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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @

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« Blogging the State of Play | Main | America's Army for Xbox? »

November 14, 2003

Games as Speech

Posted by Ernest Miller

One of the issues near and dear to my heart.

Rebecca Tushnet

Games are different, because they were interactive, better, richer, more empowering, more speechy. The implication for free speech is that they are closer to the core of speech. When you defend porn, you talk about James Joyce, when you defend about Grand Theft Auto you talk about Second Life.

Is choice really speech? Exercising what is artistically relevant (such as in bricolage or collage) is generally considered speech, no problem. Recording the action from a game looks like a movie. On the other hand, a football player also makes choices that create a result that looks like a movie.

The analogy is often made to "choose your own" adventure books. The problem with video games is not simply that you make choices, but that you also have skills (hand-eye coordination). The extra element is manipulating control, which seems more like the sort of thing football players do.

What would happen if videogames did encourage violence (just an assumption)?

Regulate conduct, not speech. Regulate the joystick, not the speech.

Existing regulations target "realistic" violence, not shooting bubbles. So, can we target certain conduct tied to specific types of speech? [My initial response can be found here: Michigan State Professor Argues Against Free Speech for Videogames.]

Analogy to hate crimes, targeting some actions/conduct for harsher penalties is they are joined with certain types of speech.

Second aspect to this idea of interactivity. The availability of choices are determined by the game designer. Constraints can vary from very limiting, such as Pong, or with lots of choices, like a canvas and paint.

The point being that interactivity is not an important aspect of our arguments as to why regulation is not a good response to regulating games.

UPDATE 2 1245 ET

David Greenfield, author of the book Virtual Addiction.

He wonders why people use this technology and why it has such an impact.

Social Connections vs Social Isolation
Are games a form of communication?
What is being communicated and is it constructive?
When you're existing in a virtual game world are you the same person as you are in real-time interaction?
Inner-tainment pulls us away from real-time social interaction
Entertaining in small doses, but seems to be psychologically damaging/limiting in larger doses, over longer durations.

We are genetically predisposed to socially connect and communicate
The question is whether virtual communications are as healthy as real-time relationships
I believe all communication technologies are attempts to connect to others more efficiently, but perhaps with the cost of less depth and quality.
Does the internet affect our ability to judge and obtain social relationships

The power of the internet
A-moral: we imbue positive or negative value based on how we use or abuse it
Computer and internet technology have a positive valance associated with them
Just because the technology exists, and is profitable, doesn't mean it is harmless, and does not improbe the quality of life.
When we are gaming we are NOT doing other things (wasting time?)

Many factors contribute to the power of the net
Accessibility: Open 24-7
Intensity: The power of connecting to the world and something bigger than ourselves
Stimulation: An online High
Time Distortion: Time has not meaning when you're online
Anonymity: A virtual Mardis Gras
Disinhibition: Let it All Hang Out
Acclererated Intimacy: feel closer to people more quickly
Ease of Access: Convenience is the mother of Invention

Addiction is addiction: My brain made me do it....

All pleasurable behaviors change our mood and brain chemistry. The internet probably do this as well.

The neurotransmitter dopamine, may be common to many, if not all addictive processes.

Definitions of use, abuse, dependence and addiction (tolerance and withdrawal)

Any pleasurable behaviors (enhanced dopamine) will tend to be continued and repeated:

Anecdote: Cable company guy says people really, really upset when internet goes down (much less upset than when cable goes down)

Greg Costikyan

Rothko vs. Pong: If painter Rothko's minimalism can be protected, why not Pong?

In April, Judge Stephen Limbaugh ruled that computer and video games had "no conveyance of ideas, expression or anything else that could possibly amount" to free speech. So, Costikyan provides a short history of games as political speech (whole presentation will be on his website later):

The Landlord's Game

Boardgame. Patented 1904, published in 1910.

Design by Lizzie J. Magie.

The original version of "Monopoly," which is a clearly derivative product. Magie was a "Single Taxer," an adherent of the political and economic theories of Henry George. Clear didactic purpose for game.

Class Struggle in 1978 ... designed by Bertell Ollmann, a Marxist professor. The players are "workers" with one as the "capitalist."

