Is Playing a Video Game Conduct or Speech? Lessons from Microsoft Kinect

I was in GameStop last week buying my daughter Hawx 2, a T-rated simulated aerial combat video game. As I was standing in line (with all the dads buying M-rated Call of Duty: Black Ops for their under-17 year old sons, while pretending to buy it for themselves), I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen. No longer is the pushing of a button or the swinging of a controller rendered as the action of your avatar; rather, your actual fingers, hands, arms, face and body are re-rendered as the action of your avatar exactly as you performed them. Ladies and gentlemen, at long last, the future is here (minus the flying cars, hoverboards, food hydrators, and everything else we were promised in Back to the Future, Part II).

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

Of course, since I am a lawyer and never turn my lawyer brain off, I immediately recalled the most interesting question that was asked during November 2’s Supreme Court oral arguments in Schwarzenegger v. Entertainment Merchants Association, the decision in which is expected to come down sometime in Spring 2011.

For those of you who have not read my blog post from May or my podcast from earlier this monthwhat is wrong with you let me provide a little background. California, like many states before it, passed a law prohibiting the sale of extremely violent video games to anyone under the age of 18. And, as in each of those many states before it, California’s was struck down on First Amendment grounds by a federal judge, whose opinion was later affirmed by the Ninth Circuit Court of Appeal. But then, unexpectedly, the U.S. Supreme Court decided to hear the case, which sent all First Amendment lawyers’ hearts and minds aflutter, wondering whether the Court intended to tell the states to stop trying to legislate this area once and for all or, instead, intended to create a new exception to the First Amendment for violence, along the lines of obscenity.

All of which brings back to oral arguments on November 2. As expected, most of the justices’ questions and counsels’ arguments focused on the competing policy concerns of the broad protection for speech afforded by the First Amendment versus the facially-reasonable desire by parents to protect their children from exposure to offensively violent imagery.

But then, Justice Kagan asked the most interesting and, I believe, unexpected question of the day — “Do you think video games are speech in the first instance? Because you could look at these games and say they are the modern-day equivalent of monopoly sets. They are games. They are things that people use to compete. You know, when you think about some of them — the first video game was Pong. It was playing tennis on your TV. How is that speech at all?”

This was a great question because it illustrated the factual difference between speech as expression by the creator versus speech as conduct by the actor. Kagan was asking whether there was any difference between the two under the First Amendment.

Shooting a gun at a politician is not protected “speech,” even if one’s motive for doing so is to make a political point. The law draws a line between unprotected actions and protected speech. The most common example given in law school is “crying fire in a crowded movie theater.”

The Entertainment Merchants Association and the State of California both assumed that the games were speech, in the sense of the creative expression of the artists and programmers who made the games. Where they differed was simply over the issue of whether the state had a compelling basis to regulate this assumed speech. But Kagan was challenging the underlying assumption, asking the more fundamental question, are these games speech at all? And does it depend on the nature of the game (Monopoly and Pong, with little or no storyline, versusDungeons and Dragons and Grand Theft Auto, which are all about the story — and, in the case of D&D, the basement black lights, Cheetos, and Sprite).

To his credit, Paul Smith, counsel for the Entertainment Merchants Association, handled the question with aplomb. He argued that the definitions in the law contain an underlying presumption that the games at issue contain a narrative structure, i.e., a plot of some kind. He then argued that the players of such plot-driven games are like actors, “helping to make the plot, determine what happens in the events that appear on the screen, just as an actor helps determine what happens in a play. You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own. That’s what makes them different and in many ways wonderful.”

That is, in my humble opinion, the real point about video games and why they deserve First Amendment protection, no matter how violent some of them may be. We allow minors to act in very violent plays, movies and television shows. As far as I am aware, no state has sought to prohibit children from acting in such creative works. (They may need parental permission under labor laws or for private, contractual liability reasons; but no one says that the kids themselves cannot get together and act out whatever horrors their minds can conjure up.) Video games simply expand the relevant stage on which these games of pretend may be acted out. Anyone with a console and a TV can be a virtual actor, in a virtual play. The other actors, the set and the script are pre-designed and digital, but it is just a play. It is just cops-and-robbers on a virtual playground, and some kids have always enjoyed playing the robber — even if the script might entail “randomly hitting an old lady with a bat, carjacking a station wagon and running over people, or, my personal favorite, running over the person whose car I just stole with the car I just stole.” But rather than seeing the images in the mind as one renders them in “pretend,” the actors now see them in living color on the screen.

Does that somehow make a difference under the First Amendment? I cannot see why. When playing on the playground, kids are capable of creating all kinds of horrible imagery. I recall filling balloons with water dyed red, which I would explode against my head when it was split open by my friend’s pretend battle axe. Would a law passed by the state of California that forbid kids from acting out such violence pass constitutional muster? I doubt it, and I hope not.

Kagan’s question is a good question because it brought a different perspective to the debate — and made the lawyer for the Entertainment Merchants Association consider from that perspective what speech really is. It is not just the expression of the artists and programmers that make the games. It is also the expression of the kids who buy and then act out the games.

If the Entertainment Merchants Association loses this case, I hope a 17-year-old “minor” who is prohibited from buying a violent game sues to enforce her right under the First Amendment to buy and act out the play contained in that game. The First Amendment not only protects the William Shakespeares, Alfred Hitchcocks, Mario Puzos and Take Twos of the world — it also protects the actors (including child actors) who wish to play Brutus, Norman Bates, Michael Corleone, or CJ Johnson.

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