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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james_fudgeIf I am misunderstanding your point expand on it in the comments and i'll talk about it in there.07/31/2015 - 12:23pm
james_fudgeIt's clearly part of a broader internal fight against people like Sargon.07/31/2015 - 12:21pm
james_fudgeBig perm: fair point. On the other hand that's its origins and not saying that in some way would be a disservice to our readers07/31/2015 - 12:21pm
Andrew EisenMatt - What is the argument that Sargon supposedly debunked?07/31/2015 - 12:06pm
Big PermThat said, I don't think it's a shit article.07/31/2015 - 11:22am
Big PermNot really a fan of "one individual aligned with Gamer Gate attempted to shame a prominent figure within its own ranks". It should be encouraged that we call out hipocracy, and instead I feel that shines a negative light on such a thing.07/31/2015 - 11:21am
james_fudgeI'm curious what our GG-aligned readers think of our Necromancer story? Was it fair? Unfair?07/31/2015 - 11:11am
E. Zachary KnightMatt, That the whole stink over the articles is a bunch of BS? Because that is the only part that is BS.07/31/2015 - 8:29am
MattsworknameOh btw, info, are you still refering to that "gamers are dead" argument? Cause sargon of akkad just did a 3 video series that proves it's based on bullshit07/31/2015 - 6:46am
MattsworknameInfo: thats what you call clickbaiting to the highest level07/31/2015 - 5:43am
InfophileAnd here's why you never judge an article by its title: "Microsoft Gives All Windows 10 Users the Finger" - http://www.themarysue.com/microsoft-windows-10-middle-finger/ (I'm looking at you, people still mad about "Gamers are Dead")07/31/2015 - 5:09am
Matthew Wilsonhttp://www.bloomberg.com/news/videos/2015-07-31/khan-academy-s-sal-khan-studio-1-0-full-show-7-30- not game related, but this is a good interview.07/30/2015 - 8:52pm
Goth_SkunkFinally, I never misspelled Chipman's name. So, feel free to try your luck again, but pick an opponent you can beat.07/30/2015 - 8:32pm
Goth_Skunk@Technogeek: I paid for the experience of the seat, and upon completion of the movie determined that the extra for the seat wasn't worth it. Additionally, your opinion is not law. You thinking the movie is crap does not make it so.07/30/2015 - 8:31pm
Craig R.1st I heard of Pixels was seeing trailer in theater. Was interested until Sandler appeared, then it became an instant 'Nope'.07/30/2015 - 4:52pm
james_fudgesick burns are not always allowed in the shoutbox.07/30/2015 - 4:28pm
MechaCrashIt's especially funny because I said "you'd have to be a moron to enjoy it," and Goth boasted about enjoying it, as if that does anything to change my opinion of the movie or of him.07/30/2015 - 4:19pm
TechnogeekMatthew: Back when that law was first implemented, I kept trying to come up with a scenario where it would be anything other than an unmitigatedd sisaster. Nothing ever came to mind.07/30/2015 - 4:16pm
Matthew Wilsonhttp://arstechnica.com/tech-policy/2015/07/new-study-shows-spains-google-tax-has-been-a-disaster-for-publishers/ no duh Sherlock!07/30/2015 - 4:10pm
TechnogeekI can't even make a joke about that. It's like poking fun at Donald Trump's hair.07/30/2015 - 4:01pm
 

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