Peter Jenkins has a new paper in the Journal of Internet Law that analyzes free speech issues in MMORPGs. A version is available on SSRN. From the abstract:
In the 21st century, traditional company towns like Chickasaw, Alabama, where a corporation steps into the shoes of the state for purposes of the First Amendment, are almost non-existent. This paper postulates that they have been replaced by Massively Multiple Online Role Playing Games (MMORPG's)... The paper emphasizes that the case law on freedom of speech in MMORPG's will have a profound precedent setting effect on how the First Amendment is applied to [a] coming universal virtual platform, since the legal principles concerning new technologies tend to be set at an early stage of their development.
This is the most extensive analysis of the "company town" doctrine's application to virtual worlds that I've seen. For what it's worth, many of the TN authors here are cited.
Update: Readers may be interested in doing a contrast/compare with Jack Balkin's article around pages 33-37, where he discusses the Marsh case as well...
Ouch, my brain.
In Marsh vs. Alabama, the first paragraph of the opinion of the court is summed up with:
MMORPGs fail to meet that criteria, even in a virtual way. You aren't allowed to hand-out religious tracts at Disney World either.
And this...
...is just piffle. I just "ate" some "food" in SWG, should it have been FDA approved?
Furthermore, I completely disagree with this paragraph from the abstract:
We don't know what the future holds. Will MMO's be more worldy or more gamey? To damage the potential of the game-oriented MMO's in favor of a prophetic notion that virtual worlds are the future is, IMO, bad.
Maybe they will be and maybe they won't be.
Court decisions ought to be based on how things are, not how some people wish things might someday be.
And finally, in Marsh vs. Alabama, Marsh was arrested.
The EQ police don't even write tickets.
Posted by: Jeff Freeman | Jul 29, 2004 at 15:16
Well, I don't think anyone is saying that the food you ate in SWG needs to be FDA-approved. But questioning the continuing viability of the state action doctrine in the context of virtual communities is something people have been doing for a while now. To apply old law to a new technology, you don't have to equate the two subjects of regulation, you just need to make an argument that the similarities outweigh the differences.
In your favor is the fact that courts, so far, haven't proven very receptive to arguments that state action doctrine needs to be revisited in the context of virtual forums. The case most often cited is this one:
http://legal.web.aol.com/decisions/dljunk/cyberorderf.html.
The Supreme Court hasn't spoken on the issue, though.
I noticed you've come across this before. :-) Btw -- everyone should check out Jeff's blogosphere chart: http://mythical.blogspot.com/2004/07/mmo-blogosphere.html. Kind of trippy...
Posted by: greglas | Jul 29, 2004 at 20:56
Jeff> MMORPGs fail to meet that criteria, even in a virtual way. You aren't allowed to hand-out religious tracts at Disney World either.
Can you hand them out at Universal City Walk in LA? It's a shopping mall, except that you pretty much have to park (and pay) to get there. So it's public if you can afford a nominal fee, which feels more like a shopping mall than a private club. At $14.95 per month, I would think that digital worlds also are on the nominal side of the fee scale.
Jeff> ...is just piffle. I just "ate" some "food" in SWG, should it have been FDA approved
Not sure what eating has to do with social connections, property ownership or virtual jobs. Are you saying that jobs in MMOs, for example, aren't really jobs -- even if you are earning a significant part of your income from them?
Jeff> Court decisions ought to be based on how things are, not how some people wish things might someday be.
Wow, I'd love to hear what the lawyers in the room think about that one. Aren't court decisions often about doing the "right" thing even if it goes against the status quo or common sense? Aside from whether I agree with you relative to Peter's paper, I'm just curious whether you really think your statement stands on its own.
WRT Peter's paper, my opinion is that papers and thought experiments that point out potential problems -- Professor Balkin raised similar issues -- or that help others (read: judges) trying to learn about the space of digital worlds -- games or otherwise -- are important.
