A Complex Narrative

The Washington legislature had passed a law a while ago that imposed a $500 fine on anyone selling to a minor a video game depicting violence against law enforcement officers. The law was just struck down yesterday as a violation of First Amendment rights. Here's the story of Video Software Dealers Assoc. v. Maleng according to Reuters and here's the opinion. (The opinion pdf is hosted by blogger Ernest Miller, who has a detailed walk-through with his comments that is worth checking out.)

The law regulated all "video or computer game[s] that contain[] realistic or photographic-like depictions of aggressive conflict in which the player kills, injures, or otherwise causes physical harm to a human form in a game who is depicted, by dress or other recognizable symbols, as a public law enforcement officer." The court found this too vague a definition for a store clerk to be able to tell the difference between free speech and forbidden games:

Would a game built around The Simpsons or the Looney Tunes characters be "realistic" enough to trigger the Act? Is the level of conflict represented in spoofs like the Dukes of Hazard sufficiently "aggressive?" Do the Roman centurions of Age of Empires, the enemy officers depicted in Splinter Cell, or the conquering forces of Freedom Fighters qualify as "public law enforcement officers?"

The discussion regarding the overbreadth of the statute is also interesting:

If the Legislature hopes to prevent game-inspired hostility toward law enforcement officers, the Act sweeps too broadly in that it would restrict access to games that reflect heroic struggles against corrupt regimes, involve accidental injuries to officers, and/or contain disincentives for violence against law enforcement offices... As a step toward reducing game-related aggression as a whole, the Act would be particularly ineffective because it would not keep minors from playing some of the most offensive and violent video games. Only those games involving law enforcement officers would be off-limits, leaving vile portayals of other persons (often women and minorities) unregulated and widely available to minors.

Quite right.

The intial threshold point that games are speech, as I've said before, should be obvious. But it is interesting, if a bit predictable, that courts seem to want to ground the First Amendment protections granted to computer games in some relation to more traditional narrative media. Jesper Juul noted this last year regarding Interactive Digital Software Assoc. v. St. Louis County, and Hayot and Wesp discussed this at length. For instance, here's a paragraph from the Maleng opinion (with my emphasis):

The early generations of video games may have lacked the requisite expressive element, being little more than electronic board games or computerized races. The games at issue in this litigation, however, frequently involve intricate, if obnoxious, story lines, detailed artwork, original scores, and a complex narrative which evolves as the player makes choices and gains experience. All of the games provided to the Court for review are expressive and qualify as speech for purposes of the First Amendment. In fact, it is the nature and effect of the message being communicated by these video games which prompted the state to act in this sphere.

Hayot and Wesp do a good job of trying to apply this kind of criteria to Everquest in their article. I'm fairly confident that, even if the criteria in the above paragraph turns out to represent the rough legal consensus on the scope of the First Amendment as applied to computer games, MMORPGs as a genre are not at any serious risk of becoming less protected as a less "expressive" type of game. But as Jack Balkin has observed, the First Amendment issues presented by MMORPGs are actually a lot more complicated.

Comments

[4tomsm4sher]

1.

It's refreshing to see a sane, well-reasoned legal opinion regarding the subject of violence in games. Thinking about the law, I couldn't help but be reminded of the restrictions that were placed upon motion pictures once upon a time--including the rule that no film should ever depict a dead police officer. Thse conventions were thrown out long, long ago. What is it about games that makes people more willing to legislate, censor, or restrict their content than they are with other media--comic books, movies, music, whatever?

By the way, great blog. I've added a link to your site on my own blog at http://_render_.blogspot.com. My site covers similar topics--mostly games and game culture. Stop by if you like.

[Ian Schwartz]

2.

I really enjoyed reading this. It was well thought out, and I also agree of how violence in game is growing and how nothing is really done.

[magicback]

3.

First-person Video Game violence is more threatening because it is more objective and realistic. It is more objective because the user is simulating the act of violence in the first-person perspective as opposed to reading it or watching it in the third-person perspective. It is more realistic because the graphics are getting better.

The proposed legislation may be shot down due to ineffective language, but a better worded legislation may pass in the near future.

Frank