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Tuesday, Nov 24, 2009
A federal judge says computer games don't deserve First Amendment protection. His decision is wrong, stupid and dangerous.
May 6, 2002 | "[There is] no conveyance of ideas, expression, or anything else that could possibly amount to speech. The court finds that video games have more in common with board games and sports than they do with motion pictures."
-- U.S. District Judge Stephen N. Limbaugh Sr.
Saving democracy sometimes means having to wade toward the shore, while fascists unload hell on you from the beachhead. Which means you usually get killed. But you make that run, again and again, because the goal is worth all those lives you lose in the churning sea.
I could have learned this truth about D-Day from a film like "Saving Private Ryan" or a book like "Citizen Soldier." But I'm now grasping it just as vividly from "Medal of Honor: Allied Assault," a computer game.
While the game's Omaha Beach level is derived from the opening of "Ryan," it's a fully interactive re-creation. The object here is to get across the Normandy beach, or die. You die a lot. You're forced to repeat the process -- strafed every step of the way, men screaming all around you -- over and over (and over) again, until you're finally able to reach the bunkers. It's a common conceit in games: play, die, reload, and ride the karmic wheel of kick-ass, until you get it right. But what "Allied Assault's" developers have done is use this feature to express an explicit point about World War II, and what it took to win it.
However, according to a federal judge, this cannot be happening -- there is no larger purpose for computer games. On April 19, Judge Stephen N. Limbaugh Sr. decided that games weren't speech at all, and thus deserve no First Amendment protection.
At issue was a St. Louis ordinance that requires parental consent before children under 17 can buy or play violent or sexually explicit video games. The Interactive Digital Software Association had asked for a summary dismissal of the ordinance, arguing that it violated the First Amendment. Limbaugh disagreed.
How significant is the ruling? The U.S. District Court of Appeals for the 7th Circuit has already ruled, in a separate case involving a similar ordinance, that games are indeed speech. According to Lee Tien, senior staff attorney for the Electronic Frontier Foundation, Limbaugh's ruling doesn't possess sufficient legal kung fu to take down the higher court's decision.
"Technically," says Tien, "no other court is bound by [Limbaugh's] decision, unlike the decision by the 7th Circuit, which binds many district courts in that circuit."
At least for now. "But if it is appealed and upheld," adds Tien, "then you'll have a decision of equal weight to [the 7th Circuit's ruling]."
And that could be a disaster for anyone who wants to see games evolve into a medium every bit as culturally relevant as movies or books. It is, of course, indisputable that the world of gaming is replete with titles that have little redeeming value, just as it is true for every other artistic medium. But as Medal of Honor and other games demonstrate, computer gaming has created a new means of conveying complex, relevant ideas. One more uninformed ruling, and the potential of this medium could be curtailed even further, by legislators with elections to win, and ideologues who've pincered it from both sides of the political spectrum. The stakes really are the future of free expression; and as this ruling makes plain, the need for the game industry to mount a preemptive attack is past due. The time for a counterstrike is now.
