in the creation of the game is not worthy of the protections granted under the Digital Millennium Copyright Act? Should anyone acting under this assumption then feel free to copy or alter such digital code? If the code, being only bits and parts of the whole game, is granted protection under this act, then surely the sovereignty of the act transcends that of the First Amendment.

-- Kurt Morgan

I agree with the article wholeheartedly ... Here is my response ...

Yes, it is troubling ... I've played games that touch upon heroism and explore morality. I think of games like Black & White, Thief, Final Fantasy, any of the adventure/rpgs. Sure, there are plenty of games with very little expression in them but there are plenty with a lot of worthwhile content.


I hate to have games crippled. It makes them easier to censor. Thief is an excellent game partly because it emphasizes the use of wit over violence. I played through the entire game without killing one person. The blackjack was my trusted tool. Sadly, it had levels where you had to kill monsters. But no virtual humans were hurt in my gaming experience.

Final Fantasy 7 was an awesome game that deeply affected me. I loved the moral gray area in that game. It really made you think. There was a character Sephiroth who was frickin' insane and doing horrible things. But as you progress in the game you find out some of the things that happened to Sephiroth to help make him who he was. So you reach your own conclusion. My conclusion was that those events didn't warrant his behavior, but I did feel great sympathy for him. He was a victim of evil just the same as the rest of the people. The hero of the game, played by you, also had some major issues ... You find out that there is darkness in your own past and you've been lying to everyone with your fabricated version of events. You've just been lying so long you've forgotten what the truth was.

Any medium that can have characters that you can build such a strong emotional attachment to should be protected. There are a lot of generic games out there, but there are also ones that actually say something -- sometimes, something very deep, sometimes on a far more personal level than a movie could ever do. Comparing all video games to board games is misguided.

I severely doubt I'd ever cry as much over a game of "Monopoly" as I did when Aeris died in FF7 trying to save the world. I was heartbroken. I reloaded and replayed that section over and over until I realized there was nothing I could do to stop it from happening. Sure, my character eventually saved the world but at the expense of someone he cared about ...

Self-sacrifice? Global responsibility? I'd be thrilled to have a child or adult pondering such issues ... Games give people a "Moral Sandbox" to play in. They can explore how they feel and how they want to behave safely. In the "The Sims" you can either torment or try to please the characters. Is virtual contrast such a bad thing?

Its just pixels. Nothing to protect there. :-/

Thanks for publishing this article and spreading the awareness ... :)

-- Michael McIntosh

Interesting article. While most of his points are salient, I fail to see their significance to the court decision in St. Louis. Essentially, the court decision in St. Louis seems to be saying that regulation of the game industry is fine. While I feel there are certainly artistic merits to some games, it is also clear to me that, like movies, certain kinds of games should be kept out of the hands of young people.

Even the author's example of Medal of Honor is telling. He compares it to the movie "Saving Private Ryan," citing both as purveyors of good social commentary. On that point we agree. But, he seems to forget that "Private Ryan" was a movie made and rated for adults. The strong violence in the movie certainly had a point, but was violence nonetheless, and difficult or impossible for younger viewers to put in the proper context without adult supervision. The same is true of violent or sexually explicit video games. They may very well have a social theme, and provide a good message for their players. But, like violent movies, younger players need help with the context, as I expect a 12-year-old boy playing Medal of Honor does so for the blood, guts, and gore, not for the redeeming social message that war is hell and that success in war requires the sacrifice of many good people. That message will be lost on 12-year-olds storming the beaches.

-- Lyle Bateman

I agree wholeheartedly that games should be protected by the First Amendment. However, from my understanding of this article the court ruling seems to be about parental guidance regarding overly violent and sexual games. Don't these same type of restrictions apply to movies?

I wish that our culture was mature enough to put some restrictions on the type of entertainment that is mass marketed to children, whether it be movies, games or whatever. However, it seems that the current rating system for Hollywood movies has not discouraged the marketing of outrageous violence to children in any way.

Does the writer of this article believe that there should be no rating system and age restrictions for movies?

Undoubtedly, there is some good entertainment out there that is creative and enriching. However, the vast majority of children's entertainment today is pathetic and disgusting. I believe the excessive violence in children's entertainment is due to a lack of creativity from producers and developers. Having someone get killed every five seconds is an easy answer for uncreative producers who want to make something popular.

If you are a game designer, don't whine about your right to blow things to pieces. Get out of your puddle of blood and make something fun and creative for our children to play.

-- Corey Stevens

One thing not mentioned, in fact never mentioned, is how some games have very subversive messages buried deep within the game. Deep enough that a parent or a judge would not discover them with only a few minutes' play.

Bear in mind these are sometimes disguised as "jokes" but they are clearly communicating something.

The one example that most strongly comes to mind is Grand Theft Auto III. In fact with all the talk of the "anti-capitalism" of the follow-up game "State of Emergency," almost no one mentioned (or knew about) the anti-capitalism of GTA III.

While driving around in cars the player has a choice of radio stations. Some just play music but a few have "commercials" and one is all talk. What's interesting is the deeply cynical points mentioned in the radio stations. One "music" station talks about being owned by the same people that own hundreds of radio stations across the country, "making all radio sound alike." Another talk radio station blithely makes fun of the pointlessness of most "talk radio" shows. And then there are the commercials. I like Pets-on-Delivery the best.

-- Rachel Larris

We've already heard, ad nauseam, how exposing these kids to sex and violence damages emotional development and regard for human life. If I hear another right-wing nut go on about how parents should be the ones to determine how much violence and sex their kids should get and not the commercial industry, I'll throw up.

I think it's time we turned the tables on those wacko-conservatives and make a solid case for feeding kids a good dose of gratuitous sex and violence. Like "it shows kids what they shouldn't do in normal society" or something like that.

-- Reuben L. Owens

In your article, you state "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"

But that's because you're only looking at the big blockbuster mass-produced games. If you look both before and beyond that, particularly to text adventures, you'll see something both much richer and more clearly "speech." Major authors like Douglas Adams wrote games for Infocom, and even without a major publisher behind it, individual programmers are still writing what is commonly known as "interactive fiction" -- the very term demonstrates its ties to protected speech.

Maybe the lawyers appealing this ruling should bring along the winners of the annual Interactive Fiction Competition to show the next judge how much artistic merit the media can contain.

-- Elisabeth Riba

Salon Staff

MORE FROM Salon Staff

Related Topics ------------------------------------------