Brown v. EMA and the Power of Video Games

Monday, June 27, 2011, marked a monumental event in video game history.  In the case of Brown v. EMA, the Supreme Court ruled 7-2 in favor of the game industry, striking down a California law that made it a crime to sell or rent violent video games to a minor, punishable by fine of no more than $1000.  More important, the Court ruled that video games qualify as protected speech under the First Amendement to the Constitution.    According to the ruling, “Like protected books, plays and movies, they communicate ideas through familiar literary devices and features distinctive to the medium.  And ‘the basic principles of free speech…do not vary’ with a new and different communication medium” (citing the case of Joseph Burstyn, Inc.  v. Wilson).   The jist of the ruling cites parental responsibility over a law that restricts free speech.  It goes without saying representatives of the games industry are praising the ruling as a vindication of games as a medium, while opponents are criticizing the court for, among other things, siding with business over the protection of impressionable young minds.

As it turns out a colleague in my department at Delaware sent me a message a few days ago asking for my thoughts on the recent court case, so the following are a slightly edited version of my reply. I was hoping to gather my thoughts together into something more in-depth and substantial, but deadlines have begun to hang over me like the Sword of Damocles, and I’ve found it increasingly challenging to keep on top of my blogpostery (however, as you see I’ve found plenty of time for neologismcraft).  What follows is a slightly edited version of my reply.

My biases should be understood up front.  If you’ve read my earlier posts, followed my twitter or by happenstance stumbled across my article on the history of James Bond video games you’ll get a sense of my feelings on the ruling.   I’ve been playing video games since I was five.  I’ve spent a good part of my life playing, discussing, and occasionally writing on them.  I have been a participant in the wonderful subculture we as video game enthusiasts have crafted for ourselves.  But I also see reality is that video games are no longer a fringe medium, enjoyed only by a insulated collection of enthusiasts, they are becoming as pervasive as the cell phone.  When I make my commute to my internship at the National Constitution Center not a day goes by that I see people on the train playing games, from billiards to Angry Birds.  And as a supporter of this medium I wholeheartedly embrace and celebrate this evolution of games into the mainstream.

But more than the pervasive new medium I see video games as a unique form of creative expression and even a new art form, despite the cries of critics of other media.  This ruling gives greater freedom for developers to expand to new heights of cultural expression.  If it had gone the other way, games may have gone the way of comic books following the institution of the Comics Code: stunted and stripped of their expressive power (only in the last twenty years or so have comics recovered).  I cannot say enough of how important this ruling is. 

The California law was not the first law of its kind, and several states have put up laws that make it a crime to sell mature video games to minors.  Usually, they end up being struck down in the higher courts, but what made this case different is the defenders of it made the argument that not only were video games objectionable, they possessed no cultural value whatsoever, and thus were not subject to protection under the Constitution.  Not just violent or obscene games (and there are plenty of excessively violent games just as there are violent films), but all games that do not fit certain cultural standards. To argue that games have no cultural value and to have federal sanction through the Supreme Court would open up the door to a cultural evisceration of the medium, as the law argues that video games adversely affect children in a way that other media (such as film and music, which are self-regulating) do not.  To give a parallel example, that’s like saying Schindler’s List is valueless because the Saw series exists.  A similar thing happened to comic books during the 1950s, where content became very tightly restricted under the Comics Code. 
The Court’s ruling in favor of the game industry quashed this by stating that video game content consitute protected speech.  Even the old conservative Tony Scalia compared censoring video games to doing the same for Grimm’s fairy tales. 

As i mentioned earlier, I’m finding many similarities in the way critics attack video games and the way their predecessors did for comic books in the 1950s and film in the early decades of the twentieth century. It wouldn’t be a stretch to say Frederic Wertham’s Seduction of the Innocent or Henry James Foreman’s Our Movie Made Children could be repurposed today as an attack on video games because they provide similar arguments: objectionable content (be it violent or criminal or what whomenver is arguing it considers lewd or obscene) breeds objectionable behavior.  From where I’m looking, many of the laws attempting to restrict video game access to minors operate under a similar assumption. 

Personally I feel that when it comes to creative content, be it films or video games, the best regulation is self-regulation.  In fact the whole reason the Entertainment Software Ratings Board (ESRB) was created in the first place was to prevent the government from imposing restrictions on content.  As for restricting content, I think restricting access to content (something the industry already does) is the lesser of two evils when compared to banning the content outright.  And censorship leads to dark places.  If video games like Bioshock can’t handle mature subjects, how can movies do so?  The thing that gets lost is the ESRB is pretty good as far as industry self-regulations go. And it typically does better than the film and music industries as far as keeping it out of the hands of children.  But after the point of sale there isn’t much any industry can do.  For me a lot of it comes down to parental common sense.  I make sure the seven-year-old girl and eight-year-old boy I help my mom babysit don’t play games I think are too gory or have bad language (this is coming from someone who was regularly playing Doom 2 and Mortal Kombat 3 before the age of 13).  
All this being said, video game developers should take the opportunity the ruling has granted to take more chances to explore the human condition.  Now is the time for video games to flex their muscles and take their expressive powers to new heights.  (Seth Schiesel of the New York Times wrote an interesting piece following Brown v. EMA that examines the resposibilities of the industry with First Amendment protection) I’d love to see more like Missile Command (one of the best commentaries on nuclear war I have ever seen) than say Duke Nukem Forever, a game where the biggest moral dilemma is whether or not you should kill an enemy by kicking them in the balls.  First Amendment protection has granted video games great power.  And with great power comes great responsibility.


About kevinimpellizeri

I'm a Ph.D. candidate in history at the University of Delaware where I am studying the social and cultural impact of video games in America. When I'm not studying history or playing video games I offer my voice on 91.3 WVUD Newark and review bad horror movies at You can follow me on Twitter at @KDImpellizeri
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