Are Violent Video Games Free Speech?

Sega's Condemned

Sometime this fall the Supreme Court will be reviewing Entertainment Merchants Association (EMA) vs. Schwarzenegger, challenging a piece of 2005 legislation signed into law by the California governor restricting the sale of violent games to consumers over the age of 18. Violent games were described as those, “in which the range of options available to the player includes killing, maiming, dismembering, or sexually assaulting an image of a human being.”   (Warning: this article contains graphic images from some of the most controversial game titles of the last two decades.)

Where do they think we are? Nazi Germany?

Now slow down – the strictures of the legislation passed by California is not even as harsh as modern Germany where the sales of violent games are heavily restricted or outright banned. Ditto for Australia. The California legislation seeks to criminalize the sale of violent video games to minors.

So why spend a few hundred words worrying about it?

A Matter of Taste? Susannah Breslin vs. Max Hardcore/Rockstar Games vs. Jack Thompson

Follow me here, because I am going to be jumping across points. The imminently readable Susannah Breslin has been writing about the sex industry for about a decade now, covering the Los Angeles area called “Porn Valley.” Recently, Ms. Breslin wrote at length about the conviction of extreme pornographer Max Hardcore (real name: Paul Little) and the prose with which she wrote the piece was injected with an unusual amount of venom for a subject. At its core, the article seemed to suggest that the reason Little should be imprisoned was not necessarily because the graphic content of his videos was somehow toxic to the public, but because Little was a repellent figure.

This got me to thinking about legal scholar Julie Hilden, who recently released a brief position piece about the backlash against so-called “torture porn” in films. Specifically, she was speaking to the repulsion some critics felt against movies like 2007’s Hostel II. What got to Hilden was the increasingly popular labeling of a certain branch of horror in terms that indicated deviant intent on the part of the producers of the film and their prospective viewers. Breslin does something similar in her skewering of Little/Hardcore, leaving, as sinister ellipses, what kind of dark, sick  motivations the creators and consumers of that type of porn might have crawling under their skins.

So too gaming has its decriers who just want to know “what’s wrong with these people?” Loudest among these voices, for a time ,was recently disbarred Miami attorney Jack Thompson who made the first part of the decade leading the charge against so-called violent video games, particularly the products released by Rockstar. Among his targets were the “murder simulators” Grand Theft Auto and Manhunt. To Thompson’s mind, a violent video game was: “Any M-rated game has violence levels unacceptable and definitionally harmful to anyone under 17.” He ascribed to the “garbage in, garbage out” philosophy with regards to content: violent content created violent individuals for Mr. Thompson. Trotting out the specter of Ted Bundy, Thompson said that video games, like pornography, act as a form of training for aggression – not a release.

Like Breslin and like those critics who tut-tutted the slasher Hostel and Saw movies, Thompson suspected something stained in the character of those who made these types of entertainment. To take their arguments at face value, without the benefit of actual data, one would think we are raising a generation of thrill-killers and psychopaths.

The Fallacy of the Garbage In, Garbage Out Argument

Except, what if video games did not cause violence? What if instead it was a combination of disposition and external factors which governed violent responses to violent media? Could it be possible that even after deliberate exposure to violent games for a prolonged period of time, baseline subjects would express “no strong effects associated with aggression caused by [these] violent games?”

Let’s approach it in terms of Jack Thompson’s murder simulator argument also articulated by Lt. General Dave Grossman: their line of thinking holds that similar to how the U.S. military trains its soldiers to kill, video games desensitize players through a process of brutalization, “break[ing] down your existing mores and norms and to accept a new set of values that embrace destruction, violence, and death as a way of life.” But the comparison between military training and gaming is specious at best: those receiving military training are seeking out specific knowledge which they hope to apply to real-world scenarios. According to an article by MIT professor, Henry Jenkins,for a soldier in training there are consequences for not mastering those skills. I am not particularly fond of the line of reasoning that understands that measures aggression studies by measuring how hard a child punches a rubber doll after playing a video game.  The  rubber doll exists in a “circle of play” and therefore it is unlikely that this child’s action will translate into real-world behavior.

And yet the logical fallacy holds: violent video games induce violence. Part of it surely has to do with provocative headlines as with this recent Washington Post piece entitled, “Study links violent video games to violent thought, action.” The same article mentions that Texas A&M researchers neatly refute the conclusions of the research citing bias on the part of the researchers as well as a correspondent decrease in violent crime in the U.S. during a decade in which there has been an increase in the sale of violent video games, with M-rated titles such as Call of Duty: Modern Warfare, Halo 3, and Grand Theft Auto, and most recently, Red Dead Redemption achieving combined sales in the billions.

So in an era where more people are consuming interactive violent content and there is no corresponding increase in violence, why do legislators persist in attempting to create legal boundaries as to who can and cannot consume violent games? If a self-regulating body is good enough for (mainstream) film, why is it not good enough for games?

Legislating Taste

The kid-friendly Wii's Madworld

What the California legislation being considered by the Supreme Court really gets at is the idea of legislating content that we might find objectionable – even if there is no material basis to do so on the behalf of the public good.

Here is where it gets a bit tricky – according to Justice Scalia, this legislation, particularly pertaining to minors, might still pass Constitutional muster. Scalia’s position is that states have the authority to place prohibitions on minors that adults are not subject to. Furthermore, at least at the time of the publication of the quoted piece, Scalia did not hold that violent video games fell under the umbrella of free speech.

What’s interesting – I promise, I’ll call it quits soon – is that a recent ruling in Chicago affirmed ads for violent video games as free speech. Let that roll around for a second: the video game industry can advertise its M-rated games legally (as can the movie industry legally advertise its R-rated films) but legally the game industry cannot expose gamers to mature-rated game content. It is a weird argument – that the young can be legally exposed to the idea of a thing but not its substance, particularly when said substance is simulacrum with (say it with me now) no observable negative effects on the participants.

Again and finally, back to Hilden: “[this kind of] argument makes a poor fit with First Amendment law, because it tends to see us not as the First Amendment sees us – as thinkers, deciding through persuasion and discussion what our politics and culture should be like – but as reflexive actors, responding to stimuli without conscious choice or mental mediation.”

Other Articles By Charles Webb:

“White and Male is the Default:” Homogeneity in the Video Game Industry Pt. I

Platinum Games’ Bayonetta: Beyond the Generic Female

Race and Sex in Comics:

Comics: America as it Was, Part 1

Comics: America as it Was, Part 2

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