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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Andrew EisenNow, having said that, what sites are you reading that are claiming that if "you self-identify as a Gamer, you're immediately the problem" or that gamers are "obligated to stop harassment"? Or was that hyperbole too?09/21/2014 - 1:03am
Andrew EisenFirst of all, ONE person in the Shout box suggested an obligation to call harassers out on their harassing but only after YOU brought it up. Plus, Techno said "when you see it happening." If you don't see it, you're not under any obligation.09/21/2014 - 1:02am
Sleaker@Craig R. - at this point I don't even know what the hashtags are suppsed to be in support of. what does GamerGate actually signify.09/21/2014 - 12:21am
Sleaker@AE - Hyperbole for the first 2, but it seems like some of the comments in the shout are attempting to place blame on fellow gamers because they aren't actively telling people to stop harassing even though they don't necessarily know anyone that has.09/21/2014 - 12:16am
Andrew EisenSleaker - Who the heck are you reading that is claiming "all gamers are bad," we "need to pass laws or judgement on all gamers," that if "you self-identify as a Gamer, you're immediately the problem," or that gamers are "obligated to stop harassment"?09/20/2014 - 9:44pm
erthwjimhe swatted more than just krebs, I think he swatted 30 people http://krebsonsecurity.com/2014/05/teen-arrested-for-30-swattings-bomb-threats/09/20/2014 - 9:31pm
Craig R.Btw, the guy who swatted security expert Brian Krebs? He got picked up recently. It can be done.09/20/2014 - 8:55pm
Craig R.Such things are not done in a vacuum... hence why the 4chan and other logs show what fools you've all been, tricked into doing the trolls' work09/20/2014 - 8:49pm
Sleaker@Technogeek - How do you call someone out that anonymously calls in a SWAT team, or sends threats to people?09/20/2014 - 7:04pm
Technogeek"It also doesn't mean you're obligated to stop harassment from all gamers that are doing so." I'd say you're certainly obligated to call them out when you see it happening.09/20/2014 - 5:17pm
SleakerNow if you disagree with anything in my last 2 posts then we obviously have a difference in world view, and wont come to any sort of agreement. I'm fine with that, maybe some people aren't?09/20/2014 - 5:09pm
SleakerIt also doesn't mean that just because a news outlet says that Gamers are the problem and you self-identify as a Gamer, you're immediately the problem. It also doesn't mean you're obligated to stop harassment from all gamers that are doing so.09/20/2014 - 4:59pm
SleakerJust to re-iterate: People getting harassed is wrong. Just because someone is harassed by so called 'gamers' doesn't mean that all gamers are bad. nor does it mean that you need to pass laws or judgement on all gamers.09/20/2014 - 4:56pm
SleakerAnd furthermore just because someone doesn't 'crusade against the evil' that doesn't make them the problem. You can have discussion with those around you. There's a thing called sphere of influence.09/20/2014 - 4:54pm
Sleaker@Conster - one person getting harassed is a 'problem' only so far as the harassee's are doing it. Just because a select few people choose to act like this doesn't make it widespread. Nor does it immediately make everyone responsible to put an end to it.09/20/2014 - 4:54pm
james_fudgeno worries09/20/2014 - 4:15pm
TechnogeekI misread james' comment as "we can't have a debate without threatening" there at first. Actually wound up posting a shout about death threats and "kill yourself" not technically being the same thing before I realized.09/20/2014 - 3:59pm
james_fudgeDon't hit me *cowers behind Andrew*09/20/2014 - 3:20pm
ConsterYou take that back right now, james, or else. *shakes fist menacingly*09/20/2014 - 3:00pm
james_fudgeOur community is awesome. We can have a debate without threatening to kill each other.09/20/2014 - 2:50pm
 

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