By Dave Oshry
If you are reading this, then before you go any further, sign The Gamer Petition, an independent campaign started in order to mobilize the gaming community before the case of Schwarzenegger v. ESA and EMA is heard. This landmark Supreme Court case will determine whether video games will continue to be protected as free speech like any other respectable medium of art. If you’ve not already been made aware of this case, then we’re glad you’re here.
Here is what The Gamer Petition states:
We, the undersigned American video game consumers, purchase, rent and play video games the way we do other entertainment content such as movies and music. We respectfully request that you hold that video games are indeed free speech, protected under the First Amendment, like other entertainment media.
Today was the last day to file, “friend of the court briefs” to be be considered by the court before the case is heard. Well, the gaming pioneers over at Id Software have done just that. In a 32 page document, Id states many reasons why games should receive the same free speech protection as do movies, books and other forms of media, and we’ve sifted through the entire thing to outline them. If you enjoy legal jargon, feel free to read the entire brief here.
The brief begins by outlining who Id is and why they have any reason to address the court. We all know that Id helped to pioneer gaming as it is today and that their games have been brought into question many times before, but being a legal document, this all must be re-iterated at length:
Id Software LLC (“Id Software”) is a limited liability corporation organized under the laws of Delaware. It has been recognized as a pioneer in the creation and development of video games. See Micro Star v. Formgen Inc. Id Software has also been active in explaining why the First Amendment protects video games as much as any other artistic medium, having been a party in James v. Meow Media, Inc. and Sanders v. Acclaim Entm’t Inc. It also submitted a brief amicus curiae in Interactive Digital Software Ass’n v. St. Louis County. In addition, two briefs submitted in the instant case make specific, negative references to Id Software’s work. See Brief of Amicus Curiae Eagle Forum Educ. & Legal Def. Fund in Support of Petitioners(referring to the video game Doom); Brief of Amici Curiae California State Senator Leland Yee, Ph.D. (referring to the video game Wolfenstein 3D). These amici have thus put Id Software’s interests directly at issue.
They then go on to say how their livelihoods depend on being able to create video games, and that this ruling would threaten their own human expression and free speech rights:
… from the perspective of individuals who create and develop video games, whose livelihood depends on such activity, and one of whose primary forms of expression consists of such activity. The statute under review not only threatens their expression, but also threatens to destabilize an artistic movement of which these individuals form part of the vanguard. A decision by this Court affirming the Ninth Circuit would protect important constitutional interests, confirm the status of video games as a fully protected form of expression, and substantially serve the interests of Id Software.
What they are basically saying is, that if you take away games as a form free speech, then you take away the creators rights to free speech as well. Just as you would if a piece of literature or film was not considered free speech. They then go on to summarize their argument:
As a matter of content and form, video games are a projection of such traditional media as literature and film, both of which the First Amendment protects in full. In fact, the themes on which video games rely are staples of fiction … This being true, this Court could not deny full protection to video games without making an artificial distinction among forms of art. This Court would not ask whether a book or film lacks serious value, either for minors or for adults. The First Amendment fully protects such works, leaving the individual to decide what his or her expressive fare will be. As this Court has made clear, the First Amendment does not permit any department of the government, or even a majority of the voters, to dictate the expressive activities of others … Numerous lower courts have reached this very conclusion, and this Court should confirm the correctness of their decisions. Video games are a form of art presumptively entitled to the protection of the First Amendment … A game can be every bit as expressive as any other work of art. In addition, to seek to deny protection to video games because of their interactivity mistakes a virtue for a flaw.
They then go on to draw comparisons to Homer’s “The Illiad” (Which you probably read in high school) I’ve always thought The Odyssey would make a great Action/RPG myself.
No legislature subject to the First Amendment could prohibit a minor from purchasing a copy of The Iliad. After all, the Iliad is a bedrock of western civilization and a staple of many a curriculum. But the Iliad – actually read – is not a polite book. People die horrible deaths in this epic, after they have cooperated with their killers, after they have begged for mercy, after we have learned about their loving families. Consider the fate of Dolon, a young man caught spying by the Greeks. After he has helped his captors, revealing his comrades’ positions, he learns that Diomedes will do away with him:
With that, just as Dolon reached up for his chin to cling with a frantic hand and beg for life, Diomedes struck him square across the neck – a flashing hack of the sword – both tendons snapped and the shrieking head went tumbling into the dust.
To describe this scene as “graphic” or “violent” – “a flashing hack of the sword” – “both tendons snapped” – a “shrieking head went tumbling into the dust” – is almost superfluous. The imagination allows us to see and hear Dolon’s decapitation. The Iliad is full of such images, for Homer does not flinch in his descriptions. A god does not simply walk in anger. Instead, “Arrows clang at his back as [he] Quake[s] with Rage.”
And they are not wrong, the imagination is capable of conjuring up just as vivid an image as a video game. So why protect literature and film, yet allow video games to be scrutinized?
Originally published at ripten.com, click the link to read more or for more information.