Posted by: Cory Ondrejka | Jul 30, 2004 at 02:45
I was very disappointed by this article when I read it last week. It seems to me that in pursuit of his point, the author is dismissing counter-points with some very weak argument. What annoyed me most was his misuse of Ted's quote about virtual worlds having "decayed into places where the atmosphere is more like a middle American shopping mall" to dismiss all suggestion that complete freedom of speech would erode the entertainment value of MMORPGs. As I understand Ted's position (correct me if I'm wrong, Ted), he's arguing against such decay; he wants for people to be able to have virtual worlds where this is not the situation. He wasn't suggesting that it should be taken as precedent and locked into the legal system.
Not all virtual worlds have decayed to the extent that people killing diseased rats in a village square would take in their stride the appearance of an avatar representing the NRA or Jehovah's Witnesses or the National Democratic Party. Many players would indeed regard it as an erosion of the VW's entertainment value. Throwing your hands up in despair and saying, "things are so bad that free speech won't make it any worse" is wrong on both counts: things aren't that bad, and allowing people to smash immersion by advocating RL political views will indeed make it worse.
Fortunately, one of other points that the paper makes is not fully explored, and may provide a lifeline. Virtual worlds may be places, but they're not places in America.
Richard
Posted by: Richard Bartle | Jul 30, 2004 at 04:48
Richard> Virtual worlds may be places, but they're not places in America.
If you're saying that every state can try to regulate, yes. But if you're saying a server in Virginia or California doesn't exist in America, that will be an even tougher sell than calling them public forums!
I generally agree with you that designer controls over player speech in VWs could be important to game play -- but that seems like more an aspiration than a reality. How many big, MUSH-like worlds are out there, even on role-playing servers? I doubt any designers really want to encourage 1337sp34k, but you see it everywhere. In light of that, do game owners really deserve the categorical ability to prevent groups like the Pink Posse from making a point?
Posted by: greglas | Jul 30, 2004 at 07:07
Yes, it should be up to the game's management of some kind (might or might not be the designers of the game). They are restrained from excess by loss of income, basically - if they are more controlling than customers want, they'll lose customers; there is little point to permitting what most customers don't want. Otherwise, there's nothing they could do about someone making a costume resembling (for example) a KKK member and standing around shouting "White Power!" (something going on last night while I was playing one of these games). Having to allow such things might lose them even more customers.
Disney's Toontown has an even more limited allowance of speech - you can only choose from their menu of options of things to say. I wouldn't like to see that game design choice made illegal...
Posted by: Dee Lacey | Jul 30, 2004 at 08:02
"If the right road is not taken, then we run the risk that the coming universal virtual world will be, from a freedom of speech perspective, a nightmarish endless global shopping mall, instead of an empowering enhancement of the real world with its boundless opportunities for encounters with those of differing viewpoints."
Personally, I'll take the shopping mall. Most of my "encounters with those of differing viewpoints" were not positive and life-affirming experienced filled with fun and flowers of happiness.
I realize the need to protect speech in the real world (at least political speech). But even in the real world, there are reasonable limits to speech. You can't incite a riot, cry fire in a crowded theater, etc. There are also limits to speech on private property, and I'd assume any on-line game is the private property of the developer (or, possibly, publisher).
Posted by: AFFA | Jul 30, 2004 at 12:03
I'm willing to bet you couldn't hand-out religious tracts inside of any mall and certainly not inside of any particular store within the mall.
Outside in the parking lot is a different matter.
If you're earning a significant part of your income from EverQuest - which was mentioned in the article as an example - then you need to be banned. You don't have the right to do that, let alone to do it and then use it as the gateway to insist on even broader 'rights'.
Yes, I think the statement stands on its own, assuming you don't take it to mean that courts should always maintain the status quo (and you shouldn't take it to mean that, because that's not what it means).
When a court makes a decision to "do the right thing" it ought to be based on the current situation. i.e. someone somewhere is doing the wrong thing, or the status quo is "bad". Not: someone someday in the far fuzzy future might do the wrong thing. Not: Maybe if we colonize the moon someday we'll need to allow six-way marriages, so let's go ahead and make them legal now.
Treating today's online games as though they were tomorrow's hypothetical online worlds is a startlingly bad idea.
You know, just, IMO.
Posted by: Jeff Freeman | Jul 30, 2004 at 12:06
I read through the court case brief that Greg cited and I think that based on the ruling the following can be summarized:
"The Court distinguished Tate, by observing that "[b]y adhering to a strict no political solicitation policy, [Connecticut General] has uniformly and generally prevented the mall from becoming a public forum."
