Acting, Kinect and Protected Speech

December 10, 2010 -

Is acting protected speech, and if so, is acting in a video game - especially in the age of motion sensing console devices - protected speech as well? This is the theory thrown out in a thought provoking post called "Is Playing a Video Game Conduct or Speech? Lessons from Microsoft Kinect" over at Law Law Land Blog.

Steven Smith kicks that idea around a bit, comparing the acting kids do in video games to the actions in a school play. The idea begins at GameStop, where Smith is buying a game for his daughter:

I was drawn to the display of the Microsoft Kinect, the new hands-free controller that is designed to allow the ultra-interactivity of the Nintendo Wii, but without any controller at all. You (and, apparently, one million of your likeminded early adopter friends) stand in front of a 3D camera system, which translates your movements in real life into the movement of your avatar on the screen.

Which leads him to a thought about video games and free speech:

I immediately thought of it as acting in a play. The real you is performing the movements from the gallery, while the virtual you is acting them out, in costume and on set, on the stage of your TV. It is like playing cops-and-robbers in the playground, except no one else need be present and no playground is required.

This brings it back to the oral arguments that took place on November 2 before the Supreme Court and a question from Justice Elena Kagan. She asked: "Do you think video games are speech in the first instance? Because you could look at these games and say they are the modern-day equivalent of monopoly sets. They are games. They are things that people use to compete. You know, when you think about some of them — the first video game was Pong. It was playing tennis on your TV. How is that speech at all?"

Smith talks about how the EMA handled the question:

The Entertainment Merchants Association and the State of California both assumed that the games were speech, in the sense of the creative expression of the artists and programmers who made the games. Where they differed was simply over the issue of whether the state had a compelling basis to regulate this assumed speech. But Kagan was challenging the underlying assumption, asking the more fundamental question, are these games speech at all? And does it depend on the nature of the game (Monopoly and Pong, with little or no storyline, versus Dungeons and Dragons and Grand Theft Auto, which are all about the story — and, in the case of D&D, the basement black lights, Cheetos, and Sprite).

Which leads to a series of important points:

To his credit, Paul Smith, counsel for the Entertainment Merchants Association, handled the question with aplomb. He argued that the definitions in the law contain an underlying presumption that the games at issue contain a narrative structure, i.e., a plot of some kind. He then argued that the players of such plot-driven games are like actors, “helping to make the plot, determine what happens in the events that appear on the screen, just as an actor helps determine what happens in a play. You are acting out certain elements of the play and you are contributing to the events that occur and adding a creative element of your own. That’s what makes them different and in many ways wonderful.”

That is, in my humble opinion, the real point about video games and why they deserve First Amendment protection, no matter how violent some of them may be. We allow minors to act in very violent plays, movies and television shows. As far as I am aware, no state has sought to prohibit children from acting in such creative works. (They may need parental permission under labor laws or for private, contractual liability reasons; but no one says that the kids themselves cannot get together and act out whatever horrors their minds can conjure up.) Video games simply expand the relevant stage on which these games of pretend may be acted out.

Smith goes on to say that anyone can be a virtual actor thanks to video games. Sometimes players have to follow a script and sometimes they engage in violent acts, but no more than a child actor playing a role in a violent movie or an adult-themed TV show. This closing thought says it best:

The First Amendment not only protects the William Shakespeares, Alfred Hitchcocks, Mario Puzos and Take Twos of the world — it also protects the actors (including child actors) who wish to play Brutus, Norman Bates, Michael Corleone, or CJ Johnson.

 
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ZippyDSMleePapa Midnight: Care to take a look at this and tell me what you think about it? http://www.amazon.com/Frisby-FS-5010BT-Surround-Speakers-Bluetooth/dp/B00EYX1N2S/03/26/2015 - 10:27pm
Matthew Wilson@AE I think he means both.03/26/2015 - 9:23pm
ZippyDSMleeuhg either a nap after being up 30 hours or working on my comp blah. Oh wow when did the the all shout box page show 3 times as many shouts 0-o03/26/2015 - 8:30pm
Andrew EisenMechaCrash - Sony in particular or Hollywood in general?03/26/2015 - 7:38pm
Matthew Wilson@mach no way in hell, so that is why I want them to stay away.03/26/2015 - 7:21pm
MechaCrash"Get the movie right" is preferable to "stay away," but do you really think they won't screw it up?03/26/2015 - 7:19pm
Craig R.And yes, 90's games. Damn near all of my fav computer & console games were from that decade03/26/2015 - 7:00pm
Craig R.I'd take the NCAA seriously if they'd bite instead of bark03/26/2015 - 6:59pm
Andrew EisenConster - Sure, give me a few minutes.03/26/2015 - 3:05pm
Consterhttp://sanfrancisco.cbslocal.com/2015/03/26/salesforce-ceo-says-company-is-cancelling-all-programs-in-indiana-over-lgbt-discrimination-fears/ http://edition.cnn.com/2015/03/25/politics/mike-pence-religious-freedom-bill-gay-rights/index.html03/26/2015 - 2:55pm
ConsterApparently Salesforce and the NCAA are also upset over SB 101. I know they're not video-games related, but maybe add a line to the article?03/26/2015 - 2:54pm
Andrew EisenThat said, I doubt that if the movie gets made, it will be similar to either version of the show. But, Star Wars movies will be out again and the designs are still pretty awesome so it's got a chance.03/26/2015 - 2:34pm
Andrew EisenPeople my age and older with disposable income and a fondness for nostalgia.03/26/2015 - 2:32pm
Matthew Wilson@AE I am kinda surprised sony would want to make a movie of something that is 30 years old. I woulder how many people remember robotech?03/26/2015 - 2:24pm
Andrew EisenProbably not but my wish is that Hollywood make good anime movies.03/26/2015 - 2:20pm
Matthew Wilsonhttp://variety.com/2015/film/news/robotech-movie-sony-tv-series-anime-1201460191/ am I the only one that wishes Hollywood would stay a million mile away from anime?03/26/2015 - 1:29pm
MaskedPixelantehttp://www.comicbookmovie.com/fansites/markcassidycbm/news/?a=117247 Because when I think "all new, all different", my mind jumps to a hero that's served on FOUR different Avengers teams.03/26/2015 - 11:31am
Matthew Wilsonnot shocked, lets see how gencon reacts.03/26/2015 - 11:01am
Andrew EisenAnd for those of you keeping track, Indiana's SB 101 was signed into law this morning by Gov. Pence.03/26/2015 - 10:58am
james_fudgeyeah!03/26/2015 - 9:17am
 

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