If you are reading this, then before you go any further, sign The Gamer Petition, an independent campaign started in order to mobilize the gaming community before the case of Schwarzenegger v. ESA and EMA is heard. This landmark Supreme Court case will determine whether video games will continue to be protected as free speech like any other respectable medium of art. If you’ve not already been made aware of this case, then we’re glad you’re here.
Here is what The Gamer Petition states:
We, the undersigned American video game consumers, purchase, rent and play video games the way we do other entertainment content such as movies and music. We respectfully request that you hold that video games are indeed free speech, protected under the First Amendment, like other entertainment media.
Today was the last day to file, “friend of the court briefs” to be be considered by the court before the case is heard. Well, the gaming pioneers over at Id Software have done just that. In a 32 page document, Id states many reasons why games should receive the same free speech protection as do movies, books and other forms of media, and we’ve sifted through the entire thing to outline them. If you enjoy legal jargon, feel free to read the entire brief here.
The brief begins by outlining who Id is and why they have any reason to address the court. We all know that Id helped to pioneer gaming as it is today and that their games have been brought into question many times before, but being a legal document, this all must be re-iterated at length:
Id Software LLC (“Id Software”) is a limited liability corporation organized under the laws of Delaware. It has been recognized as a pioneer in the creation and development of video games. See Micro Star v. Formgen Inc. Id Software has also been active in explaining why the First Amendment protects video games as much as any other artistic medium, having been a party in James v. Meow Media, Inc. and Sanders v. Acclaim Entm’t Inc. It also submitted a brief amicus curiae in Interactive Digital Software Ass’n v. St. Louis County. In addition, two briefs submitted in the instant case make specific, negative references to Id Software’s work. See Brief of Amicus Curiae Eagle Forum Educ. & Legal Def. Fund in Support of Petitioners(referring to the video game Doom); Brief of Amici Curiae California State Senator Leland Yee, Ph.D. (referring to the video game Wolfenstein 3D). These amici have thus put Id Software’s interests directly at issue.
They then go on to say how their livelihoods depend on being able to create video games, and that this ruling would threaten their own human expression and free speech rights:
… from the perspective of individuals who create and develop video games, whose livelihood depends on such activity, and one of whose primary forms of expression consists of such activity. The statute under review not only threatens their expression, but also threatens to destabilize an artistic movement of which these individuals form part of the vanguard. A decision by this Court affirming the Ninth Circuit would protect important constitutional interests, confirm the status of video games as a fully protected form of expression, and substantially serve the interests of Id Software.
What they are basically saying is, that if you take away games as a form free speech, then you take away the creators rights to free speech as well. Just as you would if a piece of literature or film was not considered free speech. They then go on to summarize their argument:
As a matter of content and form, video games are a projection of such traditional media as literature and film, both of which the First Amendment protects in full. In fact, the themes on which video games rely are staples of fiction … This being true, this Court could not deny full protection to video games without making an artificial distinction among forms of art. This Court would not ask whether a book or film lacks serious value, either for minors or for adults. The First Amendment fully protects such works, leaving the individual to decide what his or her expressive fare will be. As this Court has made clear, the First Amendment does not permit any department of the government, or even a majority of the voters, to dictate the expressive activities of others … Numerous lower courts have reached this very conclusion, and this Court should confirm the correctness of their decisions. Video games are a form of art presumptively entitled to the protection of the First Amendment … A game can be every bit as expressive as any other work of art. In addition, to seek to deny protection to video games because of their interactivity mistakes a virtue for a flaw.
They then go on to draw comparisons to Homer’s “The Illiad” (Which you probably read in high school) I’ve always thought The Odyssey would make a great Action/RPG myself.
No legislature subject to the First Amendment could prohibit a minor from purchasing a copy of The Iliad. After all, the Iliad is a bedrock of western civilization and a staple of many a curriculum. But the Iliad – actually read – is not a polite book. People die horrible deaths in this epic, after they have cooperated with their killers, after they have begged for mercy, after we have learned about their loving families. Consider the fate of Dolon, a young man caught spying by the Greeks. After he has helped his captors, revealing his comrades’ positions, he learns that Diomedes will do away with him:
With that, just as Dolon reached up for his chin to cling with a frantic hand and beg for life, Diomedes struck him square across the neck – a flashing hack of the sword – both tendons snapped and the shrieking head went tumbling into the dust.
To describe this scene as “graphic” or “violent” – “a flashing hack of the sword” – “both tendons snapped” – a “shrieking head went tumbling into the dust” – is almost superfluous. The imagination allows us to see and hear Dolon’s decapitation. The Iliad is full of such images, for Homer does not flinch in his descriptions. A god does not simply walk in anger. Instead, “Arrows clang at his back as [he] Quake[s] with Rage.”