Thus, VW operators should be aware of this ruling and actively enforce to keep their specific "magic circle".
Posted by: magicback | Jul 30, 2004 at 21:28
Jeff> I'm willing to bet you couldn't hand-out religious tracts inside of any mall and certainly not inside of any particular store within the mall.
Just trying to understand your position on this Jeff -- so you agree that you shouldn't be able to exercise freedom of speech in a mall? You'd support Stephen Down's arrest for wearing a peace t-shirt in a mall, for example? I'm not sure that is in the mall's best interest in the long run, although I can see why they might want it in the short term.
Jeff> If you're earning a significant part of your income from EverQuest - which was mentioned in the article as an example - then you need to be banned. You don't have the right to do that, let alone to do it and then use it as the gateway to insist on even broader 'rights'.
What about worlds that don't ban economic activities? There's nothing wrong with that, right?
Jeff> Yes, I think the statement stands on its own, assuming you don't take it to mean that courts should always maintain the status quo
Fair enough, although it still seems like the various "activistic judges" comments that Fox News seems fond of. It seems to me that some of the most famous court cases in history are about a few people deciding how something should be.
However, I agree with Jeff -- and Richard, I suspect -- that Peter's paper is more applicable to future, generalized digital worlds rather than MMORPGs. The problem is that the lines between MMORPGs and Second Life may continue to blur over time, so it's hard to find the right litmus test to distinguish between them. Yes, the EULA may ban real-world trading, but if that game has a $1 million/month being traded on eBay, is that EULA really being enforced?
More broadly, something that Jack Balkin also raised is the question whether the EULA actually protects the world operator if a court were to decide that a MMORPG was a public space. Guild Wars is going to be free for the spaces where you form groups for adventuring. Does that space correspond more closely to Peter's "public space" than EverQuest?
Posted by: Cory Ondrejka | Jul 30, 2004 at 23:42
greglas>If you're saying that every state can try to regulate, yes. But if you're saying a server in Virginia or California doesn't exist in America, that will be an even tougher sell than calling them public forums!
I didn't say the servers weren't in America. I said the virtual worlds weren't in America.
Richard
Posted by: Richard Bartle | Jul 31, 2004 at 06:03
Well, two things.
One: "Freedom of Speech" is not a boolean sort of "either anyone can say/do anything they want OR no one has the right to express any opinion in any way, anywhere whatsoever, no matter what".
Two: I get the feeling you keep trying to stuff words in my mouth as though you're attempting to lure me into some sort of trap, and since you might very well succeed at that (regardless what I actually believe), I'm not going to stagger down this path any longer.
So, I'm done with this thread.
Posted by: Jeff Freeman | Jul 31, 2004 at 06:21
Jeff,
No, not a trap, just curious because I'm not certain about my own feelings on the issue. Personally, I'm torn because I don't want to receive propoganda at a mall but on the other hand the idea that a mall owner can have someone arrested for wearing a t-shirt feels wrong. Forced to make a choice, I'd accept the former in order to prevent the latter.
This discussion is particularly interesting to me because Second Life has adopted a very European approach to free speech, namely that we explicitly ban hate speech against real-world groups or individuals. If Peter (or Jack Balin) is correct, that decision may be a problem.
Posted by: Cory Ondrejka | Jul 31, 2004 at 13:23
Ok, maybe I was being overly cautious and/or sensitive.
There's a difference between handing out literature and simply wearing a t-shirt. Enough of a difference that where one thing is clearly disallowed, the other was up for debate (and so, there they go to court, and it's an oddball enough event to be considered newsworthy).
People don't get arrested for wearing offensive t-shirts in semi-public places. They get arrested for refusing to leave semi-private places when asked to.
One cannot "refuse to leave" any current MMORPG when asked to do so, so this sort of thing just isn't going to happen. It is, again, a matter of the difference between online and offline being so great that comparisons are, at best, a playful daydream.
