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Pong revisited: Free speech and video games

Inside the First Amendment

By Kenneth A. Paulson
Senior vice president, the Freedom Forum
Executive director, First Amendment Center

10.21.01

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It's enough to make you long for Pong.

At the dawn of the video-game era, almost a quarter-century ago (and doesn't that make you feel old?), many of us played a simple ping-pong simulation on monochrome screens. The "ball" would scoot across the screen propelled by rectangular "paddles."

There were no studies of links between Pong and teen violence. There was no legislation trying to limit children's access to Pong. And no one filed a suit alleging that Pong had provoked a crime.

Times have changed. In their current generation, video games are incredibly lifelike and increasingly under fire for their violent content.

The city of Indianapolis took the unprecedented step of a new ordinance requiring arcade owners to label games with sexual content or graphic violence and to bar minors from playing those games without parental consent.

The ordinance was initially upheld by a Federal District Court last year, but was then struck down on appeal. Now the city has petitioned the U.S. Supreme Court to review the case.

The ordinance was struck down at the appellate level on First Amendment grounds. How was that possible? Why can't a government restrict access to kids' games?

The short answer: We're not dealing with Pong anymore. Court decisions in the early 1980s consistently found that video games do not involve free expression protected by the First Amendment. But as games have grown more sophisticated, they've taken on more elaborate storylines and graphics. Like movies, the games have characters. Like movies, the games have plots. And like movies, these sophisticated video games are protected under the First Amendment.

In an enlightening and entertaining opinion, Judge Richard A. Posner went to great lengths to explain the plot of a video game called "The House of the Dead."

"The player is armed with a gun-most fortunately, because he is being assailed by a seemingly unending succession of hideous axe-wielding zombies, the living dead conjured back to life by voodoo. The zombies have already knocked down and wounded several people, who are pleading pitiably for help; and one of the player's duties is to protect those unfortunates from renewed assaults by the zombies," Posner wrote.

The court's decision was notable for a number of reasons (beyond the unprecedented exploration of zombie culture.) In the court's view:

  • Video games enjoy some measure of protection as free speech because they contain real messages, ideology and expression.

  • The city has a significant burden if it wants to limit access to video games. It has to show an overriding public interest, based on more than just a hunch that violent games may harm kids.

  • Kids have constitutional rights. Free speech is not something that is awarded with a high school diploma. In the court's words, "Now that 18-year-olds have the right to vote, it is obvious that they must be allowed the freedom to form their political views on the basis of uncensored speech before they turn 18, so that their minds are not a blank when they first exercise the franchise people are unlikely to become well-functioning, independent-minded adults and responsible citizens if they are raised in an intellectual bubble."

Granted, playing a video game involving zombies is not exactly a civics course. But the court's observation is sound. Young people have significant rights of free expression and their entertainment often enjoys constitutional protection.

Muddying the water is an endless array of studies that suggest some harm to young people from violent video games and a corresponding number of studies, books and articles purporting to debunk the research.

Just last month, a professor at Japan's Tohoku University issued a report claiming that children who play computer games may suffer some impairment of the development process in key areas of the brain. "The implications are very serious for an increasingly violent society and these students will be doing more and more bad things if they are playing games and not doing other things like reading aloud or learning arithmetic," Professor Ryuta Kawashima told The Observer newspaper of London.

There's virtually a study each week and it's probably fair to say that the collective results are inconclusive. In any case, the research cited by the city of Indianapolis wasn't persuasive to the Federal Appellate Court.

"The studies do not find that video games have ever caused anyone to commit a violent act, as opposed to feeling aggressive, or have caused the average level of violence to increase anywhere," the court wrote. The Supreme Court may well refuse to take on this case, but it's clear that these issues won't go away.

There's a natural and understandable impulse to try to shield our children from ugly or violent content. The challenge is to provide a safe environment for our children without resorting to overly broad and unconstitutional laws.

In fact, there are some signs that the video-game industry may take a closer look at its own products in the wake of the Sept. 11 terrorist attacks.

"I think that our industry, like any industry, has a responsibility to look at what we do and assess whether tragedies like this should in fact influence how we approach making the products that we make," Doug Lowenstein, president of the Interactive Digital Software Association, told Reuters.

That kind of examination — driven by self-reflection and not the threat of legislation — would be both welcome and constructive.

Ken Paulson is executive director of the First Amendment Center with offices in Arlington, Va., and Nashville, Tenn. His mailing address is:
Ken Paulson
First Amendment Center
1207 18th Ave. S
Nashville, TN 37212

Related

Federal judge backs limits on kids' access to violent video games
Court rejects request to throw out Missouri county's ordinance, ruling that the games aren't constitutionally protected forms of speech.  04.25.02

Watchdog group: Kids have easy access to violent video games
Sen. Joseph Lieberman credits industry for ceasing to market adult games to children but says parents, retailers need to do more to prevent kids from getting violent games.  12.20.02

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