And they are not wrong, the imagination is capable of conjuring up just as vivid an image as a video game. So why protect literature and film, yet allow video games to be scrutinized?
They go on to say that:
A person might respond that Homer should sanitize his violence, that he should tell his story without being graphic. Homer chooses the contrary. The Iliad, accepts violence as a permanent factor in human life and accepts it without sentimentality, for it is just as sentimental to pretend that war does not have its monstrous ugliness as it is to deny that it has its own strange and fatal beauty.
Needless to say, the First Amendment fully protects the Iliad as a work of creative expression, for minors as well as for adults. In precisely the same way, the First Amendment would protect the Iliad – or the epic story of the Spartans at Thermopylae – as a comic book. (300) And so too would the First Amendment protect a film of the Iliad (There have been many), or of Thermopylae (300), as much for minors as for adults. The question then arises how a video game with the same expressive characteristics can somehow lose commensurate protection. The answer must be that it cannot.
I could not agree more. How can you say that The Illiad is protected by free speech, 300 is protected by free speech, and yet DooM is not? Id then goes on to further elaborate on how games are similar to other forms of media:
In their current state, video games bear many of the same formal qualities as books and film, including attention to plot, characters, dialogue and setting. With these qualities in mind, the authors of a video game create narrative parameters in a fictional world to reflect their vision, and the player navigates through the game in relation to these parameters. As with other artistic media, a successful video game creates for the player a rhythm through the story it tells, using both visual and aural tableaux, including such facets as animated figures, props, architecture, landscape, narration and music. And, like other narrative forms of art, including polyphonic music, video games draw a thematic arc from exposition to climax and denouement … video games present fictional worlds that immerse their audiences in a broad range of aesthetic possibilities. And each technological advance enhances the immediacy and scope of such possibilities … As with any form of art, video games draw inspiration from other media. Their narrative, for instance,often derives from myths, and their basic texture is cinematic. With the ‘hero of a thousand faces’ almost always at the center of video games, we see familiar recurring themes: the triumphant underdog, the common man caught up in (and important to) events on a global scale, the outsider proving he is not so much odd as he is special, the unavoidable prophecy fulfilled, hard work rewarded, and so on.
Now, if that wasn’t enough of a comparison between mediums, the argument then goes on to show how video games have been used to inspire other forms of media, such as film. They make reference to DooM, Tomb Raider and Scott Pilgrim vs. The World:
At the same time, video games often provide the template for artists working in other media. Consider film, video games’ closest artistic relative. As the members of this Court may know, Id Software’s Doom was later made into a film starring Dwayne “The Rock” Johnson. Likewise, the cinematic character Lara Croft, played by Angelina Jolie, originated in the video game Tomb Raider. A more recent example of video games’ influence on film is Scott Pilgrim vs. The World. In this film, the hero – much like Hercules – must overcome the seven former boyfriends of his new love.
They even go on to reference new off-Broadway plays that have adapted the themes of classic video games:
The thematic elements of video games have even translated into theater. This past summer, the off-Broadway production Game Play converted iconic video games into comic vignettes. As Seth Schiesel of the New York Times asks in his review: “What if the gorilla in Donkey Kong is really an abusive, down-on-his-luck meathead straight out of a Tennessee Williams script who keeps his handicapped blond paramour (the princess) captive in their topfloor apartment, periodically thrashing the Italian building superintendent (Mario), who attempts to climb the stairs to alleviate the woman’s suffering? What if Pac-Man is really a gluttonous German burgher out to gorge himself while dodging the ghosts of those he has so callously wronged, à la Dickens? What if the pilots in Asteroids are merely profane technicians existentially trapped within a corporation that knows nothing more than to send them into the void to shoot rocks, until they become smaller rocks and smaller rocks, until they become nothing? Video games, then, have the same formal properties as traditional forms of expression. This being the case, a decision to deny full constitutional protection to video games, in addition to being impossible to square with what the First Amendment already embraces, would eviscerate what is perhaps the most vibrant, growing and influential sector of the artistic world today.
Id furthermore states that video games do not fall into any category of unprotected speech such as, “Fighting Words.”
Moreover, the video games subject to the statute do not fall into any category of unprotected expression. First, they are not incitement. Second, they are not obscene, nor do they constitute “variable obscenity” Finally, they are not “fighting words” (They state numerous court cases to back this up) … They are therefore fully protected by the First Amendment, and the state may not restrict access to them on the basis of their content, unless it adopts means narrowly tailored to serve a compelling public interest. A contrary holding, allowing the government to regulate video games on the basis of their content without satisfying strict scrutiny, would make a hash of this Court’s jurisprudence, destabilize a vibrant artistic medium, and subject courts to the impossible task of classifying individual works of art according to their assessed social value.
