Gameplay is not free speech!

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.

8 thoughts on “Gameplay is not free speech!”

  1. Just one point: after just doing my Professional Issues module at university, I found out that you cannot patent algorithms: Gameplay is essentially algorithmic. So maybe, because of this, is it possible to infer that “algorithms are not free speech”. I seriously doubt that they looked into this factor of games at all. I would guess that they simply overlooked this facet of games.

    As a designer using mechanics as emotive content, is it possible ALL I can ever possibly hope to achieve is copying algorithms that appear in real life – war, politics, economics, relationships etc. etc. ?

    Or, is it possible that we can still say emotive things with entirely non descriptive algorithms? And if that is true, then would such algorithms be patentable (seeing as how they’d only be useful in the abstract context of our games, and not in real life? Algorithms are, after all, only unpatentable because no-one should be able to hold rights over obvious processes).

    Just some thoughts.

    My friend JP was going to write exactly what you just did, by the way. You beat him to it!

  2. Nice interpretation Jesper… Of note, in the complaint/declerations filed yesterday in Washington state, we purposefully included commentary to the effect that gameplay alone is expressive, as well as all the other elements that go into the game (art, story, audio, etc). The main example given is the Omaha Beach mission from Medal of Honor, in that through the gameplay experience, the player is able to sense the desperation, chaos and hopelessness of the invasion. We also try to get across the point that players themselves are expressive by interacting with a game, etc. Sadly, not sure were you can pull down the court files yet…

  3. 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?

    Do Choose-Your-Own-Adventure books count as interactive? What about modern day children’s books with pop-ups, tabs, and fake bunny fur?

  4. Do Choose-Your-Own-Adventure books count as interactive?
    I would say yes – even if there are only a high granularity of choices, they are still choices that affect the journey (if not necessarily the outcome) of the story
    What about modern day children?s books with pop-ups, tabs, and fake bunny fur?
    Popups and tabs could make the game interactive, but fake fur is just a form of tactile feedback. It wouldn’t affect the journey of the story.

    Err. Sorry for my half assed reasoning. Perhaps it would be better to recall Crawford’s appraisal of the game/story dilmma. A game is somewhere between a toy and a story in terms of narrative control. A toy, obviously has no explicit narrative control (only implicit – player defined goals), while a story has as strong a narrative control as possible: it cannot, ofcourse, control your thought & intepretation, big brother style.

    Interpretation is one of the few universal human freedoms… and you can tell narratologists are seething about it.

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  6. Just wanted to comment on Bezzy?s note above ?found out that you cannot patent algorithms: Gameplay is essentially algorithmic?.
    This is indeed the case, but does not relate to whether they or games are speech. Algorithms cannot be patented due to the nature of the uniqueness and inventiveness tests applied in patent law. Speech does not have to be either unique or inventive to be speech (in a legal sense) and hence fall under US constitutional protection, indeed speech is quite free to be unoriginal and dull.

  7. I just have to say that i see absolutely no reason to ban video games. They are definitely free speech, and I have been happily playing them for about 12 years now. I’m 15. The first games i played included a fair degree of gore and violence, but this has completely failed to influence me negatively in any way, shape, or form, and, as I see it, anybody who actually thinks that you can turn on low gravity mode and jump out a window, or type the cheat for invincibility and go out on rampages is rather stupid an gullible. If they think that violence is a prevalent in real life as it is in video games, then, quite frankly, they are rather daft.

  8. A person chooses to play certain games becuse it appeals to them. Whether or not the game influences a person in reality is due entirely to their upbringing. Blaming a hardcore game for some act of violence person commits is crazy. Are you going to blame a person for being a softy for playing casual game downloadc?

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