Play the game
Video games, value, and free speech
The Supreme Court will soon hear a case
concerning the state of California’s right to regulate the sale of violent video games to minors. Writing for The Washington Post, game designer Daniel Greenberg thinks that the First Amendment should protect video games. His argument relies on the value of video games:
Gameplay is a dialogue between a player and a game. Reading a book or watching a film can also be considered a dialogue, but the ability of the audience to respond is far more limited. […]The exploration and self-discovery available through books and movies is magnified
in video games by the power of interactivity. A new generation of games features real changes in the story based on the morality of a player’s decisions. Mature-rated games such as “BioShock,” “Fable 2″ and “Fallout 3″ go far beyond allowing players to engage in imaginary violent acts; they also give players meaningful consequences for the choices that they make.
Leaving aside the specific jurisprudence of the First Amendment, this raises a number of moral issues.
First, does speech have to be valuable in order for it to be protected? In order to answer this question, we should ask why we protect free speech at all.
One reason might be that free speech benefits society as a whole. This type of argument, famously made by John Stuart Mill, claims that free speech creates a “marketplace of ideas” that will help the best ideas come to the fore, and refine or reject the bad ones.
This view protects all speech that conveys ideas. So maybe video games like PacMan would not count, but complex games like BioShock might. The point is not that they convey “good” ideas, but rather that they convey ideas period. The “marketplace” will decide whether or not they are good, not the government.
Someone from the liberal tradition might defend free speech very differently. A person has a natural right to be free, a liberal might argue, as long as she does not harm anyone else. Thus, since speech normally does not harm anyone else in a direct or grave manner, everyone has a right to engage in it freely.
If this argument is correct, games don’t have to convey ideas to be protected speech; they just have to be not directly harmful.
For my part, I think the second, liberal argument is more appealing. Suppose, for example, that I cheap auto repair write a page of nonsense and start distributing it. Most people would want the First Amendment to protect my right to do so, but no one thinks my nonsense attempts to express any real message. On this view, Greenberg’s argument about the value or seriousness of video games is largely irrelevant.
Of course, both philosophical concerns—respect for society’s ideological marketplace and for peoples’ individual rights of expression—can operate within the law at the same time. And it seems that on both of these views, at least complex video games deserve protection.
Another question, though, is to what extent minors have first amendment rights. If adults can more or less consume whatever video games they want, for the above reasons, the state may still have a legitimate interest in limiting the exposure of minors. They are more susceptible to harmful influences; their personalities and identities are still forming.
This is a complicated issue beyond the scope of this post, especially since questions of parent’s rights also arise. However, it should be noted that for an argument in this vein to work California would need to prove that playing actually does cause serious harm to minors. For Greenberg’s part, he cites data suggesting they generally do not.
Photo by Flickr user AltoExyl used under a Creative Commons Attribution license.