Indeed, if this law were to be passed, each and every video game would be subject to strict government scrutiny before even being considered for release. That is a task that is not only ridiculous, but damn near impossible and quite frankly a waste of government time and resources. They continue:
The First Amendment would not turn its back on a bad film – complete with bad acting, bad dialogue, bad sets, and a bad score. As the members of this Court are no doubt aware, such films exist. (Many based on video games) And yet the First Amendment would protect such films, because our courts do not judge among works that otherwise fall within a protected medium. These are lines the First Amendment will not allow the courts or any other department of the government to draw.
I could not agree more. But Id makes yet another strong argument before this brief comes to an end: Video Games Distinctive Characteristics Do Not Exclude Them From Full Constitutional Protection.
Their status as games, for example, is irrelevant. “Dungeons and Dragons” is a game, but at least one court has properly recognized it as a form of expression entitled to constitutional protection. Nor is video games’ status as interactive a reason to deny them full protection. For one thing, with the advent of the DVD, film is no longer necessarily passive. A viewer may choose to watch the same scene many times in a row, or skip scenes he or she does not like. Even if the distinction between “passive” film and interactive video games persists, it does not diminish the latter’s claim to full constitutional protection. As many have observed, “interactivity” is inherent to the appreciation of art. Video games are certainly not alone in transporting their audience, in “affecting their audience powerfully.” At the end of the day, therefore, petitioners’ objections to video games reduce to acute anxiety over one medium of violent imagery among many.
Read on as Id presents a final argument, also find a recap and my final thoughts afterward:
Needless to say, the First Amendment does not allow people to assuage their anxiety – even acute anxiety – by suppressing the expressive rights of others. As this Court has noted, the First Amendment precludes even a majority from deciding for everyone else what is palatable or correct as a normative matter. This is not because such matters are unimportant, but instead because – at least in the context of expression – they are not the government’s business. As Justice Kennedy emphasized in United States v. Playboy Entertainment Group, Inc., “The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including ethical and moral judgments about art and literature, can be formed, tested, and expressed.”
Who knows what expression will enable the minors of today, or of the next generation, to prepare for the demands of adulthood? The First Amendment proceeds from the assumption that no one can answer this question well enough to dictate to others. Many of today’s minors already live in a violent world, or may be on the verge of one. Some, for example, may be only a year or two away from service in the military. To be sure, parents are important to the picture, but minors have an independent and compelling claim to the protections of the First Amendment … People are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble. Also important is the ability to engage violence as a serious subject … Historically, cultures have used stories to make sense of senseless acts of violence. Telling stories about violence can, in effect, remove some of its sting and help us comprehend acts that shatter our normal frames of meaning. In sum, video games make a powerful contribution to the world of art and expression, and this Court should confirm that they lie fully within the protective scope of the First Amendment.
So, let’s recap. Id software, pioneers within the video game industry, have filed this brief in opposition to the case of Schwarzenegger v. ESA and EMA. This case would seek to take away video games’ protection under the first amendment right to free speech. Id software claims that since video games are no different from other forms of media such as literature and film, that they should receive equal protection. Numerous lower courts have reached this very conclusion, and Id feels the supreme court should confirm the correctness of these decisions. Id has drawn numerous comparisons to film and literature as well as stage productions, to enhance their belief that these mediums should be treated equally. They have also made it clear that video games do not fall into any of the categories of unprotected speech. Moreover, if the government were to pass this law then they would have to go about the near impossible task of scrutinizing every video game to be released. Id has also stated that video games status as games, is irrelevant. Courts have already recognized games as a form of expression and deemed them protected under the first amendment as well. They have cited numerous court cases to back up each and every argument they have made, and each argument is more compelling than the next. If you allow literature and film to be protected, then so must video games.
It is safe to say that I could not agree more with Id Software. I would judge a good game just as I would a good book or film, since to me, these mediums are one in the same. If a law is to apply to one, it must apply to all. It is as simple as that. If there is no distinct line to be drawn between these forms of media, then no distinct laws can be put into place to decide which recieves protection under our constitution and which does not. I believe that goes against everything that I was taught America stood for. Video games conjur up no less vivid images that do a well written book or well directed film, and the fact that they are interactive is quite frankly, irrelevant. Many gamers out there think that this case is so ludicrous that there isn’t even any reason to pay attention. They simply assume it will be thrown out. However, I’d hate to be the man who said, “I told you so” if somehow this law does pass, and you soon find yourselves unable to play the games you once loved. After all, if this issue is important enough for Id to stand up for, isn’t it important enough for you? If we simply sit idly by while our leaders continue to go unscrutinized as they seek to take away our freedom of speech … then I think we’re all DooMed.
Want to discuss this further? Feel free to e-mail me at Dave@Ripten.com or find me @DaveOshry on Twitter