The assertion seems to me to be that although the right thing to do given the current environment is to police users' speech (and thus prevent serious damage to the users' enjoyment of, and therefore the life of, the online game), we should all abstain from doing so and cooperate to guarantee freedom of speech (beyond even what is allowed offline in private places which are open to the public) because maybe someday in the distant future our robot overlords will force us to spend the majority of our time in virtual places... and that if we don't hose-up today's game, we maybe risk having less free-speech in the VW of the future, should it actually ever exist.
I disagree strongly with that.
And I don't think courts will make a decision to seriously damage something which currently exists in accord with a hypothesis that it would be in the best interest of something that that doesn't exist and might never exist.
Posted by: Jeff Freeman | Aug 01, 2004 at 04:34
Courts do make decision based on here and now, but it is also human for Judges to consider the legacy and implication of their rulings. But, luckily we have court of appeals to modify rulings.
I think the current-day issue VW operators should focus on is whether they have have the desire to turn their virtual world into a public forum, or make incremental decisions that give the appearance of allowing their virtual world to turn into a public forum.
I also think that gameworlds will be presumed to be private property, so the application of First Admendment rights will need to pass the government-association tests outline in the AOL case brief.
In application, SL or other social worlds may inadvertently allow users to take advantage of in-game freedoms to conduct series of activities that would change the nature of the world from private to public.
Posted by: magicback | Aug 01, 2004 at 05:39
Jeff> The assertion seems to me to be that although the right thing to do given the current environment is to police users' speech (and thus prevent serious damage to the users' enjoyment of, and therefore the life of, the online game), we should all abstain from doing so and cooperate to guarantee freedom of speech
I agree with your disagreement to that statement :-). My take away from Peter's paper was that there seemed to be a reasonable argument that if an online game met certain criteria that constitutional issues could become important, not that EverQuest should be forced into allowing free speech.
It is of particular concern to me, as magicback points out, because SL is a lot more likely meet those criteria :-). So I'm trying to focus the discussion more on whether his scholarship is good -- and thus the long term issues are real -- rather than the impact on EQ.
More generally, while all of have decided that our worlds are better with more limited speech, it seems like a question that is worth reexamining on a regular basis. Maybe there are advantages that we aren't considering.
Posted by: Cory Ondrejka | Aug 01, 2004 at 11:36
Richard> I didn't say the servers weren't in America. I said the virtual worlds weren't in America.
Are you saying that the digital worlds aren't where their servers are? From a practical standpoint, that's clearly wrong. If a government can get guys with guns to your servers, your world could be made to conform to American laws and regulations, so it sure feels like it's in America.
Or were you speaking more philosophically, a la Barlow's "Declaration"?
Posted by: Cory Ondrejka | Aug 01, 2004 at 11:41
As a legal matter, the virtual world is deemed to be (more or less) where the server is, or where legal jurisdiction over the server can be asserted and enforced. But in a philosophical sense, you can argue the world exists elsewhere. Contrast and compare Julian's thoughts in MTL:
"The_Author realizes now that during all those
months he never really doubted LambdaMOO
was in this box, compact, condensed, its
rambling landscapes and its teeming
population all somehow shrunk down to the
size of the server's hard-disc drive."
http://www.juliandibbell.com/mytinylife/tinyexcerpts_paloalto.html
Posted by: greglas | Aug 01, 2004 at 12:03
Whoops -- left out Julian's conclusion (same link)
The_Author puts the camera back in his
pocket. Three weeks from now he will hold
in his hands the photo he's just taken and
he'll look at it and think, "My world is
not in there. The 1s and 0s of it maybe,
the nuts and bolts. But not its soul."
Posted by: greglas | Aug 01, 2004 at 12:20
Greglas wrote:I generally agree with you that designer controls over player speech in VWs could be important to game play -- but that seems like more an aspiration than a reality. How many big, MUSH-like worlds are out there, even on role-playing servers? I doubt any designers really want to encourage 1337sp34k, but you see it everywhere. In light of that, do game owners really deserve the categorical ability to prevent groups like the Pink Posse from making a point?
You don't see 1337sp34k in any of our games, I can tell you that. Both the administrations and the in-game communities are extremely intolerant of that particular brand of nonsense.
