It had to happen, and I’m glad it did: The United States Court of Appeals for the Eighth Circuit overturned a previous ruling and determined video games to be protected speech under the U.S. constitution. (Article here,
actual court order.) It’s not every day you see courts dealing with basic research questions about games, but this one is not stupid at all and touches on some interesting issues. First of all, the court points out that the freedom of speech covers a rather broad range of expressions:
If the first amendment is versatile enough to "shield [the] painting of Jackson Pollock, music of Arnold Schoenberg, or Jabberwocky verse of Lewis Carroll," Hurley, 515 U.S. at 569, we see no reason why the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games are not entitled to a similar protection.
What is missing from this list? Yep, gameplay. The things protected are the ones we find in traditional media, but the dynamical aspect of games are missing. It does open a somewhat hypothetical loophole in which a game might be banned due to its ruleset, independent of its graphics. Would somebody want to ban Tetris or the underlying ruleset of Age of Mythology? Stranger things have happened.
Up till around 2 years ago, I would be making the case that the graphics and back-story of any given game was subordinate to the all-important gameplay (hey, I was young then). Having since thought better of this, I think it is rather the case that graphics have varying degrees of importance in different games, but that their importance typically fades in multiplayer games. The ruling goes for this directly and points to the fact that you can’t have it both ways: You can’t claim that games don’t contain any "content" while claiming that this content is important:
Our review of the record convinces us that these "violent" video games contain stories, imagery, "age old themes of literature,? and messages, ?even an ?ideology,? just as books and movies do." See American Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577-78 (7th Cir. 2001), cert. denied, 534 U.S. 994 (2001). Indeed, we find it telling that the County seeks to restrict access to these video games precisely because their content purportedly affects the thought or behavior of those who play them.
Some people would frame this as a "ludology vs. narratology" conflict, but in actuality ludology means "the study of games" which can include content, and narratology means "storytelling" which is only one kind of fiction and content.
The only major flaw in the court’s reasoning is that ancient mistake of thinking that "everything is interactive":
We note, moreover, that there is no justification for disqualifying video games as speech simply because they are constructed to be interactive; indeed, literature is most successful when it "draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own,"
Interpretation (processing the signs that you are presented with) is not the same as interactivity (you get different signs in reaction to your actions), no matter how clever it makes you sound, OK?
Still, a good day for games, and the first time I’ve seen reasonable arguments about computer games in court.