Video games are protected speech

The U.S. Supreme Court waded into murky and, perhaps, treacherous waters Monday when it agreed to decide whether the Constitution permits California to prohibit the sale of violent video games to people younger than 18.

Lower courts, including a unanimous three-judge panel of the U.S. 9th Circuit Court of Appeals, already have struck down the 5-year-old statute as an impermissible infringement on free speech because it attempts to extend existing regulations on obscenity to depictions of violence. It’s easy to see why, since the California law incorporates the kind of vague and debatable language contemporary 1st Amendment jurisprudence usually abhors: Among other things, it regulates the sales of games that portray “killing, maiming, dismembering or sexually assaulting an image of a human being” in a “patently offensive” manner. (Is there a polite way to do one of those things?) It also prevents children from buying games with violence that appeals to children’s “deviant or morbid interests” (whatever those might be) or that lack “serious literary, artistic, political or scientific value.” (Now there’s a logical and aesthetic minefield if ever there were one.)

This is a well-intentioned but ill-conceived law that not only undermines several generations of legal progress toward making free speech a day-to-day reality in this country, but also threatens an emerging expressive industry in which California and the United States currently play a leading role. More important, it’s an unnecessary gesture toward child protection in an area millions of parents already are handling competently on their own. Video games are not pornographic magazines, which can be purchased with pocket change and consumed in private. Even used versions of popular games can cost $50, and very few young children or even adolescents make discretionary purchases of that size on their own. Games, moreover, are played out in the open on televisions and computers. A home in which those things go unmonitored has issues of parental supervision alongside which inappropriate video games are a minor matter.

Should it decide to overturn the lower courts, the Supreme Court will have to confront the problem of crafting a standard that can sustain relevance in a field that evolves on virtually a daily basis, often in directions even its most visionary participants have failed to foresee.

What, for example, is the utility of regulating the bricks-and-mortar end of the video-game business, when increasing numbers of games are purchased as downloads from the Web or played entirely online, often through sites whose host computers are outside the United States, beyond the reach of our best-intended regulation? What about the breakneck convergence of gaming with other expressive technologies? A fair number of popular games, for example, are based on bestselling graphic novels, which clearly are entitled to 1st Amendment protection as aesthetic speech. Could we sustain a distinction that protects a reader’s ability to consume a work of literature as a series of images and text blocks on a page, but not to interact with the very same characters in the very same situations as moving pictures on a television or computer screen? If you’ve seen “Avatar,” then it doesn’t take much imagination to foresee the coming convergence between 3D CGI film technology and gaming’s interactive dimension. Will those works of imagination be held to the standards we have now for films, or measured against one crafted for games?

Almost precisely two years ago, I wrote a column for this page on the controversy that surrounded a stunning — and to my sensibility — rather repellant new version of a controversial game called Grand Theft Auto, which concluded: “One of the most interesting things about this game is that it’s the product of a global youth culture whose frame of reference has been shaped by mindless American action films, by post-apocalyptic Euro-American fantasy fiction and Japanese graphic novels. Grand Theft Auto’s ‘authors’ are a pair of young Englishmen, and the technical crew that put it together is in Scotland. They’ve thrust their Balkan protagonist into an America of the imagination that exists nowhere and, in a virtual sense, everywhere.

“Censorship will not avail against this kind of compelling cultural shift — nor should it. Grand Theft Auto IV is a work of genius — but it’s genius in the service of nothing more than sensation and profit. With this game, the interactive video industry has turned an aesthetic corner and is now an art form in search of an artist.”

That artist and the compelling work he or she will do has yet to emerge, but it is bound to happen any day, which is why the Supreme Court should regard the California statute as an infringement on free speech rather than as a child protection measure — and affirm the 9th Circuit’s decision to strike it down.