Parental guidance

A legal battle over video games answers the wrong questions

By Jess Kilby

Back in April, a federal judge in Missouri ruled that video games aren’t protected free speech. The ruling is an odd one, and not necessarily for the reasons you would think. (Those being: “What kind of dumbass would fail to see that video-game authoring is a valid form of self-expression, especially given the medium’s capacity for story-telling, social commentary, and player-based decision making” and “Civ III,” to name a few . . .)

No, Judge Stephen N. Limbaugh Sr.’s ruling is a curious one in that the media, the legal eagles brought in for thoughtful analysis and righteous indignation, and Limbaugh himself all seem to have missed a fairly germane angle to the case.

At the heart of the matter is a St. Louis ordinance that requires kids under the age of 17 to get their parents’ permission before renting violent or sexually explicit video games. (And as any avid gamer knows, there are no shortage of such titles.)

The Interactive Digital Software Association, a video-game lobbying group, asked for the ordinance to be summarily dismissed, on the grounds that it violated the First Amendment.

Limbaugh threw out IDSA’s request on April 19, with a sweeping declaration that video games shouldn’t be granted free-speech status merely because they’ve got background stories or other textual elements.

“The court admits that these ‘scripts’ were creative and very detailed,” Limbaugh says in his ruling. “However, this ‘background’ expression does not make every automobile, gadget, or machine created, a form of expression.”

The gaming community’s response to Limbaugh’s ruling has been two-fold. On the one hand, free-speech advocates have taken heart in the fact that the reach of Limbaugh’s ruling is limited.

“Technically, no other court is bound by [Limbaugh’s] decision,” says Lee Tien, senior staff attorney for the Electronic Frontier Foundation, in a May 6 Salon article by Wagner James Au.

Also encouraging to free-speech advocates is the existence of a previous ruling (in response to a similar ordinance, no less), handed down by the US District Court of Appeals for the 7th Circuit, which clearly states that video games are protected speech. The 7th Circuit ruling trumps Limbaugh’s, though that could change.

“If [Limbaugh’s decision] is appealed and upheld,” Tien told Salon, “then you’ll have a decision of equal weight to [the 7th Circuit’s ruling].”

This has been the measured, intellectual response to the controversial ruling. But there has also been anger, disbelief, and outright ridicule of Limbaugh’s judicial capabilities.

The ridicule is somewhat deserved. In making his determination, Limbaugh relied solely on videotaped excerpts from four relatively outdated games — Fear Effect, Doom, Mortal Kombat, and Resident Evil — and managed to misidentify the last two as “Mortal Combat” and “Resident of Evil Creek” in his court opinion. These errors have been an endless source of glee for dissenting gamers — slanderwhore.com writer Crash Bond crows “[W]here Judge Ignorant came up with this creek that produces evil, is beyond me” — but they also raise a more serious question, also pondered by those upset with the ruling: Did Limbaugh really give these games a fair shake?

Salon’s Au takes that question to the next level, asking whether it’s fair to judge the creative merits of an entire genre by a few admittedly “shlocky” examples.

“As with pornography and gratuitously violent films, censorship inevitably targets media that’s perceived to have nothing of value to say,” he writes, pointing out that the St. Louis ordinance is specifically designed to regulate violent games that lack “serious literary, artistic, political, or scientific value as a whole for minors.”

Henry Jenkins of Technology Review buttresses this argument with the judiciary’s favorite vice — precedent.

“The constitutional claims of a medium have historically rested on our understanding of its highest potential — not its worst excesses,” he writes in a June 7 article. “Several decades of legal disputes over pornography have, if nothing else, determined that the works must be taken as a whole, rather than read in parts, to determine whether they were lacking in literary, political, or intellectual value.”

What Au, Jenkins, and other defenders of the gaming industry are getting at is the potential of the genre to evolve, as proven by the number of games that have already moved beyond the mindless first-person shooter model. And while some argue that the gaming industry is actually stagnating — a problem that censorship would only exacerbate — others point to the advent of new content-heavy genres like Alternative Reality Gaming (see “Get a Clue,” August 9), and the continued popularity of multi-user role-playing games like Ultima Online, Everquest, and the new, highly-lauded Neverwinter Nights, as proof that the gaming industry is, in truth, on its way to a place where free speech will be a very valuable commodity.

Which gets back to the original point, being that Limbaugh, IDSA, and like have missed something here. If game designers are arguing that they deserve First Amendment protections because their products are the creative equivalent of movies and other protected media, what relevance does an ordinance like St. Louis’s have to their case? Teenagers are also required to get parental permission at most major video stores in order to rent R-rated movies.

The IDSA case gave Limbaugh the unfortunate chance to opine that video games contain “no conveyance of ideas, expression or anything else that could possibly amount to speech,” a view that will hopefully become obsolete upon appeal. But being lumped in with a medium that is afforded free speech protections should be viewed as fodder for the gaming industry’s own legal cannon next time around, when hopefully, they’ll pick their battles a little more carefully.

Jess Kilby can be reached at jkilby@phx.com. “Technophilia” highlights the latest and greatest of the tech world and runs once a month.