There are plenty of places to make a point. The Pink Posse, the KKK, the Catholic Church, and the Boy Scouts can just go off somewhere else and make their point. They'll find themselves swiftly punished if they choose to pollute the environment with those irrelevant (to the virtual worlds) organizations.
---matt
Posted by: Matt Mihaly | Aug 01, 2004 at 21:45
Thank you all for your comments on my paper. They will be very helpful in terms of weaving some of these ideas into a longer work. I would like to reply to a couple of points that Jeff has raised in particular:
Jeff> And I don’t think that courts will make a decision to seriously damage something which currently exists in accord with a hypothesis that it would be in the best interest of something that doesn’t exist and might never exist.
The application of the company town principle to MMORPG’s by a court would not hinge upon the notion of a coming virtual platform, but rather on the issues of domicile, virtual world as place, public access, the “political isolation booth” syndrome and the designated public forum test. The link to the court case provided by Greg is a 1996 case dealing with e-mail where these issues were not discussed since e-mail is qualitatively different from virtual worlds. The discussion of the coming universal virtual world is some speculation about the results that would flow from not applying the company town principle at an early stage of the development of virtual worlds.
In terms of any adverse effects on games from freedom of speech abuses, these can be mitigated by player use of the mute, ignore and ban buttons as well as the use of viewpoint neutral zoning restrictions coded into the software, and private player spaces within the games. These technologically-mediated self-help solutions are in fact much more efficient than the more cumbersome solutions to deal with forced listening and other free speech problems in the real world.
Jeff> If you’re earning a significant part of your income from EverQuest – which was mentioned in the article as an example – then you need to be banned. You don’t have the right to do that, let alone do it and then use it as the gateway to insist in even broader ‘rights’.
I think you are referring to Jack Balkin’s idea that freedom of expression has more application in games that have real world commodification than in those that do not. You are concerned that under this idea, individuals should not be able to lever banned off-world sales of in-game items into freedom of speech rights. I do not espouse the commodified/non-commodified distinction myself, primarily because of the reason that MMORPG’s are by nature properties set aside for the expressive activities of the players and so it is not necessary to show the existence of commercial speech to demonstrate the expressive nature of the forum. I mentioned the sometimes fruitless efforts of game developers to ban real world sales of in-game products to support the argument that these worlds are de facto more than games and therefore they will have a precedent-setting effect on future situations where virtual worlds are used for non-gaming purposes. However, non-enforceability has been successfully raised to assert constitutional rights in some other types of cases.
Posted by: Peter S. Jenkins | Aug 02, 2004 at 02:24
Cory Ondrejka>Are you saying that the digital worlds aren't where their servers are?
Where is Narnia? In a book? The other side of a wardrobe? In your imagination?
>From a practical standpoint, that's clearly wrong. If a government can get guys with guns to your servers, your world could be made to conform to American laws and regulations, so it sure feels like it's in America.
From a "reality always wins" point of view, any server in the USA can be made to conform to US laws, yes. I wasn't suggesting that the US didn't have jurisdiction over virtual worlds with servers in the USA any more than I'd suggest they didn't have jurisdiction over books brought into the USA.
>Or were you speaking more philosophically
I was speaking both practically and philosophically.
Peter Jenkins' paper began with an argument that virtual worlds are places where a person can "live". It should have begun with an argument that virtual worlds were part of America. If the "informed citizens" argument can be applied to worlds that only exist in the imagination, what next? The right to insert political views into arbitrary novels?
Richard
Posted by: Richard Bartle | Aug 02, 2004 at 03:08
Richard> If the "informed citizens" argument can be applied to worlds that only exist in the imagination, what next? The right to insert political views into arbitrary novels?
The informed citizen rationale indicates that the purpose of freedom of speech is to ensure that individuals have the necessary information to make informed decisions during the voting process. In my paper I indicated that a better fit for MMORPG's is the democratic culture rationale. This indicates that the goal of freedom of speech is to foster a culture in which people can advocate changes in "institutions, practices, customs, mannerisms, speech and dress" as Jack Balkin so succinctly put it. As such, the informed citizen rationale becomes merely a means to the end of ensuring a democratic culture, i.e. deliberative democracy is necessary to uphold general freedoms of expression.