Capital Punishment, published 1981
Get your criminals into death row or life imprisonment. Heavily pro-death penalty.

Hidden Agenda - first computer game on list, published in 1989

Clearly intended as criticism of Reagan-era policy

Blance of the Planet, published in 1990 by Chris Crawford.

Purpose is to maintina economic growth, but minimize death from pollution, the greenhouse effect, the political beliefs are quite explicit and can be changed in the game.

Violence published in 1999 by Greg Costikyan

RPG, a lot like D&D but you break into people's houses and kill them. Attack on easy reliance on violence in games.

Re-inventing America II (1999 & 2000)
Sponsored by Markle Foundation by Costikyan, examined every major federal program.

September 12th: A Toy World 2003

Gonzalo Frasca - Commentary on the war on terrorism
Only strategies, don't bomb, or bomb and kill everyone.

Under Ash (2003)

Arabic FPS, play a Palestinian Freedom Fighter working to overthrow the evil Zionest regime. The main purpose is explicitly pro-Palestinian propaganda.

Jack Balkin

Movies weren't officially protected expression until 1952.

Improvisational theater is the better analogy, no one seriously believes they aren't protected by First Amendment.

Games and morality? A lot of art is directly connected to morality, touching on and playing with the conventions of morality. Similar arguments can be made

First Amendment is an insufficient ground on which to locate importance of playing. Reason is the Benkler's diagram of all the different relationships. 1st Amendment is being between state and players or state and platform producer. However, 1st Amendment doesn't get into relationship between players and platform.

Purpose is to create a democratic culture, to let people create themselves.

Deals with free speech on the internet generally, in particular, you can see how it applies to gaming.

Game designer has the clearest case for protection under the first amendment. State can regulate speech acts, if the purpose is unrelated to regulation of expression. For example, regulation of gambling. If virtual currency was convertible with real world currencty ... then you can regulate gambling in the virtual world. The same problem we see with internet gambling are present in the design of the games as well.

When one avatar murders another avatar ... usually no problem, but there is a crossover effect in the real world. There are things like communication torts,

Violation of copyright and trademark: not insulated by occuring in a game world

Defamation against person in real world, but also defamation of a avatar (falsely accused of being an eBayer) ... if the injury is serious enough, the law will intervene.

Fraud ... take money from someone by trick, but currency and items become convertable with real world money.

Destruction of property, mayhem and rape. Freedom of speech perfectly protects these virtual actions, but the problem is that as soon as you start structuring games so that they blur and cross over into the real world, then you get into what the law in interested in. Bankruptcy court takes over a game and force the game to continue until everything in the game can be sold. The is a result of the propertization of the game. If you want to create certain types of spaces, you have to avoid both commodification and real-world commodificatin. FoS will protect you to the extent that your space if about speech, but if your space is about property, then FoS won't protect you.

Weaknesses of US free speech law doesn't really protect the interest of the players as against the platform designer (not a state actor), the law protects the rights of the designer quite strongly (IP, property, designers own free speech). If you want to protect the right to play, you have to see past existing FoS doctrine. The values of the players will place limits on the FoS and contractual rights of the designers ... FoS values. Part can be gotten at by good design, some might come through laws like consumer protection (not well-structured to vinicate these rights). Must rethink how we restructure contract and freedom of expression, platform owners and players.

Q & A

Existing games (i.e., football) and the law question:

JB: You generally can't sue in sports, such as for an injury for a foul. However, if you are really, really egregious, then the law can step in (one player shoots another on the court).

What if commodification happens, against free speech wishes of game designer? Should there be 1st Amendment protection?

JB: Yes. Amount of protection may turn on the commecial interests of the specific medium.

Analogy to Company Town cases

JB: Very important to helping to determine rights. However, doctrine is withering on the vine, such as the shopping mall cases. But this is important for how we think of the rights of the game players. But even if that is the way to think about it, it might not be best to view as constitutional rights. Might be better to use ordinary legislation and code.

Body of contentious law about how 1st Amendment law applies to institutions (universities, "private" clubs).

JB: Autonomy and freedom of association also play a role here. Dale in cyberspace claim.

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