As to MMORPG's only existing "in the imagination", how is a collection of 1's and 0's in a server fundamentally different from the collections of protons, neutrons and electrons that we perceive as solid objects in the real world despite the fact that these objects are 99.999% empty space? (See Eric Drexler, The Engines of Creation).
On comparing virtual worlds to novels, I think that if there is any analogy at all, the issue is not what the book must contain, but rather what the reader can say while reading it. In any event, novels are clearly distinguishable - you do not create a personalized representation of yourself that wanders around inside a novel, has dialogue with the characters, joins guilds and constructs objects there. Granted there is the Interactive Digital Software case in which the US Court of Appeals noted that novels can be interactive and also the American Amusement case where the court even noted that successful literature invites the reader to "quarrel" with the characters. However, such "quarreling" would, at least in the case of any sane reader, not result in a dialogue. The court noted the interactive nature of novels, particularly ones where the reader can choose the ending (e.g. the "Choose Your Own Nightmare" series) to bolster the argument that video games are a form of speech like novels rather than being similar to an interactive board game such as chess which is not a form of speech. The court's statements on interactivity in novels does not mean that they are like virtual worlds for purposes of the company town principle. The court merely stated that some forms of interactive entertainment are speech (novels, video games) and others are not (board games etc.)
Congrats on your new professorship.
Posted by: Peter S. Jenkins | Aug 03, 2004 at 02:26
Peter S. Jenkins>As to MMORPG's only existing "in the imagination", how is a collection of 1's and 0's in a server fundamentally different from the collections of protons, neutrons and electrons that we perceive as solid objects in the real world
Because those 0s and 1s are configured to be read. They are configured to be interpreted, and to engender meaning.
Virtual worlds are not 0s and 1s. They are what those 0s and 1s make manifest in the imaginations of their players. Using your argument, books are merely organisations of atoms (on the page), or 0s and 1s (in your word processor), yet you don't seem to have any trouble distinguishing Narnia from America.
>the issue is not what the book must contain, but rather what the reader can say while reading it.
Why doesn't this work if you substitute "virtual world" for "book"? If I'm playing a virtual world, people can come up to me in the real world and tell me I should vote for them, just as they can if I'm lost in a book.
>you do not create a personalized representation of yourself that wanders around inside a novel, has dialogue with the characters, joins guilds and constructs objects there
So the issue is that I construct a personalised representation, rather than merely identify with a representation that someone else has constructed? And because of this, people now have freedom of speech rights over me in the imaginary place where I constructed that representation? Since when has the construction of a personalised representation been the litmus test for whether people can talk unrestrictedly to me or not?
And all these rights flow from the fact that the servers where the 0s and 1s are are located within US national borders, because that makes the imaginary worlds they project be in the USA? But if the situation was absolutely identical except that the servers were in Canada, the players wouldn't have to put up with people intent on "informing" them?
It would be inconvenient, but I'm sure that if all it took to protect the magic circle from this kind of interference was to use a server farm in a country that didn't try to interpret all legal concepts using a framework frozen in the 18th century, well, developers would do it.
Richard
Posted by: Richard Bartle | Aug 05, 2004 at 04:54
Richard> It would be inconvenient, but I'm sure that if all it took to protect the magic circle from this kind of interference was to use a server farm in a country that didn't try to interpret all legal concepts using a framework frozen in the 18th century, well, developers would do it.
My paper dealt with the issue from the perspective of U.S. law because it clearly applies to U.S. players playing a game on a U.S. server. For non-U.S. players and/or non-U.S. servers, the jurisdictional issues are complex and would warrant a separate paper on their own.
However, I wouldn't put too much faith in invoking non-U.S. law as a way around the problems you see arising from free speech in MMOG's. Asian courts are taking an activist approach to player rights. Also, the European Court of Human Rights, while they have not yet considered the issue in the context of virtual worlds, endorses the company town principle, citing Marsh - see
Appleby v. United Kingdom (May 6, 2003, para. 47)
http://www.legislationline.org/view.php?document=60603&ref=true
So the wisdom from the 18th century not only extends across the centuries but across the ocean too!
Peter
Posted by: Peter S. Jenkins | Aug 06, 2004 at 17:37